[Federal Register Volume 79, Number 135 (Tuesday, July 15, 2014)]
[Proposed Rules]
[Pages 41225-41245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16355]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2013-0105; 4500030114]
RIN 1018-AZ91


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Mount Charleston Blue Butterfly (Plebejus shasta 
charlestonensis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate 
critical habitat for the Mount Charleston blue butterfly (Plebejus 
shasta charlestonensis) under the Endangered Species Act. In total, 
approximately 5,561 acres (2,250 hectares) are being proposed for 
designation as critical habitat. The proposed critical habitat is 
located in the Spring Mountains of Clark County, Nevada. If we finalize 
this rule as proposed, it would extend the Act's protections to this 
species' critical habitat. We also announce the availability of a draft 
economic analysis of the proposed designation of critical habitat for 
the Mount Charleston blue butterfly.

DATES: We will accept comments on the proposed rule or draft economic 
analysis that are received or postmarked on or before September 15, 
2014. Comments submitted electronically using the Federal eRulemaking 
Portal (see ADDRESSES) 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 August 29, 2014.
    Public Meeting: We will hold a public meeting on this proposed rule 
on August 19, 2014, from 6 to 8 p.m. at the location specified in 
ADDRESSES. People needing reasonable accommodations in order to attend 
and participate in the public meeting should contact Dan Balduini, 
Nevada Fish and Wildlife Office, as soon as possible (see FOR FURTHER 
INFORMATION CONTACT).

ADDRESSES: You may submit comments on the proposed rule or draft 
economic analysis by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R8-ES-2013-0105, 
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-R8-ES-2013-0105; 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).
    Document availability: The draft economic analysis is available at 
http://www.fws.gov/Nevada, at http://www.regulations.gov at Docket No. 
FWS-R8-ES-2013-0105, and at the Nevada Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT). The coordinates or plot points or 
both from which the map in the rule portion is generated, as well as 
any additional tools or supporting information that we may develop for 
this critical habitat designation, will also be available from these 
sources and included in the administrative record for this critical 
habitat designation.
    Public meeting: The public meeting regarding the proposed critical 
habitat designation for the Mount Charleston blue butterfly will be 
held at the U.S. Fish and Wildlife Service office building, 4701 N. 
Torrey Pines Drive, Las Vegas, Nevada.

FOR FURTHER INFORMATION CONTACT: Edward D. Koch, Field Supervisor, U.S. 
Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340 
Financial Blvd., Suite 234, Reno, Nevada 89502-7147; telephone (775) 
861-6300 or facsimile (775) 861-5231. If you use a telecommunications 
device for the deaf (TDD), call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. This is a proposed rule to designate 
critical habitat for the endangered Mount Charleston blue butterfly 
(Plebejus shasta charlestonensis). Under the Act, critical habitat 
shall be designated, to the maximum extent prudent and determinable, 
for any species determined to be an endangered or threatened species 
under the Act. Designations and revisions of critical habitat can be 
completed only by issuing a rule. In total, we are proposing 
approximately 5,561 acres (2,250 hectares) for designation as critical 
habitat for the Mount Charleston blue butterfly in the Spring Mountains 
of Clark County, Nevada. This proposal fulfills obligations to submit a 
proposed critical habitat rule or finalize a not prudent determination 
for critical habitat for the Mount Charleston blue butterfly to the 
Federal Register in accordance with In re: Endangered Species Act 
Section 4 Deadline Litig., Misc. Action No. 10-377 (EGS), MDL Docket 
No. 2165 (D.D.C.).
    The basis for our action. 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 she determines that the benefits of such exclusion outweigh 
the benefits of specifying such area as part of the critical habitat, 
unless she 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 prepared an economic analysis of the proposed designation of 
critical habitat. In order to consider the economic impacts of the 
proposed critical habitat designation, we prepared an analysis of the 
economic impacts of the proposed critical habitat designation and 
related factors. We are announcing the availability of the draft 
economic analysis, and seek 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. We have invited peer reviewers to comment on our 
specific assumptions and conclusions in this critical habitat 
designation. Because we will consider all comments and information 
received during the comment period, our final determinations may differ 
from this proposal.

[[Page 41226]]

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 accurate and as effective as possible. Therefore, we request 
comments or information from other concerned government agencies, the 
scientific community, industry, or any other interested party 
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 species 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 may not be 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of Mount Charleston blue butterfly 
habitat;
    (b) 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;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change;
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why; and
    (e) The larval host or adult nectar plants: Astragalus calycosus 
var. calycosus (Torrey's milkvetch), Oxytropis oreophila var. oreophila 
(mountain oxytrope), Astragalus platytropis (Broad keeled milkvetch) 
and Erigeron clokeyi (Clokey's fleabane), Hymenoxys lemmonii (Lemmon 
bitterweed), Hymenoxys cooperi (Cooper rubberweed), and Eriogonum 
umbellatum var. versicolor (sulphur-flower buckwheat).
    (f) Potential effects from the Carpenter 1 Fire that occurred in 
July 2013 to populations and distribution of the Mount Charleston blue 
butterfly, and changes to the amount and distribution of habitat for 
the Mount Charleston blue butterfly that may have been altered by the 
fire, including information on the ability of the Mount Charleston blue 
butterfly or its habitat to recover from the effects of the Carpenter 1 
Fire.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Whether we should remove some areas from the final designation 
of critical habitat due to high levels of recreational use that may 
have significantly diminished the presence or quality of the physical 
and biological features of this habitat, as discussed below in Areas 
Surrounding Recreation Infrastructure in the Proposed Critical Habitat 
Designation section. These locations are within the established 
boundaries or developed infrastructure (for example, roads, parking 
areas, fire pits, etc.) of campgrounds and day use areas that have 
extremely high levels of public visitation and associated recreational 
disturbance. We are specifically seeking public comment on whether the 
locations, identified in Areas Surrounding Recreation Infrastructure 
below, contain the physical or biological features essential to the 
conservation of the species to inform our determination of whether they 
meet the definition of critical habitat. A map of the specific 
locations for potential removal can be found on the Nevada Fish and 
Wildlife Office Web site at: http://www.fws.gov/nevada/ and at http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0105.
    (5) Information on the projected and reasonably likely impacts of 
climate change on the Mount Charleston blue butterfly and proposed 
critical habitat.
    (6) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the benefits of including or excluding areas that 
exhibit these impacts.
    (7) Information on the extent to which the description of economic 
impacts in the draft economic analysis is a reasonable estimate of the 
likely economic impacts.
    (8) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the associated documents of the 
draft economic analysis, and how the consequences of such reactions, if 
likely to occur, would relate to the conservation and regulatory 
benefits of the proposed critical habitat designation.
    (9) 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.
    (10) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate 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.
    All comments submitted electronically via http://www.regulations.gov will be presented on the Web site in their entirety 
as submitted. For comments submitted via hard copy, 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, Nevada Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Previous Federal Actions

    In an earlier Federal Register volume, we published a final rule to 
list the Mount Charleston blue butterfly as endangered (78 FR 57750, 
September 19, 2013). This proposed critical habitat designation is 
based upon determinations made in the final listing rule. For 
additional information on previous Federal actions, please refer to the 
September 19, 2013, final listing rule.
    On September 27, 2012, we published a proposed rule (77 FR 59518) 
to list the Mount Charleston blue butterfly as endangered, and the 
lupine blue butterfly, Reakirt's blue butterfly, Spring Mountains 
icarioides blue butterfly, and two Spring Mountains dark blue 
butterflies as threatened due to similarity of appearance to the Mount 
Charleston blue butterfly. A 60-day comment period following 
publication of this proposed rule closed on November 13, 2012. Based on 
comments we received during this period, we determined that designation 
of critical habitat for the Mount Charleston blue butterfly is prudent. 
This document consists of a proposed rule to designate critical habitat 
for the Mount Charleston blue butterfly.

[[Page 41227]]

Background

    It is our intent to discuss below only those topics directly 
relevant to the designation of critical habitat for the Mount 
Charleston blue butterfly in this proposed rule. For further 
information on the subspecies' biology and habitat, population 
abundance and trends, distribution, demographic features, habitat use 
and conditions, threats, and conservation measures, please see the 
final listing rule for Mount Charleston blue butterfly, published 
September 19, 2013 (78 FR 57750); the September 27, 2012, proposed rule 
(77 FR 59518); and the 12-month finding for the species (76 FR 12667; 
March 8, 2011). These documents are available from the Environmental 
Conservation Online System (ECOS) (http://ecos.fws.gov/ecos/indexPublic.do), the Nevada Fish and Wildlife Office Web site (http://www.fws.gov/nevada/), or from the Federal eRulemaking Portal (http://www.regulations.gov).

Prudency Determination

    In our proposed listing rule for the Mount Charleston blue 
butterfly (76 FR 59518; September 27, 2012), we concluded that 
designation of critical habitat was not prudent in accordance with 50 
CFR 424.12(a)(1), because collection was a threat to the Mount 
Charleston blue butterfly, and designation was expected to increase the 
degree of this threat to the subspecies and its habitat. In that 
proposal, we requested information from the public during the public 
comment period and solicited information from peer reviewers on whether 
the determination of critical habitat was prudent and determinable, 
what physical or biological features were essential to the conservation 
of the subspecies, and what areas contained those features or were 
otherwise essential for the conservation of the species.
    In the final listing rule, we reported that peer reviewers 
commented that designating critical habitat would not increase the 
threat to the Mount Charleston blue butterfly from collection, because 
those individuals interested in collecting Mount Charleston blue 
butterflies would be able to obtain occurrence locations from other 
sources, such as the internet. In addition, the U.S. Department of 
Agriculture's Forest Service (Forest Service) issued a closure order to 
butterfly collecting in areas where the Mount Charleston blue butterfly 
occurs, thus minimizing the threat of collection (78 FR 57750). Based 
on information gathered from peer reviewers and the public during the 
comment period, we determined that it was prudent to designate critical 
habitat for the Mount Charleston blue butterfly (78 FR 57750).
    For more information regarding our determination to designate 
critical habitat, please see our responses to comments in the final 
listing determination for Mount Charleston blue butterfly published 
September 19, 2013. Based on the information we received on the 
physical or biological features essential to the Mount Charleston blue 
butterfly, and information on areas otherwise essential for the 
subspecies, we have determined that the designation of critical habitat 
is prudent and determinable, and we are proposing critical habitat at 
this time.

Species Information

Taxonomy and Species Description
    The Mount Charleston blue butterfly is a distinct subspecies of the 
wider ranging Shasta blue butterfly (Plebejus shasta), which is a 
member of the Lycaenidae family. Pelham (2008, pp. 25-26) recognized 
seven subspecies of Shasta blue butterflies: P. s. shasta, P. s. 
calchas, P. s. pallidissima, P. s. minnehaha, P. s. charlestonensis, P. 
s. pitkinensis, and P. s. platazul in ``A catalogue of the butterflies 
of the United States and Canada with a complete bibliography of the 
descriptive and systematic literature'' published in volume 40 of the 
Journal of Research on the Lepidoptera (2008, pp. 379-380). The Mount 
Charleston blue butterfly is known to occur only in the high elevations 
of the Spring Mountains, located approximately 40 kilometers (km) (25 
miles (mi)) west of Las Vegas in Clark County, Nevada (Austin 1980, p. 
20; Scott 1986, p. 410). The first mention of the Mount Charleston blue 
butterfly as a unique taxon was in 1928 by Garth (p. 93), who 
recognized it as distinct from the species Shasta blue butterfly 
(Austin 1980, p. 20). Howe (in 1975, Plate 59) described specimens from 
the Spring Mountains as the P. s. shasta form comstocki. However, in 
1976, Ferris (p. 14) placed the Mount Charleston blue butterfly with 
the wider ranging Minnehaha blue subspecies. Finally, Austin asserted 
that Ferris had not included specimens from the Sierra Nevada Mountains 
of extreme western Nevada in his study, and in light of the geographic 
isolation and distinctiveness of the Shasta blue butterfly population 
in the Spring Mountains and the presence of at least three other well-
defined races (subspecies) of butterflies endemic to the area, it was 
appropriate to name this population as a subspecies, P. s. 
charlestonensis (Austin 1980, p. 20).
    Our use of the genus name Plebejus, rather than the synonym 
Icaricia, reflects recent treatments of butterfly taxonomy (Opler and 
Warren 2003, p. 30; Pelham 2008, p. 265). The Integrated Taxonomic 
Information System (ITIS) recognizes the Mount Charleston blue 
butterfly as a valid subspecies based on Austin (1980) (Retrieved May 
1, 2013, from the Integrated Taxonomic Information System on-line 
database, http://www.itis.gov). The ITIS is hosted by the United States 
Geological Survey (USGS) Center for Biological Informatics (CBI) and is 
the result of a partnership of Federal agencies formed to satisfy their 
mutual needs for scientifically credible taxonomic information.
    As a subspecies, the Mount Charleston blue butterfly is similar to 
other Shasta blue butterflies, with a wingspan of 19 to 26 millimeters 
(mm) (0.75 to 1 inch (in)) (Opler 1999, p. 251). The Mount Charleston 
blue butterfly is sexually dimorphic; males and females occur in two 
distinct forms. The upper side of males is dark to dull iridescent 
blue, and females are brown with some blue basally (Opler 1999, p. 
251). The species has a row of submarginal black spots on the dorsal 
side of the hind wing and a discal black spot on the dorsal side of the 
forewing and hind wing, which when viewed up close distinguishes it 
from other small, blue butterflies occurring in the Spring Mountains 
(Austin 1980, pp. 20, 23; Boyd and Austin 1999, p. 44). The underside 
of the wings is gray, with a pattern of black spots, brown blotches, 
and pale wing veins giving it a mottled appearance (Opler 1999, p. 
251). The underside of the hind wing has an inconspicuous band of 
submarginal metallic spots (Opler 1999, p. 251). Based on morphology, 
the Mount Charleston blue butterfly is most closely related to the 
Great Basin populations of the Minnehaha blue butterfly (Austin 1980, 
p. 23), and it can be distinguished from other Shasta blue butterfly 
subspecies by the presence of a clearer, sharper, and blacker post-
median spot row on the underside of the hind wing (Austin 1980, p. 23; 
Scott 1986, p. 410).
Distribution
    Based on current and historical occurrences or locations (Austin 
1980, pp. 20-24; Weiss et al. 1997, Map 3.1; Boyd and Murphy 2008, p. 
4, Pinyon 2011, Figure 9-11; Andrew et al. 2013 pp. 1-93; Thompson et 
al. 2014, pp. 97-158), the geographic range of the Mount Charleston 
blue butterfly is in the upper elevations of the Spring Mountains, 
centered on lands managed by the

[[Page 41228]]

Forest Service in the Spring Mountains National Recreation Area of the 
Humboldt-Toiyabe National Forest within Upper Kyle and Lee Canyons, 
Clark County, Nevada. The majority of the occurrences or locations are 
along the upper ridges in the Mount Charleston Wilderness and in Upper 
Lee Canyon area, while a few are in Upper Kyle Canyon. Please refer to 
Table 1 of the final rule listing the Mount Charleston blue butterfly 
as an endangered species (78 FR 57750) for a synopsis of locations 
where the Mount Charleston blue butterfly has been detected since 1928.
Habitat and Biology
    Weiss et al. (1997, pp. 10-11) describe the natural habitat for the 
Mount Charleston blue butterfly as relatively flat ridgelines above 
2,500 m (8,200 ft), but isolated individuals have been observed as low 
as 2,000 m (6,600 ft). Boyd and Murphy (2008, p. 19) indicate that 
areas occupied by the subspecies feature exposed soil and rock 
substrates with limited or no canopy cover or shading.
    Other than observations by surveyors, little information is 
available regarding most aspects of the subspecies' biology and the key 
determinants for the interactions among the Mount Charleston blue 
butterfly's life history and environmental conditions. Observations 
indicate that above- or below-average precipitation, coupled with 
above- or below-average temperatures, influence the phenology of this 
subspecies (Weiss et al. 1997, pp. 2-3 and 32; Boyd and Austin 1999, p. 
8) and are likely responsible for the fluctuation in population numbers 
from year to year (Weiss et al. 1997, pp. 2-3 and 31-32).
    Like most butterfly species, the Mount Charleston blue butterfly is 
dependent on specific plant species for the adult butterfly flight 
period (nectar plants), when breeding and egg-laying occurs, and for 
larval development (described under Physical and Biological Features, 
below (Weiss et al. 1994, p. 3; Weiss et al. 1997, p. 10; Boyd 2005, p. 
1; DataSmiths 2007, p. 21; Boyd and Murphy 2008, p. 9; Andrew et al. 
2013, pp. 4-12; Thompson et al. 2014, pp. 97-158)). The typical flight 
and breeding period for the butterfly is early July to mid-August with 
a peak in late July, although the subspecies has been observed as early 
as mid-June and as late as mid-September (Austin 1980, p. 22; Boyd and 
Austin 1999, p. 17; Forest Service 2006, p. 9, Thompson et al. 2014, 
pp. 105-116).
    Like all butterfly species, both the phenology (timing) and number 
of Mount Charleston blue butterfly individuals that emerge and fly to 
reproduce during a particular year appear to be reliant on the 
combination of many environmental factors that may constitute a 
successful (``favorable'') or unsuccessful (``poor'') year for the 
subspecies. Specific information regarding diapause of the Mount 
Charleston blue butterfly is lacking, and while geographic and 
subspecific variation in life histories can vary, we presume 
information on the diapause of the closely related Shasta blue 
butterfly is similar to that of the Mount Charleston blue butterfly. 
The Shasta blue butterfly is generally thought to diapause at the base 
of its larval host plant or in the surrounding substrate (Emmel and 
Shields 1978, p. 132) as an egg the first winter and as a larva near 
maturity the second winter (Ferris and Brown 1981, pp. 203-204; Scott 
1986, p. 411); however, Emmel and Shields (1978, p. 132) suggested that 
diapause was passed as partly grown larvae, because freshly hatched 
eggshells were found near newly laid eggs (indicating that the eggs do 
not overwinter). More recent observations of late summer hatched and 
overwintering unhatched eggs of the Mount Charleston blue butterfly 
eggs laid in the Spring Mountains may indicate that it has an 
environmentally cued and mixed diapause life cycle; however, further 
observations supporting egg viability are needed to confirm this 
(Thompson et al. 2014, p. 131).
    Prolonged or multiple years of diapause has been documented for 
several butterfly families, including Lycaenidae (Pratt and Emmel 2010, 
p. 108). For example, the pupae of the variable checkerspot butterfly 
(Euphydryas chalcedona, which is in the Nymphalid family) are known to 
persist in diapause up to 5 to 7 years (Scott 1986, p. 28). The number 
of years the Mount Charleston blue butterfly can remain in diapause is 
unknown. Boyd and Murphy (2008, p. 21) suggest the Mount Charleston 
blue butterfly may be able to delay maturation during drought or the 
shortened growing seasons that follow winters with heavy snowfall and 
late snowmelt by remaining as eggs. Experts have hypothesized and 
demonstrated that, in some species of Lepidoptera, a prolonged diapause 
period may be possible in response to unfavorable environmental 
conditions (Scott 1986, pp. 26-30; Murphy 2006, p. 1; DataSmiths 2007, 
p. 6; Boyd and Murphy 2008, p. 22), and this has been hypothesized for 
the Mount Charleston blue butterfly as well (Thompson et al. 2013a, 
presentation). Little has been confirmed regarding the length of time 
or life stage in which the Mount Charleston blue butterfly diapauses.
    Most butterfly populations exist as regional metapopulations 
(Murphy et al. 1990, p. 44). Boyd and Austin (1999, pp. 17 and 53) 
suggest this is true of the Mount Charleston blue butterfly. Small 
habitat patches tend to support smaller butterfly populations that are 
frequently extirpated by events that are part of normal variation 
(Murphy et al. 1990, p. 44). According to Boyd and Austin (1999, p. 
17), smaller colonies of the Mount Charleston blue butterfly may be 
ephemeral in the long term, with the larger colonies of the subspecies 
more likely than smaller populations to persist in ``poor'' years, when 
environmental conditions do not support the emergence, flight, and 
reproduction of individuals. The ability of the Mount Charleston blue 
butterfly to move between habitat patches has not been studied; 
however, field observations indicate the subspecies has low vagility 
(capacity or tendency of a species to move about or disperse in a given 
environment), on the order of 10 to 100 m (33 to 330 ft) (Weiss et al. 
1995, p. 9), and nearly sedentary behavior (DataSmiths 2007, p. 21; 
Boyd and Murphy 2008, pp. 3 and 9). Furthermore, movement of lycaenid 
butterflies, in general, is limited and on the order of hundreds of 
meters (Cushman and Murphy 1993, p. 40); however, there are small 
portions of a population that can make substantially long movements 
(Arnold 1983, pp. 47-48).
    Based on this information, the likelihood of dispersal more than 
hundreds of meters is low for the Mount Charleston blue butterfly, but 
it may occur. Thompson et al. (2013a, presentation) have hypothesized 
that the Mount Charleston blue butterfly could diapause for multiple 
years (more than 2) as larvae and pupae until vegetation conditions are 
favorable to support emergence, flight, and reproduction (Thompson et 
al. 2013a, presentation). This could account for periodic high numbers 
of butterflies observed at more sites in years with favorable 
conditions, as was documented by Weiss et al. in 1995, than years with 
unfavorable conditions. Additional future research regarding diapause 
patterns of the Mount Charleston blue butterfly is needed to further 
our understanding of this subspecies.

[[Page 41229]]

Critical Habitat

Background

    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 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) which are 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 and commercial 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 those 
specific elements of the 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. We designate critical habitat in areas outside the 
geographical area presently occupied by a species only when a 
designation limited to its present 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, will 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 will continue to contribute to recovery of this 
species. 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, or other species conservation planning efforts if 
new information available at the time of these planning efforts calls 
for a different outcome.

Prudency Determination

    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

[[Page 41230]]

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
    (2) such designation of critical habitat would not be beneficial to 
the species.
    Based on information received after publication of the proposed 
listing rule, we determined that the threat of take attributed to 
collection under Factor B has been reduced with the implementation of a 
Forest Service closure order to limit collection in the Spring 
Mountains. We also determined from peer and public review of the 
proposed listing rule that identification and mapping of critical 
habitat is not expected to exacerbate the threat of collection, because 
location information is available on the internet and the closure order 
reduces the threat of collection. In the absence of finding that the 
designation of critical habitat would increase threats to a species, if 
there are any benefits to 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 Mount 
Charleston blue butterfly.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the Mount 
Charleston blue butterfly 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.
When critical habitat is not determinable, the Act allows the Service 
an additional year to publish a critical habitat designation (16 U.S.C. 
1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
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 Mount Charleston blue butterfly.

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 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 historic geographical and ecological 
distributions of a species.
    We derive the specific physical or biological features essential to 
the Mount Charleston blue butterfly from studies of this species' 
habitat, ecology, and life history as described below. Additional 
information can be found in the final listing rule published in the 
Federal Register of September 19, 2013 (78 FR 57750). We have 
determined that the following physical or biological features are 
essential to the Mount Charleston blue butterfly:
Space for Individual and Population Growth and for Normal Behavior
    The Mount Charleston blue butterfly is known to occur only in the 
high elevations of the Spring Mountains, located approximately 40 km 
(25 mi) west of Las Vegas in Clark County, Nevada (Austin 1980, p. 20; 
Scott 1986, p. 410). Historically, the Mount Charleston blue butterfly 
was detected at elevations as low as 1,830 m (6,000 ft) in the Spring 
Mountains (Austin 1980, p. 22; Austin 1981, p. 66; Weiss et al. 1995, 
p. 5). Currently, the Mount Charleston blue butterfly is presumed or 
known to occupy habitat occurring between 2,500 m (8,200 ft) elevation 
and 3,500 m elevation (11,500 ft) (Austin 1980, p. 22; Weiss et al. 
1997, p. 10; Boyd and Austin 1999, p. 17; Pinyon 2011, p. 17; Andrew et 
al. 2013, pp. 20-61; Thompson et al. 2014, pp. 97-158). Dominant plant 
communities between these elevation bounds are variable (Forest Service 
1998, pp. 11-12), but locations that support the Mount Charleston blue 
butterfly are characterized by open areas bordered, near, or surrounded 
by forests composed of ponderosa pine (Pinus ponderosa), Great Basin 
bristlecone pine (Pinus longaeva), and white fir (Abies concolor) 
(Andrew et al. 2013, p. 5). These open forest conditions are often 
created by disturbances such as fire and avalanches (Weiss et al. 1995, 
p. 5; DataSmiths 2007, p. 21; Boyd and Murphy 2008, pp. 23-24; Thompson 
et al. 2014, pp. 97-158), but the open forest conditions may also exist 
as a function of an area's ecological system (Provencher 2008, p. 134).
    The Mount Charleston blue butterfly is described to occur on 
relatively flat ridgetops, gently sloping hills, or meadows, where tree 
cover is absent to less than 50 percent (Austin 1980, p. 22; Weiss et 
al. 1995, pp. 5-6; Weiss et al. 1997, pp. 10, 32-34; Boyd and Austin 
1999, p. 17; Boyd and Murphy 2008, p. 19; Andrews et al. 2013, p. 3; 
Thompson et al. 2014, p. 138). These locations and characteristics are 
likely correlated with the ecological requirements of the Mount 
Charleston blue butterfly's larval host plants (Weiss et al. 1997, p. 
22) and adult nectar plants (described below).
    Therefore, based on the information above, we identify flat or 
gently sloping areas between 2,500 m (8,200 ft) and 3,500 m (11,500 ft) 
elevation in the Spring Mountains as a physical or biological feature 
essential to the Mount Charleston blue butterfly for space for 
individual and population growth and for normal behavior.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    The best scientific information available regarding food, water, 
air, light, minerals, and other nutritional or physiological 
requirements of the Mount Charleston blue butterfly's life stages (egg, 
larva, pupa, adult) result from observations by surveyors, and research 
to determine the requirements and environmental conditions essential to 
the Mount Charleston blue butterfly.

[[Page 41231]]

In general, resources that are thought to fulfill these requirements 
occur in open areas with exposed soil and rock substrates with short, 
widely spaced forbs and grasses. These areas allow light to reach the 
ground in order for adult nectar and larval host plants to grow.
    Adult Mount Charleston blue butterflies have been documented 
feeding on nectar from a number of different flowering plants, but most 
frequently these species are Erigeron clokeyi (Clokey's fleabane), 
Eriogonum umbellatum var. versicolor (sulphur-flower buckwheat), 
Hymenoxys cooperi (Cooper rubberweed), and Hymenoxys lemmonii (Lemmon 
bitterweed) (Weiss et al. 1997, p. 11; Boyd and Murphy 2008, pp. 13, 
16; Pinyon 2011, p. 17; Andrew 2013, pp. 3-4; Thompson et al. 2014, pp. 
117-118). Densities of nectar plants generally occur at more than 2 per 
square meter (m\2\) (20 per square foot (ft\2\)) for smaller plants 
such as E. clokeyi and more than 0.1 per m\2\ (1 per ft\2\) for larger 
and taller plants such as Hymenoxys sp. and E. umbellatum (Thompson et 
al. 2014, p. 138). Nectar plants typically occur within 10 m (33 ft) of 
larval host plants and in combination provide nectar during the adult 
flight period between mid-July and early August (Thompson et al. 2014, 
p. 138). Other species which adult Mount Charleston blue butterflies 
have been documented using as nectar plants include Antennaria rosea 
(rosy pussy toes), Cryptantha species (cryptantha; the species C. 
angustifolia originally reported is likely a misidentification because 
this species occurs in much lower elevation desert habitat (Niles and 
Leary 2007, p. 26)), Ericameria nauseosa (rubber rabbitbrush), Erigeron 
flagellaris (trailing daisy), Guiterrezia sarothrae (broom snake weed), 
Monardella odoratissima (horsemint), Petradoria pumila var. pumila 
(rock-goldenrod), and Potentilla concinna var. concinna (Alpine 
cinquefoil) (Boyd and Murphy 2008, pp. 13, 16; Thompson et al. 2014, 
pp. 117-118).
    Based on surveyors' observations, several species appear to be 
important food plants for the larval life stage of the Mount Charleston 
blue butterfly. Therefore, we consider those plants on which surveyors 
have documented Mount Charleston blue butterfly eggs to be larval host 
or food plants (hereafter, referred to as larval host plants). Based on 
this, Astragalus calycosus var. calycosus, Oxytropis oreophila var. 
oreophila, and Astragalus platytropis are all considered larval host 
plants for the Mount Charleston blue butterfly (Weiss et al. 1997, p. 
10; Austin and Leary 2008, p. 86; Andrew et al. 2013, pp. 7-8; Thompson 
et al. pp. 121-131) (See Sites for Breeding, Reproduction, or Rearing 
(or Development) of Offspring below for more details). Note that in the 
final listing rule for the Mount Charleston blue butterfly (78 FR 
57750; September 19, 2013) we reported Astragalus lentiginosus var. 
kernensis (Kern plateau milkvetch) as a larval host plant (Andrew et 
al. 2013, p. 3); however, this host plant was subsequently determined 
to be Oxytropis oreophila var. oreophila (mountain oxytrope) (Thompson 
et al. 2014, pp. 97-158), and has been described as such in this final 
rule. Future surveys and research may document the importance of other 
plant species as food resources for Mount Charleston blue butterfly 
larvae. Densities of host plants are generally greater than two per 
m\2\ (20 per ft\2\) (Weiss 1997, p. 34; Andrew et al. 2013, p. 9; 
Thompson et al. 2014, p. 138).
    In addition, the Mount Charleston blue butterfly requires open 
canopy cover (open forest). Specifically, the Mount Charleston blue 
butterfly requires areas where tree cover is absent or low. This may be 
due to ecological requirements of the larval host plants or adult 
nectar plants or due to the flight behavior of the Mount Charleston 
blue butterfly. As with most butterflies, the Mount Charleston blue 
butterfly typically flies during sunny conditions, which are 
particularly important for this subspecies given the cooler air 
temperatures at high elevations in the Spring Mountains of Nevada 
(Weiss et al. 1997, p. 31).
    The areas where the Mount Charleston blue butterfly occurs often 
have shallow exposed soil and rock substrates with short, widely spaced 
forbs and grasses (Weiss et al. 1997, pp. 10, 27, and 31; Boyd 2005, p. 
1; Service 2006a, p. 1; Kingsley 2007, pp. 9-10; Boyd and Murphy 2008, 
p. 19; Pinyon 2011, pp. 17, 21; Andrew et al. 2013, pp. 9-13; Thompson 
et al. 2014, pp. 137-143). These vegetative characteristics may be 
important as they would not impede the Mount Charleston blue 
butterfly's low flight behavior (Weiss et al. 1997, p. 31) (reported to 
be 15 centimeters (cm) (38 in) or less (Thompson et al. 2014, p. 118)). 
Some taller grass or forb plants may be present when their density is 
less than five per m\2\ (Thompson et al. 2014, pp. 138-139).
    Therefore, based on the information above, we identify open habitat 
that permits light to reach the ground, nectar plants for adults and 
host plants for larvae, and exposed soil and rock substrates with 
short, widely spaced forbs and grasses to be physical or biological 
features for this subspecies that provide food, water, air, light, 
minerals, or other nutritional or physiological requirements.
Cover or Shelter
    The study and delineation of habitat for many butterflies has often 
been associated with larval host plants, breeding resources, and nectar 
sources for adults (Dennis 2004, p. 37). Similar to other butterfly 
species (Dennis 2004, p. 37), there is little to no information 
available about the structural elements required by the Mount 
Charleston blue butterfly for cover or shelter. However, we infer that, 
because of their low vagility, cover or shelter used by any life stage 
of the Mount Charleston blue butterfly will be in close association or 
proximity to larval or adult food resources in its habitat.
    For larvae, diapause is generally thought to occur at the base of 
the larval host plant or in the surrounding substrate (Emmel and 
Shields 1978, p. 132). Mount Charleston blue butterfly larvae feed 
after diapause. Like other butterflies, after larvae become large 
enough, they pupate (Scott 1986, p. 24). Pupation most likely occurs in 
the ground litter near a main stem of the larval host plant (Emmel and 
Shields 1978, p. 132). After pupation, adults feed and mate in the same 
areas where larvae diapause and pupation occurs. In addition, no 
specific areas for overnight roosting by adult Mount Charleston blue 
butterflies have been reported. However, adults have been observed 
using areas in moderately dense forest stands immediately adjacent to 
low-cover areas with larval host and nectar plants (Thompson et al. 
2014, p. 120).
    Therefore, based on the information above, we identify areas with 
larval host plants and adult nectar plants, and areas immediately 
adjacent to these plants, to be a physical or biological feature for 
this subspecies that provides cover or shelter.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    The Mount Charleston blue butterfly has specific site requirements 
for its flight period when breeding and reproduction occur, and these 
requirements may be correlated to its limited vagility and short 
lifespan. The typical flight and breeding period for the Mount 
Charleston blue butterfly is early July to mid-August with a peak in 
late July, although the subspecies has been observed as early as mid-
June and as late as mid-September (Austin 1980, p. 22; Boyd and Austin 
1999, p. 17; Forest Service 2006, p. 9; Thompson et al. 2014, pp. 104-
116). Breeding

[[Page 41232]]

opportunities for individual Mount Charleston blue butterflies are 
presumably short in duration during its lifespan, which may range from 
2 to 12 days, as has been reported for other closely related species 
(Arnold 1983, Plebejinae in Table 44). Therefore, the Mount Charleston 
blue butterfly may generally be constrained to areas where adult nectar 
resources are in close proximity to plants on which to breed and lay 
eggs. Researchers have documented Mount Charleston blue butterfly 
breeding behavior in close spatial association with larval host and 
adult nectar plants (Thompson et al. 2014, pp. 121-125).
    The presence of Mount Charleston blue butterfly adult nectar 
plants, such as Erigeron clokeyi, appears to be strongly associated 
with its larval host plants (Andrew et al. 2013, p. 9). Female Mount 
Charleston blue butterflies have been observed ovipositing a single egg 
per host plant, which appears to weakly adhere to the host plant 
surface; this has been observed most typically within basal leaves 
(Thompson et al. 2014, p. 129). Ovipositing by butterflies on plants is 
not absolute evidence of larval feeding or survival (Austin and Leary 
2008, p. 1), but may provide a stronger inference in combination with 
close adult associations and repeated observations. Presuming the Mount 
Charleston blue butterfly's diapause behavior is similar to the closely 
related Shasta blue butterfly, the Mount Charleston blue butterfly 
diapauses as an egg or as a larva at the base of its egg and larval 
host plants or in the surrounding substrate (Emmel and Shields 1978, p. 
132; Ferris and Brown 1981, pp. 203-204; Scott 1986, p. 411).
    In 1987, researchers documented two occasions when Mount Charleston 
blue butterflies oviposited on Astragalus calycosus var. calycosus (= 
var. mancus) (Austin and Leary 2008, p. 86). Based on this 
documentation and subsequent observations of adult Mount Charleston 
blue butterflies, Astragalus calycosus var. calycosus was the only 
known larval host plant for the Mount Charleston blue butterfly (Austin 
and Leary 2008, p. 86). In 2011 and 2012, researchers from the 
University of Nevada Las Vegas observed female Mount Charleston blue 
butterflies landing on and ovipositing on Oxytropis oreophila var. 
oreophila (mountain oxytrope) and Astragalus platytropis (broadkeeled 
milkvetch), which presumably also function as larval host plants 
(Andrew et al. 2013, pp. 4-12; Thompson et al. 2014, pp. 122-134). 
Andrew et al. (2013, p. 5) also documented Mount Charleston blue 
butterfly eggs on all three plant species. Other subspecies of Shasta 
blue butterflies have been reported to use more than one plant during 
larval development, including Astragalus platytropis (Austin and Leary 
2008, pp. 85-86). Because the subspecies has been documented 
ovipositing on these three plant species and other subspecies of Shasta 
blue butterflies are known to use multiple larval host plants, we 
consider Astragalus calycosus var. calycosus, Oxytropis oreophila var. 
oreophila, and Astragalus platytropis to be the host plants used during 
Mount Charleston blue butterfly larval development.
    Therefore, based on the information above, we identify areas with 
larval host plants, especially Astragalus calycosus var. calycosus, 
Oxytropis oreophila var. oreophila, or Astragalus platytropis, and 
adult nectar plants, especially Erigeron clokeyi, Eriogonum umbellatum 
var. versicolor, Hymenoxys cooperi, and Hymenoxys lemmonii, during the 
flight period of the Mount Charleston blue butterfly to be a physical 
or biological feature for this subspecies that provides sites for 
breeding, reproduction, or rearing (or development) of offspring.
Habitats That Are Protected From Disturbance or are Representative of 
the Historical, Geographical, and Ecological Distributions of the 
Subspecies
    Habitat for the Mount Charleston blue butterfly that is protected 
from disturbance or representative of the historical, geographical, and 
ecological distributions of the subspecies occurs in locations with 
limited canopy cover that comprise the appropriate species of larval 
host and adult nectar plants. Although some of these open locations 
occur due to wind and other environmental stresses that inhibit tree 
and shrub growth, fire is one of the most prevalent disturbances across 
the landscape of the Mount Charleston blue butterfly. To better 
understand the fire frequency and severity at Mount Charleston blue 
butterfly locations, we characterized fire regimes at these locations 
using condition classes developed by Provencher (2008, Appendix II; 
Barrett et al. 2010, p. 15). Fire regime condition classes are 
classified by fire frequency, which is the average number of years 
between fires, and fire severity, which represents the percent 
replacement of dominant overstory vegetation (Barrett et al. 2010, p. 
15). Fire regimes can be broadly categorized for Mount Charleston blue 
butterfly locations based on elevation. Higher elevation locations, 
generally above 2,740 m (9,000 ft) elevation, occur in fire regime 
condition classes 4 and 5 (Provencher 2008, Appendix II). Lower 
elevation locations, generally below 2,740 m (9,000 ft), occur in fire 
regime condition classes 2 and 3 (Provencher 2008, Appendix II).
    In higher elevation locations where the Mount Charleston blue 
butterfly is known or presumed to occur (South Loop Trail, Mummy 
Springs, upper Bonanza Trail, and Griffith Peak), disturbance from fire 
is relatively infrequent, with variable severity (fire regime condition 
classes 4 and 5 in Provencher 2008, Appendix II), occurring every 35 to 
200 years at a high severity, or occurring more frequently than every 
200 years with a variable but generally high severity (Barrett et al. 
2010, p. 15). Other disturbances likely to occur at the high-elevation 
Mount Charleston blue butterfly locations are from wind and other 
weather phenomena (Provencher 2008, Appendix II). At these high-
elevation habitats, fire frequency and severity are relatively similar 
to historic regimes (Provencher 2008, Table 4, 5 and Appendix II), so 
vegetation succession should be within the normal range of variation. 
Vegetation succession at some high-elevation areas that currently lack 
trees may cause these areas to become more forested, but other areas 
that are scoured by wind or exposed to other severe environmental 
stresses may remain non-forested (for example, South Loop Trail; Andrew 
et al. 2013, pp. 20-27) (Provencher and Anderson 2011, pp. 1-116; NVWAP 
2012, p. 177). Thus, we expect higher elevation locations will be able 
to continue to provide open areas with the appropriate vegetation 
necessary to support individuals and populations of Mount Charleston 
blue butterflies.
    In contrast, at lower elevation locations where the Mount 
Charleston blue butterfly is known or presumed to occur (Las Vegas Ski 
and Snowboard Resort (LVSSR), Foxtail, Youth Camp, Gary Abbott, Lower 
LVSSR Parking, Lee Meadows, Bristlecone Trail, and lower Bonanza 
Trail), disturbance from fire is likely to occur less than every 35 
years with more than 75 percent being high-severity fires, or is likely 
to occur more than every 35 years at mixed-severity and low-severity 
(fire regime condition classes 2 and 3 in Provencher 2008, Appendix 
II). At these lower elevation habitats, fire frequency and severity 
appear to have departed from historic regimes (Provencher 2008, Table 
4, 5 and Appendix II). Lack of fire due to fire exclusion or reduction 
in natural fire cycles as has been demonstrated in the Spring Mountains 
(Entrix 2008, p. 113) and other proximate mountain ranges (Amell 2006, 
pp. 2-3), has likely resulted in long-term successional changes, 
including increased forest area

[[Page 41233]]

and forest structure (higher canopy cover, more young trees, and more 
trees intolerant of fire) (Nachlinger and Reese 1996, p. 37; Amell 
2006, pp. 6-9; Boyd and Murphy 2008, pp. 22-28; Denton et al. 2008, p. 
21; Abella et al. 2012, pp. 128, 130) at these lower elevation 
locations. Without fire in some of these locations, herbs and small 
forbs may be nearly absent as the vegetation moves towards later 
successional classes with increasing tree overstory cover (Provencher 
2008, Appendix II). Therefore, habitat at the lower elevation Mount 
Charleston blue butterfly locations is more dissimilar from what would 
be expected based on historic fire regimes (Provencher 2008, Table 4, 5 
and Appendix II). Thus, in order for Mount Charleston blue butterfly 
individuals and populations to be maintained at lower elevation 
locations, active habitat management will likely be necessary.
    In July 2013, the Carpenter 1 Fire burned into habitat of the Mount 
Charleston blue butterfly along the ridgelines between Griffith Peak 
and South Loop spanning a distance of approximately 3 miles (5 km). 
Within this area there are low-, moderate-, or high-quality patches of 
Mount Charleston blue butterfly habitat intermixed with non-habitat. 
The majority of Mount Charleston blue butterfly moderate- or high-
quality habitat through this area was classified as having a very low 
or low soil-burn severity (Kallstrom 2013, p. 4). The characteristics 
of Mount Charleston blue butterfly habitat in this area of widely 
spaced grass and forbs, exposed soil and rocks, and low tree canopy 
cover result in lower fuel loading and continuity, which likely 
contributed to its low burn severities. While areas of moderate- and 
high-quality Mount Charleston blue butterfly habitat may have had a 
very low or low soil-burn severity rating, it is unknown to what extent 
butterflies in egg, larval, pupal, or adult life stages were exposed to 
lethal levels of smoke, gases, and convection or radiant heat from the 
fire. Until surveys are performed on the ground, damage to larval host 
and adult nectar plants in unburned, very low or low soil-burn severity 
areas cannot be determined. Butterflies in an adult life stage may have 
been able to escape the fire.
    Areas with the highest observed concentrations of Mount Charleston 
blue butterflies in moderate- and high-quality habitat were outside the 
fire perimeter in an area slightly lower in elevation, below a 
topographic crest, and may have been unaffected by heat and smoke from 
the fire. Butterflies in these areas may have received topographic 
protection with rising smoke and convective heat moving above them; 
however, it is unknown if they were exposed to lethal radiant heat. 
Life stages of the butterfly low to the ground, in the soil, or among 
the rocks also may have been afforded some protection from the smoke 
and heat.
    Areas of lower quality habitat appear to have had higher tree-
canopy cover and generally experienced low to moderate soil-burn 
severity. Only a small percentage of documented Mount Charleston blue 
butterfly locations occurred in these areas. Some effects of the fire 
may improve habitat for the Mount Charleston blue butterfly in the long 
term by opening the tree canopy, providing additional areas for larval 
host and nectar plants to grow, and releasing stored nutrients; 
however, improvements will depend upon successional conditions, such as 
soil types and moisture, and seed sources.
    Recreational activities, trail-associated erosion, and the 
introduction of weeds or invasive grasses are likely the greatest 
threats that could occur within areas of Mount Charleston blue 
butterfly habitat burned by the Carpenter 1 Fire. Other potential 
threats to the Mount Charleston blue butterfly habitat associated with 
the fire may include trampling or grazing of new larval host or nectar 
plants by wild horses (Equus ferus) and elk (Cervus elaphus). However, 
use of this Mount Charleston blue butterfly habitat in these watersheds 
by wild horses and elk is currently very low.
    Effects on the Mount Charleston blue butterfly or its habitat from 
climate change will vary across its range because of topographic 
heterogeneity (Luoto and Heikkinen 2008, p. 487). The Intergovernmental 
Panel on Climate Change (IPCC) has high confidence in predictions that 
extreme weather events, warmer temperatures, and regional drought are 
very likely to increase in the northern hemisphere as a result of 
climate change (IPCC 2007, pp. 15-16). Climate models show the 
southwestern United States has transitioned into a more arid climate of 
drought that is predicted to continue into the next century (Seager et 
al. 2007, p. 1181). In the past 60 years, the frequency of storms with 
extreme precipitation has increased in Nevada by 29 percent (Madsen and 
Figdor 2007, p. 37). Changes in local southern Nevada climatic patterns 
cannot be definitively tied to global climate change; however, they are 
consistent with IPCC-predicted patterns of extreme precipitation, 
warmer than average temperatures, and drought (Redmond 2007, p. 1). 
Therefore, we believe that climate change will impact the Mount 
Charleston blue butterfly and its high-elevation habitat through 
predicted increases in extreme precipitation and drought. Alternating 
extreme precipitation and drought may exacerbate threats already facing 
the subspecies as a result of its small population size and threats to 
its habitat.
    Based on the information above, we identify habitat where natural 
disturbance, such as fire which creates and maintains openings in the 
canopy (fire regime condition classes 2, 3, 4, and 5), to be a physical 
or biological feature for this subspecies that provides habitats that 
are representative of the historical, geographical, and ecological 
distributions of the subspecies.

Primary Constituent Elements for Mount Charleston Blue Butterfly

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of Mount Charleston blue butterfly in areas occupied at 
the time of listing, focusing on the features' primary constituent 
elements. We consider primary constituent elements to be those specific 
elements of the physical or biological features that provide for a 
species' life-history processes and are essential to the conservation 
of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to Mount Charleston blue butterfly are:
    (1) Areas of dynamic habitat between 2,500 m (8,200 ft) and 3,500 m 
(11,500 ft) elevation with openings or where disturbance provides 
openings in the canopy that have no more than 50 percent tree cover 
(allowing sunlight to reach the ground), widely spaced low (< 15 cm 
(0.5 ft)) forbs and grasses, and exposed soil and rock substrates. When 
taller grass and forb plants greater than or equal to 15 cm (0.5 ft) in 
height are present, the density is less than five per m\2\ (50 per 
ft\2\).
    (2) The presence of one or more species of host plants required by 
larvae of the Mount Charleston blue butterfly for feeding and growth. 
Known larval host plants are Astragalus calycosus var. calycosus, 
Oxytropis oreophila var. oreophila, and Astragalus platytropis. 
Densities of host plants must be greater than two per m\2\ (20 per 
ft\2\).
    (3) The presence of one or more species of nectar plants required 
by adult Mount Charleston blue butterflies for reproduction, feeding, 
and growth.

[[Page 41234]]

Common nectar plants include Erigeron clokeyi, Hymenoxys lemmonii, 
Hymenoxys cooperi and Eriogonum umbellatum var. versicolor. Densities 
of nectar plants must occur at more than two per m\2\ (20 per ft\2\) 
for smaller plants, such as E. clokeyi, and above 0.1 per m\2\ (1 per 
ft\2\) for larger and taller plants such as Hymenoxys sp. and E. 
umbellatum. Nectar plants typically occur within 10 m (33 ft) of larval 
host plants and in combination provide nectar during the adult flight 
period between mid-July and early August. Additional nectar sources 
that could be present in combination with the common nectar plants 
include Antennaria rosea, Cryptantha sp., Ericameria nauseosa ssp., 
Erigeron flagellaris (Trailing daisy), Guiterrezia sarothrae, 
Monardella odoratissima, Petradoria pumila var. pumila, and Potentilla 
concinna var. concinna.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the subspecies at the 
time of listing contain features which are essential to the 
conservation of the subspecies and which may require special management 
considerations or protection. Special management considerations or 
protection may be necessary to eliminate or reduce the magnitude of 
threats that affect the subspecies. Threats to the Mount Charleston 
blue butterfly and its features identified in the final listing rule 
for the Mount Charleston blue butterfly (78 FR 57750) include: (1) loss 
and degradation of habitat due to changes in natural fire regimes and 
succession; (2) implementation of recreational development projects and 
fuels reduction projects; (3) increases of nonnative plants; (4) 
collection; (5) small population size and few occurrences; and (6) 
exacerbation of other threats from the impacts of climate change, which 
is anticipated to increase drought and extreme precipitation events. In 
addition to these threats, (7) wild horses present an additional threat 
by causing the loss and degradation of habitat resulting from trampling 
of host and nectar plants as well as the direct mortality of Mount 
Charleston blue butterfly where it is present (Boyd and Murphy 2008, 
pp. 7 and 27; Andrew et al. 2013, pp. 37-66; Thompson et al. 2014, pp. 
150-152).
    Threats to the Mount Charleston blue butterfly and its habitat and 
recommendations for ameliorating them have been described for each 
location and the subspecies in general (Boyd and Murphy 2008, pp. 1-41; 
Andrew et al. 2013 pp. 1-93; Thompson et al. 2014, pp. 97-158, 267-
288). Management activities that could ameliorate these threats include 
(but are not limited to): (1) Reestablishment and maintenance of 
habitat and landscape connectivity within and between populations; (2) 
habitat restoration and control of invasive nonnative species; (3) 
monitoring of ongoing habitat loss and nonnative plant invasion; (4) 
management of recreational activities to protect and prevent 
disturbance of Mount Charleston blue butterflies to reduce loss or 
deterioration of habitat; (5) maintenance of the Forest Service closure 
order prohibiting collection of the Mount Charleston blue butterfly and 
other blue butterfly species without a permit, in order to minimize the 
detrimental effects of collecting rare species; (6) removal or 
exclusion of wild horses in Mount Charleston blue butterfly habitat; 
and (7) providing educational and outreach opportunities to inform the 
public regarding potential adverse impacts to the species or sensitive 
habitat from disturbance caused by recreational activities in the 
summer or winter. These management activities will protect the physical 
and biological features by avoiding or minimizing activities that 
negatively affect the Mount Charleston blue butterfly and its habitat 
while promoting activities that are beneficial to them. Additionally, 
management of critical habitat lands will help maintain or enhance the 
necessary environmental components, foster recovery, and sustain 
populations currently in decline.
    All of the areas proposed to be designated as critical habitat 
occur within the Spring Mountains National Recreation Area, and are 
covered by the 1998 Spring Mountains National Recreation Area (SMNRA) 
Conservation Agreement. To date, the Conservation Agreement has not 
always been effective in protecting existing habitat for the Mount 
Charleston blue butterfly or yielding significant conservation benefits 
for the species. The Forest Service is currently in the process of 
revising the SMNRA Conservation Agreement, and the Service is a 
cooperator in this process. However, since the Conservation Agreement 
is currently under revision, and completion has not occurred prior to 
publication of this proposed rule, it is unclear what level of 
protection or conservation benefit the final SNMRA Conservation 
Agreement will provide for the Mount Charleston blue butterfly.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. We review 
available information pertaining to the habitat requirements of the 
species. In accordance with the Act and its implementing regulation at 
50 CFR 424.12(e), we consider whether designating additional areas--
outside of the geographical area currently occupied--are necessary to 
ensure the conservation of the species. We are proposing to designate 
critical habitat in areas within the geographical area occupied by the 
subspecies at the time of listing in October 2013 because such areas 
contain the physical or biological features that are essential to the 
conservation of the subspecies. We are not proposing to designate areas 
outside the geographical area occupied by the subspecies at the time of 
listing because they would provide limited benefit and are not needed 
to conserve the species.
    When determining the possible distribution of areas that meet the 
definition of critical habitat for the Mount Charleston blue butterfly, 
we considered all known suitable habitat patches remaining within the 
subspecies' historical range from Willow Creek, south to Griffith Peak 
within the SMNRA. For the Mount Charleston blue butterfly, we included 
locations of known populations and suitable habitat immediately 
adjacent to, or areas between, known populations that provide 
connectivity between these locations.
    This section provides the details of the process we used to 
delineate the proposed critical habitat for the Mount Charleston blue 
butterfly. The areas being proposed for critical habitat in this 
proposed rule are areas where the Mount Charleston blue butterfly occur 
and that contain the physical and biological features essential to the 
conservation of the species. These areas have been identified through 
incidental observations and systematic surveys or studies occurring 
over a period of several years. This information comes from multiple 
sources, such as reports, journal articles, and Forest Service project 
information. Based on this information, we are proposing to designate 
critical habitat in specific areas within the geographical area 
currently occupied by the Mount Charleston blue butterfly that contain 
the physical and biological features essential to the conservation of 
the species.

[[Page 41235]]

    We delineated the proposed critical habitat boundaries using the 
following steps:
    (1) We compiled and mapped Mount Charleston blue butterfly 
observation locations (points) and polygons of habitat that included 
larval host and nectar plants, or only larval host plants delineated in 
previous studies or surveys from Austin (1980), Weiss et al. (1997), 
Service (2006b), DataSmiths (2007), Newfields 2008, SWCA (2008), Carsey 
et al. 2011, Holthuijzen et al. (2011), Pinyon (2011), Andrew et al. 
(2013), and Thompson et al. (2014). The location information from the 
data sources used provided enough information to identify specific 
geographic areas by corroborating narratively described locations and 
mapped locations. These surveys are the best available data on the 
current distribution, habitat, and features that provide the basis for 
identifying areas of critical habitat for the Mount Charleston blue 
butterfly.
    (2) Observed locations of Mount Charleston blue butterflies 
described above were used to create larger polygons of suitable habitat 
by buffering observed locations by 100 meters (330 feet). These 
polygons assumed that suitable habitat was present up to 100 m (330 ft) 
around an observed location, because it is estimated that individual 
Mount Charleston blue butterflies can utilize areas between 10 to 100 m 
(33 to 330 ft; Weiss et al. 1995, Table 1) from observed locations.
    (3) Polygons of suitable habitat were identified from previously 
delineated habitat described above and were considered suitable if the 
habitat polygon contained: (a) observed locations of Mount Charleston 
blue butterflies; (b) delineated habitat that was rated by the 
investigator (Pinyon 2011, pp. 1-39) as either ``moderate'' or ``good'' 
quality; and (c) contained both larval host and nectar plants, or only 
larval host plants. It was inferred that nectar plants would also be 
present in areas where only larval host plants were detected and 
butterflies were observed since both larval host and nectar plants must 
be in close proximity for Mount Charleston blue butterflies to be 
present (Boyd and Murphy 2008, pp. 1-31).
    (4) Connectivity corridors were included, as they provide important 
areas for dispersal of butterfly populations between or adjacent to 
areas of suitable habitat. We approximated connectivity corridors by 
buffering polygons of suitable habitat by 2,440 m (8,005 ft), to 
simulate dispersal ability of the Mount Charleston blue butterfly. 
Buffered areas were considered to be within connectivity corridors if 
they were between or adjacent to areas of suitable habitat, and 
contained larval host and nectar plants or only larval host plants, and 
included areas not within 100 m (330 ft) of observed butterfly 
locations. Areas that did not contain surveyed habitat or were rated as 
``poor'' quality or ``inadequate'' habitat by investigators were 
excluded. Quarter-quarter sections (see below for description of 
quarter-quarter section) that were bounded on all sides by other 
quarter-quarter sections meeting the above criteria were included to 
avoid creating ``doughnut holes'' within corridors. In contrast to 
distances moved within a single patch of habitat, which has been 
estimated to be between 10 to 100 m (33 to 330 ft), dispersal can be 
defined as movement between patches of habitat (Bowler and Benton 2005, 
p. 207). Studies suggest that mobility in closely related butterfly 
species is similar (Burke et al. 2011, p. 2284). Therefore, we 
approximated the dispersal distance of the Mount Charleston blue 
butterfly to be up to 2,440 m (8,005 ft), based on documented movement 
distances observed during a mark-and-recapture study of a subspecies 
(Mission blue butterfly [Plebejus icariodes missionensis]) (Arnold 
1983, p. 48), which is a subspecies of the closely related Boisduval's 
blue butterfly (Plebejus icarioides) (Gompert et al. 2008, Figure 2; 
Burke et al. 2011, Supplementary File S4).
    (5) Observed locations, suitable habitat, and connectivity 
corridors, as described above, are all considered to be within the 
present geographic range of the subspecies.
    (6) Critical habitat boundaries were delineated using a data layer 
of the Public Land Survey System (PLSS), which includes quarter-quarter 
sections (16 ha (40 ac)). Quarter-quarter sections are proposed as 
critical habitat if they contain observed locations, suitable habitat, 
or connectivity corridors. Quarter-quarter sections were used to 
delineate critical habitat boundaries because they provide a readily 
available systematic method to identify areas that encompass the 
physical and biological features essential to the conservation of the 
Mount Charleston blue butterfly and they provide boundaries that are 
easy to describe and interpret for the general public and land 
management agencies. Critical habitat boundaries were derived from the 
outer boundary of the polygons selected from the PLSS quarter-quarter 
sections in the previous steps.
    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 because such lands lack 
physical or biological features necessary for Mount Charleston blue 
butterfly. 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 physical or biological features in 
the adjacent critical habitat.
    We are proposing for designation of critical habitat lands that we 
have determined are occupied at the time of listing and contain the 
physical or biological features to support life-history processes that 
we have determined are essential to the conservation of Mount 
Charleston blue butterfly. Three units are proposed for designation 
based on the physical or biological features being present to support 
Mount Charleston blue butterfly life-history processes. All units 
contain all of the identified physical or biological features and 
support multiple life-history processes.
    The critical habitat designation is defined by the map, 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 the map is based available to the public on http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0105, on our Internet 
site http://www.fws.gov/nevada/nv_species/mcb_butterfly.html, and at 
the field office responsible for the designation (see FOR FURTHER 
INFORMATION CONTACT above).

Proposed Critical Habitat Designation

    We are proposing three units as critical habitat for Mount 
Charleston blue butterfly that total 5,561 ac (2,250 ha). The critical 
habitat areas we describe below constitute our current best assessment 
of areas that meet the definition of critical habitat for Mount 
Charleston blue butterfly. The three areas we propose as critical 
habitat are: (1) South Loop, (2) Lee Canyon, and (3)

[[Page 41236]]

North Loop. We are requesting additional information and comment on the 
potential removal of some specific areas in the Lee Canyon Unit within 
localities commonly referred to as Foxtail, Old Mill, McWilliams and 
Las Vegas Ski and Snowboard Resort lower parking lot that have 
extremely high levels of public visitation and associated recreational 
disturbance. These areas are specifically described in the Information 
Requested section above. All the proposed critical habitat units are 
occupied at the time of listing (are currently occupied). Table 1 shows 
the occupied units; the approximate area of each proposed critical 
habitat unit is also shown in Table 1.

   Table 1--Proposed Critical Habitat Units for Mount Charleston Blue
                                Butterfly
      [Area estimates reflect all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
                                 Land ownership by    Size of unit  in
     Critical habitat unit              type          acres  (Hectares)
------------------------------------------------------------------------
1. South Loop..................  Federal..........  2,308 (934)
                                 State............  0
                                 Local............  0
                                 Private..........  0
2. Lee Canyon..................  Federal..........  2,833 (1,146)
                                 State............  0
                                 Local............  4(2)
                                 Private..........  3(1)
3. North Loop..................  Federal..........  413 (167)
                                 State............  0
                                 Local............  0
                                 Private..........  0
                                ----------------------------------------
    Total......................  Federal..........  5,554 (2,247)
                                 State............  0
                                 Local............  4(2)
                                 Private..........  3(1)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions below of all units and reasons why 
they meet the definition of critical habitat for Mount Charleston blue 
butterfly.

Unit 1: South Loop

    Unit 1 consists of 2,308 ac (934 ha) and is located in Clark 
County, Nevada. This unit extends south and southeast from near the 
summit of Charleston Peak along high- elevation ridges to Griffith 
Peak. The unit likely represents the largest population of Mount 
Charleston blue butterflies and is the southernmost area identified as 
critical habitat for the subspecies.
    The unit is within the geographic area occupied by the Mount 
Charleston blue butterfly at the time of listing. It contains the 
physical or biological features essential to the conservation of the 
subspecies, including: elevations between 2,500 m (8,200 ft) and 3,500 
m (11,500 ft) elevation; no tree cover or no more than 50 percent tree 
cover; widely spaced, low (less than 15 cm (0.5 ft)) forbs and grasses, 
with exposed soil and rock substrates; the presence of one or more 
species of larval host plants; and the presence of one or more species 
of nectar plants.
    Habitat in the unit is threatened by the impacts associated with 
climate change, such as increased drought and extreme precipitation 
events. Therefore, the physical or biological features essential to the 
conservation of the species in this unit may require special management 
considerations or protection to minimize impacts resulting from this 
threat (see Special Management Considerations or Protection section 
above).
    A portion of this unit was burned in July 2013, as part of the 
Carpenter 1 Fire, which burned into habitat of the Mount Charleston 
blue butterfly along the ridgelines between Griffith Peak and South 
Loop, spanning a distance of approximately 3 mi (5 km). Within this 
area, there are low-, moderate-, or high-quality patches of Mount 
Charleston blue butterfly habitat intermixed with non-habitat. The 
majority of Mount Charleston blue butterfly habitat of moderate or high 
quality in this area was classified as having a very low burn-severity 
or low soil burn-severity (Kallstrom 2013, p. 4). Areas with the 
highest observed concentrations of Mount Charleston blue butterflies 
within moderate- and high-quality habitat were outside the fire 
perimeter. Areas of lower quality habitat appear to have had higher 
tree canopy cover and generally experienced low to moderate soil burn-
severity.
    Although the burn in this unit may have had short-term impacts to 
larval host or nectar plants, it is likely that the burn may have long-
term benefits to Mount Charleston blue butterfly habitat by reducing 
canopy cover, thereby providing additional areas for larval host and 
nectar plants to grow, and releasing nutrients (Brown and Smith 2000, 
p. 26) into the soil, improving overall plant health and vigor, 
depending upon successional conditions such as soil types and moisture, 
and seed sources (Kallstrom 2013, p. 4). Therefore, we have proposed 
critical habitat designation for areas that contained the physical or 
biological features essential to the conservation of the Mount 
Charleston blue butterfly prior to the Carpenter 1 Fire, but may have 
been burned by the fire, because we expect that these areas continue to 
contain the physical or biological features essential to conservation 
of the subspecies.
    This unit is completely within the boundaries of the U.S. 
Department of Agriculture, Humboldt-Toiyabe National Forest, Spring 
Mountains National Recreation Area. The entire unit is within the Mount 
Charleston Wilderness, and southwestern portions of the unit overlap 
with the Carpenter Canyon Research Natural Area. This unit is within 
the area addressed by the Spring Mountains National Recreation Area 
Conservation Agreement.

Unit 2: Lee Canyon

    Unit 2 consists of 2,833 ac (1,146 ha) of Federal land, 4 ac (2 ha) 
of local land, and 3 ac (1 ha) of private land, and is located in Clark 
County, Nevada. This

[[Page 41237]]

unit extends south and southeast from McFarland Peak and along the 
Bonanza Trail through Lee Canyon to slopes below the north side of the 
North Loop Trail and the west side of Mummy Mountain. This unit 
represents the northernmost area identified as critical habitat for the 
subspecies.
    The unit is within the geographic area occupied by the Mount 
Charleston blue butterfly at the time of listing. It contains the 
physical or biological features essential to the conservation of the 
subspecies including: elevations between 2,500 m (8,200 ft) and 3,500 m 
(11,500 ft); no tree cover or no more than 50 percent tree cover; 
widely spaced, low (< 15 cm (0.5 ft)) forbs and grasses, with exposed 
soil and rock substrates; the presence of one or more species of larval 
host plants; and the presence of one or more species of nectar plants.
    Habitat in the unit is threatened by: loss and degradation of 
habitat due to changes in natural fire regimes and succession; 
implementation of recreational development projects and fuels reduction 
projects; increases of nonnative plants; and the exacerbation of other 
threats from the impacts of climate change, which is anticipated to 
increase drought and extreme precipitation events. Therefore, the 
features essential to the conservation of the species in this unit 
require special management considerations or protection to minimize 
impacts resulting from these threats (see Special Management 
Considerations or Protection section above).
    This unit is completely within the boundaries of the U.S. 
Department of Agriculture, Humboldt-Toiyabe National Forest, Spring 
Mountains National Recreation Area with less than 1 percent owned by 
private landowners or Clark County. Approximately 33 percent of the 
west side of the unit is within the Mount Charleston Wilderness. This 
unit is within the area addressed by the Spring Mountains National 
Recreation Area Conservation Agreement.

Unit 3: North Loop

    Unit 3 consists of 413 ac (167 ha) and is located in Clark County, 
Nevada. This unit extends northeast from an area between Mummy Spring 
and Fletcher Peak along high-elevation ridges down to an area above the 
State Highway 158. The unit represents the easternmost area identified 
as critical habitat for the subspecies.
    The unit is within the geographic area occupied by the Mount 
Charleston blue butterfly at the time of listing. It contains the 
physical or biological features essential to the conservation of the 
subspecies including: elevations between 2,500 m (8,200 ft) and 3,500 m 
(11,500 ft); no tree cover or no more than 50 percent tree cover; 
widely spaced, low (less than 15 cm (0.5 ft)) forbs and grasses with 
exposed soil and rock substrates; the presence of one or more species 
of larval host plants; and the presence of one or more species of 
nectar plants.
    Habitat in the unit is threatened by the impacts associated with 
climate change, such as increased drought and extreme precipitation 
events. Therefore, the features essential to the conservation of the 
species in this unit require special management considerations or 
protection to minimize impacts resulting from this threat (see Special 
Management Considerations or Protection section above).
    This unit is completely within the boundaries of the U.S. 
Department of Agriculture, Humboldt-Toiyabe National Forest, Spring 
Mountains National Recreation Area. Approximately 92 percent of the 
unit is within the Mount Charleston Wilderness. This unit is within the 
area addressed by the Spring Mountains National Recreation Area 
Conservation Agreement.

Areas Surrounding Recreation Infrastructure

    We may remove locations identified below from the critical habitat 
designation based on information received through the notice and 
comment process on this proposed rule. These locations overlap slightly 
with Mount Charleston blue butterfly habitat previously mapped by 
DataSmiths 2007. These locations are at the fringe of previously mapped 
habitat and most of these areas may lack one or more of the physical or 
biological features or are heavily impacted by public recreation. We 
may remove a 25-meter (m) (82-foot (ft)) perimeter distance around 
established boundaries or developed infrastructure that is consistent 
with the conclusions of a study on the Karner blue butterfly (Lycaeides 
melissa samuelis), which indicated that habitat within short distances 
of recreational features may be insufficient to offset recreational 
impacts on butterfly behavior (Bennett et al. 2010, p. 27, Bennett et 
al. 2013, pp. 1794-1795). This distance also is consistent with 
observations that impacts associated with the campgrounds, day use 
areas, and roads tend to be concentrated within a 25-m (82-ft) buffer 
(Cole 1993, p. 111; Cole 2004, p. 55; Monz et al.2010, p. 556; Randy 
Swick, pers. obs.).
    Specifically, we may remove locations referred to as Dolomite 
Campground, Foxtail Girl Scout Camp, Foxtail Group Picnic Area, Foxtail 
Snow Play Area, Lee Canyon Guard Station, Lee Meadows (extirpated Mount 
Charleston blue butterfly location), McWilliams Campground, Old Mill 
Picnic Area and Youth Camp. These locations are within the established 
boundaries or developed infrastructure (for example, roads, parking 
areas, fire pits, etc.) for the above-listed campgrounds and day use 
areas that have extremely high levels of public visitation and 
associated recreational disturbance. High levels of recreational 
disturbance in these areas have either severely degraded available 
habitat including host and nectar plants, or the intense level of 
recreational activity severely limits or precludes the use of these 
areas by the Mount Charleston blue butterfly. Additionally, small 
``doughnut holes'' and slivers of land encircled by the buffered areas 
would be included within the areas that may be removed from the final 
designation, because these fragments would not meet the definition of 
critical habitat for this species. We do not intend to remove areas 
larger than 0.10 acres (0.04 hectares) occurring between the above 
areas from critical habitat designation, including the ridge between 
Foxtail Day Use Area and Lee Meadows, because of the potential for 
these areas to contain physical or biological features essential to the 
conservation of the species.
    We are specifically seeking public comment on whether the locations 
mentioned above contain the physical or biological features essential 
to the conservation of the species to aid us in our decision of whether 
to remove them from this critical habitat designation. A map of the 
specific locations for potential removal can be found on the Nevada 
Fish and Wildlife Office at: http://www.fws.gov/nevada/ and at http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0105.

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

[[Page 41238]]

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 et al., 245 F.3d 434, 442 (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 statutory 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 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 subspecies. 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 Mount Charleston blue 
butterfly. As discussed above, the role of critical habitat is to 
support life-history needs of the subspecies and provide for the 
conservation of the subspecies. Generally, the conservation roles of 
Mount Charleston blue butterfly critical habitat units are to support 
viable self-sustaining populations of the 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 Mount Charleston blue butterfly. These activities 
include, but are not limited, to actions that would cause the quality, 
quantity, functionality, accessibility, or fragmentation of habitat or 
features to change unfavorably for Mount Charleston blue butterfly. 
Such activities could include, but are not limited to: ground or soil 
disturbance, either mechanically or manually; clearing or grading; 
erosion control; silviculture; fuels management; fire suppression; 
development; snow management; recreation; wild horse or burro 
management; and herbicide or pesticide use. These activities could 
alter: invasion rates of invasive or nonnative species; habitat 
necessary for the growth and reproduction of these butterflies and 
their host or nectar plants; and movement of adults between habitat 
patches. Such alterations may directly or cumulatively cause adverse 
effects to Mount Charleston blue butterflies and their life cycles.

Exemptions

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

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and

[[Page 41239]]

applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``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 integrated natural resources management plan 
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 no Department of Defense lands with a completed INRMP 
within the proposed critical habitat designation.

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 she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she 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 her discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. In the case of 
the Mount Charleston blue butterfly, the benefits of critical habitat 
include public awareness of the presence of the species and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection for Mount Charleston blue butterfly due to 
protection from adverse modification or destruction of critical 
habitat. In practice, situations with a Federal nexus exist primarily 
on Federal lands or for projects undertaken or funded by Federal 
agencies.
    We have not proposed to exclude any areas from critical habitat. 
However, the final decision on whether to remove or exclude any areas 
will be based on the best scientific data available at the time of the 
final designation, including information obtained during the comment 
period and information about the economic impact of designation. 
Accordingly, we have prepared a draft economic analysis concerning the 
proposed critical habitat designation (DEA), which is available for 
review and comment (see ADDRESSES).

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.'' The ``without 
critical habitat'' scenario represents the baseline for the analysis, 
which includes the existing regulatory burden currently imposed on 
landowners, managers, or other resource users who could potentially be 
affected by the designation of critical habitat (e.g., under the 
Federal listing as well as other Federal, State, and local 
regulations). The baseline, therefore, represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs of 
listing the species without critical habitat. These are the costs used 
when evaluating the benefits of inclusion and exclusion of particular 
areas from the final designation of critical habitat should we choose 
to conduct an optional 4(b)(2) exclusion analysis.
    For this particular designation, we developed an Incremental 
Effects Memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the Mount Charleston blue butterfly (IEc 2014). We 
began by conducting a screening analysis of the proposed designation of 
critical habitat in order to focus our analysis on the key factors that 
are likely to result in incremental economic impacts. The purpose of 
the screening analysis is to filter out the geographic areas in which 
the critical habitat designation is unlikely to result in probable 
incremental economic impacts. In particular, the screening analysis 
considers baseline costs (i.e., absent critical habitat designation) 
and includes probable economic impacts where land and water use may be 
subject to conservation plans, land management plans, best management 
practices, or regulations that protect the habitat area as a result of 
the Federal listing status of the species. The screening analysis 
filters out particular areas of critical habitat that are already 
subject to such protections and are, therefore, unlikely to incur 
incremental economic impacts. Ultimately, the screening analysis allows 
us to focus

[[Page 41240]]

our analysis on evaluating the specific areas or sectors that may incur 
probable incremental economic impacts as a result of the designation. 
The screening analysis also assesses whether units are unoccupied by 
the species and may require additional management or conservation 
efforts as a result of the critical habitat designation for the species 
that may incur incremental economic impacts. This screening analysis 
combined with the information contained in our IEM are what we consider 
our draft economic analysis of the proposed critical habitat 
designation for the Mount Charleston blue butterfly and is summarized 
in the narrative below.
    Executive Orders 12866 and 13563 direct Federal agencies to assess 
the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable. We 
assess to the extent practicable, the probable impacts, if sufficient 
data are available, to both directly and indirectly impacted entities. 
As part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation. In our evaluation of the probable 
incremental economic impacts that may result from the proposed 
designation of critical habitat for the Mount Charleston blue 
butterfly, first we identified, in the IEM dated February 10, 2014, 
probable incremental economic impacts associated with the following 
categories of activities: (1) Federal lands management (Forest 
Service); (2) fire management; (3) forest management; (4) recreation; 
(5) conservation/restoration; and (6) development. We considered each 
industry or category individually. Additionally, we considered whether 
their activities have any Federal involvement. Critical habitat 
designation will not affect activities that do not have any Federal 
involvement; designation of critical habitat affects only activities 
conducted, funded, permitted, or authorized by Federal agencies. In 
areas where the Mount Charleston blue butterfly is present, Federal 
agencies already are required to consult with the Service under section 
7 of the Act on activities they fund, permit, or implement that may 
affect the species. If we finalize this proposed critical habitat 
designation, consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process. Therefore, disproportionate impacts to 
any geographic area or sector are not likely as a result of this 
critical habitat designation.
    In our IEM, we attempted to clarify the distinction between the 
effects that can result from the species being listed and those 
attributable to the critical habitat designation (i.e., the difference 
between the jeopardy and adverse modification standards) for the Mount 
Charleston blue butterfly. Because the designation of critical habitat 
for Mount Charleston blue butterfly is being proposed shortly after the 
listing, it has been our experience that it is more difficult to 
discern which conservation efforts are attributable to the species 
being listed and those that can result solely from the designation of 
critical habitat. However, the following specific circumstances in this 
case help to inform our evaluation: (1) The essential physical and 
biological features identified for critical habitat are the same 
features essential for the life requisites of the species and (2) any 
actions that would result in sufficient harm or harassment to 
constitute jeopardy to the Mount Charleston blue butterfly would also 
likely adversely affect the essential physical and biological features 
of critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
proposed designation of critical habitat.
    The proposed critical habitat designation for the Mount Charleston 
blue butterfly totals approximately 5,561 acres (2,250 hectares) in 
three units, all of which were occupied at the time of listing and 
contain the physical and biological features essential to the 
conservation of the species. In these areas any actions that may affect 
the species or its habitat would also affect designated critical 
habitat, and it is unlikely that any additional conservation efforts 
would be recommended to address the adverse modification standard over 
and above those recommended as necessary to avoid jeopardizing the 
continued existence of the Mount Charleston blue butterfly. Therefore, 
only administrative costs are expected in all of the proposed critical 
habitat designation. While this additional analysis will require time 
and resources by both the Federal action agency and the Service, it is 
believed that, in most circumstances, these costs would predominantly 
be administrative in nature and would not be significant.
    The Forest Service has administrative oversight of 99.9 percent of 
the proposed critical habitat area and, as the primary Federal action 
agency in section 7 consultations would incur incremental costs 
associated with the critical habitat designation. In some cases third 
parties may be involved in areas such as Unit 2 in Lee Canyon, 
particularly where the Las Vegas Ski and Snowboard Report special-use-
permit area overlaps. However, consultation is expected to occur even 
in the absence of critical habitat, and incremental costs would be 
limited to administrative costs resulting from the potential for 
adverse modification. It is unlikely that there will be any incremental 
costs associated with the 0.1 percent of non-Federal land, for which we 
do not foresee any Federal nexus and thus is outside of the context of 
section 7 of the Act.
    The probable incremental economic impacts of the Mount Charleston 
blue butterfly critical habitat designation are expected to be limited 
to additional administrative effort as well as minor costs of 
conservation efforts resulting from a small number of future section 7 
consultations. This is due to two factors: (1) all the proposed 
critical habitat units are considered to be occupied by the species, 
and incremental economic impacts of critical habitat designation, other 
than administrative costs, are unlikely; and (2) the majority of 
proposed critical habitat is in designated Wilderness Areas where 
actions are currently limited and few actions are anticipated that will 
result in section 7 consultation or associated project modifications. 
Section 7 consultations for critical habitat are estimated to range 
between $410 and $9,100 per consultation. No more than 12 consultations 
are anticipated to occur in a year. Based upon these estimates, the 
maximum estimated incremental cost is estimated to be no greater than 
$109,200 in a given year. Thus, the annual administrative burden is 
unlikely to reach $100 million. Therefore, future probable incremental 
economic impacts are not likely to exceed $100 million in any single 
year and disproportionate impacts to any geographic area or sector are 
not likely as a result of this critical habitat designation.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rule. We may 
revise the final rule or supporting documents to

[[Page 41241]]

incorporate or address information we receive during the public comment 
period. In particular, we may refine our designation based on 
information received, or exclude an area from critical habitat, if we 
determine that the benefits of excluding the area outweigh the benefits 
of including the area, provided the exclusion will not result in the 
extinction of this 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 prepared an analysis of the probable 
economic impacts of the proposed critical habitat designation and 
related factors. The proposed critical habitat areas include Federal 
land, lands owned by Clark County, and privately owned land. Some of 
these lands are used for recreation (for example, skiing, camping, and 
hiking) and silviculture.
    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 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 owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this proposal, we have 
determined that the lands within the proposed designation of critical 
habitat for the Mount Charleston blue butterfly are not owned or 
managed by the Department of Defense, and, therefore, 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 habitat conservation plans (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.
    HCPs, established under section 10(a)(1)(B) of the Act, provide for 
partnerships with non-Federal parties to conserve the ecosystems upon 
which listed and nonlisted species depend, ultimately contributing to 
their recovery. HCPs are planning documents required as part of an 
application for an incidental take permit. They describe the 
anticipated effects of the proposed taking; how those impacts will be 
minimized, or mitigated; and how the HCP is to be funded.
    We will consider exclusions from the proposed designation under 
section 4(b)(2) of the Act based on partnerships, management, or 
protection afforded by cooperative management efforts. Some areas 
within the proposed designation are included in the Clark County 
Multiple Species Habitat Conservation Plan (MSHCP), which includes the 
Mount Charleston blue butterfly as a covered species. The MSHCP, 
developed in 2000 by numerous cooperators, including representatives of 
Federal, State, and county agencies and other public and private 
organizations, is available at http://www.clarkcountynv.gov/depts/dcp/Pages/CurrentHCP.aspx. The MSHCP identifies those actions necessary to 
maintain the viability of natural habitats in the county for the 79 
species covered by the MSHCP and benefits many other species residing 
in those habitats. We request information on the benefits of this plan 
to the conservation of the Mount Charleston blue butterfly, and whether 
this species will be retained as a covered species in this plan into 
the future.

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 critical habitat designation is based on scientifically sound 
data and analyses. We have invited these peer reviewers to provide peer 
review during this public comment period.
    We will consider all comments and information received during this 
comment period on this proposed critical habitat rule during our 
preparation of a final critical habitat determination. Accordingly, the 
final decision may differ from this proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the address shown in ADDRESSES. 
We will schedule public hearings on this proposal, if any are 
requested, and announce the dates, times, and places of those hearings, 
as well as how to obtain reasonable accommodations, in the Federal 
Register and local newspapers at least 15 days before the hearing.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
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

[[Page 41242]]

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.
    Under the RFA, as amended, and following recent court decisions, 
Federal agencies are only required to evaluate the potential 
incremental impacts of rulemaking on those 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.
    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 considered and evaluated 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. In our economic analysis, we found that the proposed 
critical habitat designation for the Mount Charleston blue butterfly 
will not significantly affect energy supplies, distribution, or use, as 
the degree of overlap between proposed critical habitat and energy 
supplies is insignificant, and normal operations of these resources 
within current guidelines are not anticipated to adversely modify 
critical habitat. Therefore, this action is not a significant energy 
action, and no Statement of Energy Effects is required.

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 rule will 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 do not believe that this rule will significantly or uniquely 
affect small governments because minimal proposed critical habitat is 
within the jurisdiction of small governments. Therefore, a Small 
Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), this

[[Page 41243]]

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 will review and revise this preliminary 
assessment as warranted, and prepare a Takings Implication Assessment.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
Federalism summary impact statement is not required. In keeping with 
Department of the Interior policy, we requested information from, and 
coordinated development of, this proposed critical habitat designation 
with appropriate State resource agencies in Nevada. The designation of 
critical habitat in areas currently occupied by the Mount Charleston 
blue butterfly would impose no additional restrictions to those 
currently in place and, therefore, would have little incremental impact 
on State and local governments and their activities. The designation 
may have some benefit to these governments because the areas that 
contain the physical or biological features essential to the 
conservation of the species are more clearly defined, and the elements 
of the features 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 local 
governments in long-range planning (rather than having them 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 a map, 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 were occupied by 
the Mount Charleston blue butterfly at the time of listing that contain 
the features essential to the conservation of the species and no tribal 
lands unoccupied by the Mount Charleston blue butterfly that are 
essential for the conservation of the species. Therefore, we are not 
proposing to designate critical habitat for the Mount Charleston blue 
butterfly 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 ADDRESSES. 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 
Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

[[Page 41244]]

Authors

    The primary authors of this package are the staff members of the 
Nevada Fish and Wildlife 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:

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; and 4201-4245; unless 
otherwise noted.

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2. In Sec.  17.11(h), revise the entry for ``Butterfly, Mount 
Charleston blue'' under Insects in the List of Endangered and 
Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                                                      Vertebrate
----------------------------------------------------------                         population where                      When      Critical     Special
                                                              Historic range         endangered or         Status       listed      habitat      rules
            Common name                Scientific name                                threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Insects
 
                                                                      * * * * * * *
Butterfly, Mount Charleston blue..  Plebejus shasta        U.S.A. (Clark         Entire..............  E                    820    17.95(i)         N/A
                                     charlestonensis.       County, NV; Spring
                                                            Mountains).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

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3. In Sec.  17.95, amend paragraph (i) by adding an entry for ``Mount 
Charleston Blue Butterfly (Plebejus shasta charlestonensis),'' in the 
same alphabetical order that the species appears in the table at Sec.  
17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *

Mount Charleston Blue Butterfly (Plebejus shasta charlestonensis)

    (1) Critical habitat units are depicted for Clark County, Nevada, 
on the map below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Mount Charleston blue butterfly consist of three components:
    (i) Areas of dynamic habitat between 2,500 meters (8,200 feet) and 
3,500 m (11,500 ft) elevation with openings or where disturbance 
provides openings in the canopy that have no more than 50 percent tree 
cover (allowing sunlight to reach the ground), widely spaced low (less 
than 15 centimeters (0.5 feet) in height) forbs and grasses, and 
exposed soil and rock substrates.
    (ii) The presence of one or more species of host plants required by 
larvae of the Mount Charleston blue butterfly for feeding and growth. 
Known larval host plants are Astragalus calycosus var. calycosus, 
Oxytropis oreophila var. oreophila, and Astragalus platytropis. 
Densities of host plants must be greater than 2 per square meter (20 
per square foot). When taller grass and forb plants (greater than or 
equal to 15 centimeters (0.5 feet) in height) are present, their 
density is less than 5 per square meter (50 per square foot).
    (iii) The presence of one or more species of nectar plants required 
by adult Mount Charleston blue butterflies for reproduction, feeding, 
and growth. Common nectar plants include Erigeron clokeyi, Hymenoxys 
lemmonii, Hymenoxys cooperi and Eriogonum umbellatum var. versicolor. 
Densities of nectar plants must occur at a minimum of two per square 
meter for smaller plants such as E. clokeyi and as low as 0.1 per 
square meter (1 per square foot) for larger and taller plants such as 
Hymenoxys sp. and E. umbellatum. Nectar plants may occur up to 10 
meters (33 feet) from larval host plants. Nectar plants typically occur 
within 10 meters (33 feet) of larval host plants and in combination 
provide nectar during the adult flight period between mid-July and 
early August. Additional nectar sources that could be present in 
combination with the common nectar plants include Antennaria rosea, 
Cryptantha sp., Ericameria nauseosa ssp., Erigeron flagellaris 
(Trailing daisy), Guiterrezia sarothrae, Monardella odoratissima, 
Petradoria pumila var. pumila, and Potentilla concinna var. concinna.
    (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 
[INSERT THE EFFECTIVE DATE OF THE FINAL RULE].
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of BLM (Bureau of Land Management) PLSS (Public Land 
Survey System) quarter-quarter sections. Critical habitat units were 
then mapped using UTM (Universal Transverse Mercator) Zone 11 North, 
NAD 1983 (North American Datum) coordinates. The map in this entry, as 
modified by any accompanying regulatory text, establishes the 
boundaries of the units of the critical habitat designation. The 
coordinates or plot points or both on which the map is based are 
available to the public at the Service's internet site, (http://www.fws.gov/nevada/nv_species/mcb_butterfly.html), (http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0105), and at the 
field office responsible for this rule. 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: Map follows:
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    Dated: July 1, 2014.
Michael J. Bean,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-16355 Filed 7-14-14; 8:45 am]
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