Proposed Rule2024-16982
Endangered and Threatened Wildlife and Plants; Endangered Status for the Eastern Regal Fritillary, and Threatened Status With Section 4(d) Rule for the Western Regal Fritillary
Primary source
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Published
August 6, 2024
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to list the eastern regal fritillary (Argynnis idalia idalia) as an endangered species and to list the western regal fritillary (A. i. occidentalis) as a threatened species under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12- month finding on a petition to list the regal fritillary, as these two subspecies make up the entire species. After a review of the best available scientific and commercial information, we find that listing both subspecies is warranted. Accordingly, we propose to list the eastern subspecies as endangered and the western subspecies as threatened with protective regulations issued under section 4(d) of the Act (a "4(d) rule"). We find that designation of critical habitat for both subspecies is not determinable at this time.
Full Text
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[Federal Register Volume 89, Number 151 (Tuesday, August 6, 2024)]
[Proposed Rules]
[Pages 63888-63909]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-16982]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2023-0182; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BF92
Endangered and Threatened Wildlife and Plants; Endangered Status
for the Eastern Regal Fritillary, and Threatened Status With Section
4(d) Rule for the Western Regal Fritillary
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the eastern regal fritillary (Argynnis idalia idalia) as an
endangered species and to list the western regal fritillary (A. i.
occidentalis) as a threatened species under the Endangered Species Act
of 1973, as amended (Act). This determination also serves as our 12-
month finding on a petition to list the regal fritillary, as these two
subspecies make up the entire species. After a review of the best
available scientific and commercial information, we find that listing
both subspecies is warranted. Accordingly, we propose to list the
eastern subspecies as endangered and the western subspecies as
threatened with protective regulations issued under section 4(d) of the
Act (a ``4(d) rule''). We find that designation of critical habitat for
both subspecies is not determinable at this time.
DATES: We will accept comments received or postmarked on or before
October 7, 2024. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by September 20, 2024.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter FWS-R6-ES-2023-0182,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
[[Page 63889]]
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R6-ES-2023-0182, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R6-ES-2023-0182.
FOR FURTHER INFORMATION CONTACT:
For the eastern regal fritillary--Sonja Jahrsdoerfer, Project
Leader, Pennsylvania Ecological Services Field Office, 110 Radnor Road,
Suite 101, State College, PA 16801; telephone 814-206-7474.
For the western regal fritillary--Chris Swanson, Field Supervisor,
North and South Dakota Ecological Services Field Offices, 420 South
Garfield Avenue, Suite 400, Pierre, SD 57501; telephone 605-222-0228.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States. Please see Docket No. FWS-R6-ES-2023-0182 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> for a document that summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et
seq.), the term ``species'' includes any subspecies of fish or wildlife
or plants, and any distinct population segment of any species of
vertebrate fish or wildlife which interbreeds when mature. A subspecies
warrants listing under the Act if it meets the definition of an
endangered species (in danger of extinction throughout all or a
significant portion of its range) or a threatened species (likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range). If we determine that a
subspecies warrants listing, we must list the subspecies promptly and
designate the subspecies' critical habitat to the maximum extent
prudent and determinable. We have determined that the eastern regal
fritillary (eastern subspecies) meets the Act's definition of an
endangered species and that the western regal fritillary (western
subspecies) meets the Act's definition of a threatened species;
therefore, we are proposing to list them as such. Listing a subspecies
as an endangered or threatened species can be completed only by issuing
a rule through the Administrative Procedure Act rulemaking process (5
U.S.C. 551 et seq.).
What this document does. We propose to list the eastern regal
fritillary as an endangered species and to list the western regal
fritillary as a threatened species with a 4(d) rule. As explained later
in this document, we conclude that the designation of critical habitat
for these subspecies is not determinable at this time.
The basis for our action. Under the Act, we may determine that a
subspecies is an endangered or threatened species because of any of
five factors: (A) the present or threatened destruction, modification,
or curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the eastern regal
fritillary is endangered due to the loss and fragmentation of its
remaining grassland habitats from invasive plants and woody
encroachment (Factor A) and periodic disturbances, such as fire,
military operations, and other management activities if they are too
large, frequent, or intense (Factor A). These threats are exacerbated
by the ongoing effects of drought and climate change (Factors A and E).
We have determined that the western regal fritillary is threatened
due to the expected continued loss and fragmentation of large, intact
native grasslands through conversion by agriculture and development
(Factor A); invasive plants and woody vegetation (Factor A); the
reduction of violets and nectar sources from the broadcast application
of herbicides (Factor A); and periodic disturbances from fire, mowing,
and haying that are too large, frequent, or intense (Factor A). These
threats are all exacerbated by the ongoing and expected effects of
drought and climate change (Factors A and E).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary), to the maximum extent prudent and determinable, to
designate critical habitat concurrent with listing. Section 3(5)(A) of
the Act defines critical habitat as (i) the specific areas within the
geographical area occupied by the species at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protection; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
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 governmental agencies, Native American
Tribes, the scientific community, industry, or any other interested
parties concerning this proposed rule. We particularly seek comments
concerning:
(1) The subspecies' biology, range, and population trends,
including:
(a) Current ranges, including distribution patterns and the
locations of any additional populations of the subspecies;
(b) Current population levels, and current and projected trends;
and
(c) Past and ongoing conservation measures for the subspecies,
their habitats, or both.
(2) Threats and conservation actions affecting the subspecies,
including:
(a) Factors that may be affecting the continued existence of the
subspecies, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors;
(b) Relevant data concerning any threats (or lack thereof) to the
subspecies; and
(c) Existing regulations or conservation actions that may be
addressing threats to these subspecies.
(3) Additional information concerning the current status of the
subspecies.
(4) Information to assist with applying or issuing protective
regulations under section 4(d) of the Act that may be
[[Page 63890]]
necessary and advisable to provide for the conservation of the western
regal fritillary.
(a) In particular, information concerning the extent to which we
should include any of the section 9 prohibitions in the 4(d) rule; or
(b) whether we should consider any additional or different
exceptions from the prohibitions in the 4(d) rule.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Our final determinations may differ from this proposal because we
will consider all comments we receive during the comment period as well
as any relevant information that becomes available after this proposal
is published. Based on the new information we receive (and, if
relevant, any comments on that new information), we may conclude that
the eastern subspecies is threatened instead of endangered or that the
western subspecies is endangered instead of threatened, or we may
conclude that one or both of the subspecies do not warrant listing as
either an endangered species or a threatened species. In addition, we
may change the parameters of the prohibitions or the exceptions to
those prohibitions in the protective regulations under section 4(d) for
the western regal fritillary if appropriate in light of comments and
new information received. For example, we may expand the prohibitions
to include prohibiting additional activities if we conclude that those
additional activities are not compatible with conservation of the
western regal fritillary. Conversely, we may establish additional
exceptions to the prohibitions in the final rule if we conclude that
the activities would facilitate or are compatible with the conservation
and recovery of the western subspecies. In our final rule, we will
clearly explain our rationale and the basis for our final decisions,
including why we made changes, if any, that differ from this proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
We designated the regal fritillary as a Category 2 candidate in the
May 22, 1984, Review of Invertebrate Wildlife for Listing as Endangered
or Threatened Species (49 FR 21664). We defined Category 2 candidates
as taxa for which we had information that proposed listing was possibly
appropriate, but conclusive data on biological vulnerability and
threats were not available to support a proposed rule at the time. The
species remained so designated in subsequent annual candidate notices
of review (CNORs) (54 FR 554, January 6, 1989; 56 FR 58804, November
21, 1991; 59 FR 58982, November 15, 1994). In the February 28, 1996,
CNOR (61 FR 7596), we discontinued the designation of Category 2
species as candidates; therefore, the regal fritillary was no longer a
candidate species.
On April 19, 2013, we received a petition from WildEarth Guardians
to list the regal fritillary under the Act. On September 18, 2015, we
published in the Federal Register (80 FR 56423) a substantial 90-day
finding for the regal fritillary. The eastern and western subspecies
are the only two subspecies of the regal fritillary species, so this
document constitutes our 12-month warranted petition finding and our
proposed listing rule for the regal fritillary.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the eastern and western subspecies of regal fritillary. The SSA team
was composed of Service biologists, in consultation with other species
experts. The SSA report represents a compilation of the best scientific
and commercial data available concerning the status of both subspecies,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting the subspecies.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review in
listing actions under the Act, we solicited independent scientific
review of the information contained in the SSA report for the eastern
and western subspecies. We sent the SSA report to 14 appropriate and
independent peer reviewers and received 5 responses. Results of this
structured peer review process can be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R6-ES-2023-0182 and at <a href="https://fws.gov/library/categories/peer-review-plans">https://fws.gov/library/categories/peer-review-plans</a>. In preparing this
proposed rule, we incorporated the results of these reviews, as
appropriate, into the SSA report, which is the foundation for this
proposed rule.
Summary of Peer Reviewer Comments
As discussed in Peer Review above, we received comments from five
peer reviewers on the draft SSA report. We reviewed all comments from
the peer reviewers for substantive issues and new information regarding
the contents of the SSA report. The peer reviewers concurred with our
methods and conclusions, and provided additional information,
clarifications, and suggestions, including corrections on wingspan
measurements, suggestions for additional relationships between nodes on
our conceptual models, potential uncertainty associated with geospatial
landcover and climate
[[Page 63891]]
models, and other editorial suggestions. We updated the SSA report
accordingly. No substantive changes to our analysis and conclusions
within the SSA report were deemed necessary, and we addressed all peer
reviewer comments in version 1.0 of the SSA report (Service 2023,
entire).
I. Proposed Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
regal fritillary, including both the eastern and western subspecies, is
presented in the SSA report (Service 2023, pp. 44-68, 180-194). We use
the term ``species'' to refer to the regal fritillary and any
information describing or relating to the species applies to both the
eastern and western subspecies, unless specified otherwise.
The regal fritillary is a large, nonmigratory butterfly found in
the grassland habitats of the Fort Indiantown Gap (FTIG) National Guard
Training Center in Pennsylvania (the eastern subspecies) and portions
of 14 States, from Indiana to Colorado and from North Dakota to
Oklahoma (the western subspecies). Adults have dorsal orange forewings
and dark hindwings that feature black bars, fine white markings, and
two rows of large spots at the base of the wings. Adults are similar in
size to the monarch butterfly (Danaus plexippus), with wingspans
ranging from approximately 6.8 to 10.5 centimeters (cm) (2.67 to 4.13
inches (in)) (Selby 2007, p. 14); however, the regal fritillary's
predominately orange forewings and dark hindwings distinguish it from
other butterflies (Service 2023, p. 44).
The regal fritillary has one generation per year. In the late
summer and early fall, females lay eggs that hatch into larvae within 2
to 3 weeks. The larvae overwinter in nearby grassland vegetation before
emerging in early spring to search for violets (Viola spp.), their only
food source (Royer and Marrone 1992, p. 21; Kopper et al. 2000, pp.
661, 663). In late May through mid-July, the larvae pupate in the leaf
litter of warm season grasses (Selby 2007, p. 32; Ferster and Vulinec
2010, p. 7) and emerge as adults beginning in June (Service 2023, pp.
49, 50). Adults rely on nectar sources for food, and reproductive rates
improve when nectar plants are abundant and high-quality (Wagner et al.
1997, p. 268; Selby 2007, p. 33). Adult males live for approximately 4
to 6 weeks and begin to die off in mid-July; adult females live for 8
to 12 weeks and may survive into late October (Wagner et al. 1997, p.
266; Kopper et al. 2001, pp. 174-175; Service 2023, pp. 4, 49).
Regal fritillary adults are strong and rapid flyers and may move
long distances in search of nectar (Schweitzer 1989, p. 135; Selby
2007, p. 26; Service 2023, p. 50). Adults, particularly females, can
move significant distances, up to 161 kilometers (100 miles), during
their several-months-long lifespan to access suitable habitats on the
landscape (Hammond 2021, pers. comm.; Service 2023, p. 50). Individuals
may disperse to avoid localized threats and poor habitat conditions,
which allows the species to respond to changing environmental
conditions and to recolonize suitable habitats, but dispersal depends
on the availability of nectar and the connectivity and size of the
available habitats (Schweitzer 1989, p. 135; Selby 2007, p. 26; Hammond
2021, pers. comm.; Service 2023, pp. 50, 192). Recolonization may fail
if source populations are too far away or if habitat patches are too
small, isolated, disconnected, or degraded (Hammond 2021, pers. comm.;
Service 2023, p. 50).
The regal fritillary is a landscape-level species that needs large,
intact grasslands at a landscape scale, and depends on a shifting
mosaic of large, well-connected, diverse grasslands with violets for
larvae; nectar sources for adults; and warm season, native bunchgrasses
for shelter at all life stages (Ferster and Vulinec 2010, p. 39; Caven
et al. 2017, p. 199; Service 2023, pp. 51, 55). The grasslands need to
be large and contiguous, generally more than 3.86 square miles (1,000
hectares), and be maintained by periodic disturbances. Such
disturbances, which include fire, mowing, and military operations for
the eastern subspecies, and fire, haying, and grazing for the western
subspecies, help maintain the grasslands by reducing woody plants and
encroachment (Service 2023, pp. 4, 8, 69-85).
However, large, intense or frequent, or permanent disturbances can
also cause negative individual- or population-level effects,
particularly during the sedentary, early life stages of the butterfly
(Service 2023, p. 4). The regal fritillary cannot survive in altered
landscapes, including row crop fields, nonnative pastures, developed
areas surrounding prairie remnants (Selby 2007, p. 3), or forests
(Service 2023, p. 51). As a result, the regal fritillary is considered
a grassland specialist (Swengel 1996, p. 76) and an indicator of the
health of native prairie (Royer and Marrone 1992, p. 4; Service 2023,
p. 51).
The regal fritillary is also a ``boom-and-bust'' species, which
means that when environmental conditions and habitat characteristics
are favorable, significant increases in annual population abundance and
distribution may occur (Service 2023, pp. 4, 280, 284). When conditions
are unfavorable, individuals become scarce, and local extirpations may
occur in areas that may be recolonized when and if conditions improve.
The ability to disperse over relatively long distances and the boom-
and-bust dynamic helps the species withstand stochastic events,
catastrophic events, and environmental change. However, the loss and
fragmentation of grassland habitats can interfere with the boom-and-
bust pattern by isolating populations, contributing to local
extirpations, and limiting recolonizations.
The largest and most resilient regal fritillary populations occupy
large, diverse, contiguous grasslands at a landscape scale. These large
populations better withstand stochastic events and function as source
populations for the species to recolonize nearby areas when favorable
conditions return. Assemblages of regal fritillary populations create a
metapopulation, which for the regal fritillary includes at least three
or more populations separated by 32 to 160 kilometers (20 to 100 miles)
that are linked by infrequent dispersal, are spread over multiple
habitats and breeding sites, and have some local areas remaining
occupied despite losses of individual populations. This metapopulation
structure provides reliable habitat refugia during adverse conditions
and source populations for recolonizations during favorable conditions
(Schweitzer 1989, p. 135; Royer and Marrone 1992, p. 26; Service 2023,
p. 55). Metapopulation-level processes, supported by the species'
dispersal ability and boom-and-bust dynamic, appear to be critical to
the long-term persistence of the regal fritillary. However, the
fragmentation of prairie grasslands across the species' overall range,
largely the result of conversion to other land uses for the western
subspecies and woody encroachment for the eastern subspecies, has
resulted in smaller, more widely separated populations with genetic
exchange occurring at reduced rates from historical levels. As a
result, the metapopulation structure is currently absent for the
eastern subspecies and limited for the western subspecies, particularly
in the Midwest (Schweitzer 1993, p. 9; Service 2023, p. 55).
Historically, the regal fritillary was considered common among
prairie and grassland butterflies in the United States, particularly in
tallgrass prairie habitats (Hammond and McCorkle
[[Page 63892]]
1983(84), p. 219), with an overall historical range across 32 States
(Selby 2007, pp. 10, 14; Service 2023, p. 56). But, beginning in the
1930s and continuing through the 1990s, the species' overall range
contracted substantially, most severely in the East and Midwest (Wagner
et al. 1997, pp. 261, 262; Selby 2007, p. 17). Following this decline,
the eastern subspecies now occupies a small portion of Pennsylvania at
FTIG, and the western subspecies occupies portions of 14 States
(Service 2023, p. 57). After 2009, when the last eastern individual was
observed in Virginia (Chazal 2014, p. 2), FTIG in Pennsylvania became
the sole remaining site in the East with a known population (Service
2023, p. 57). Several factors may have contributed to the rapid decline
of the species in the East, including land use changes, development,
forest succession, pesticide use, and other activities or events that
resulted in the collapse of the metapopulation processes (Williams
1999, p. 3; Schweitzer 1993, p. 9). In the West, the loss of native
prairie grasslands since the 1800s via conversion to agriculture and
development had the most significant impact on the regal fritillary
(Service 2023, pp. 5, 57).
Taxonomists previously classified the regal fritillary as Speyeria
idalia, but now classify the species as Argynnis idalia, in the
subgenus Speyeria. The eastern and western subspecies are genetically
and morphologically different and are currently separated by
approximately 869 kilometers (540 miles), from Pennsylvania to Indiana,
so genetic exchange between the two subspecies is highly unlikely
(Service 2023, pp. 34, 46). The best available scientific information
indicates that there are two valid subspecies of regal fritillary: the
eastern subspecies (A. i. idalia) and the western subspecies (A. i.
occidentalis) (Williams 2001b, entire; Williams et al. 2003, p. 17;
Keyghobadi et al. 2013, p. 235; Rutins et al. 2022, p. 4; Service 2023,
pp. 182-186). We discuss the distribution and trends for each
subspecies below, with additional information provided in our SSA
report (Service 2023, entire).
Eastern Regal Fritillary: Distribution and Trends
The eastern subspecies is currently found as a single population
located on FTIG. Moisture levels are more mesic (moderately moist) in
the East than in the West. The eastern subspecies has distinct
haplotypes that are not present in any other known extant regal
fritillary population (Williams 2001, pp. 146, 151; Service 2023, pp.
34, 64). Currently, there are approximately 800 individuals in the
population at FTIG, and the population exhibits signs of restricted
gene flow (Keyghobadi et al. 2006, p. 3; Rutins et al. 2022, p. 4;
Service 2023, pp. 64-65).
Established in 1931, FTIG has been used continuously for military
training exercises that periodically disturb the ground and open
grassland patches, and incidentally help maintain remnant grassland
patches as an old field, successional stage (Ferster et al. 2008, p.
142). Without these activities, the remaining grassland habitats for
the eastern regal fritillary would have converted to forests like the
surrounding ecoregions (Ferster et al. 2008, p. 142). FTIG also uses
prescribed burns and mechanical treatments, such as mowing and tree
cutting, specifically to maintain and improve the eastern subspecies'
remaining grassland habitats (Ferster and Vulinec 2010, pp. 39, 40;
Service 2023, p. 52). As a result, the eastern subspecies is found in
the remaining grasslands at FTIG on approximately 457 acres (185
hectares) that are the result of military and other activities that
maintain open areas and promote regal fritillary presence (Zercher et
al. 2002, p. 13; Service 2023, p. 61). FTIG has monitored the eastern
subspecies since 1997 (Ferster and Vulinec 2010, p. 31) and conducts
surveys annually to monitor the population and habitats (Zercher et al.
2002, pp. M-6-M-8; Pennsylvania Department of Military and Veterans
Affairs (PADMVA) 2021, entire; Zografou et al. 2021, p. 10; Rutins et
al. 2022, p. 2). Conservation activities to benefit the eastern
subspecies at FTIG are conducted through an integrated natural
resources management plan (INRMP); however, the activities at FTIG that
benefit the eastern subspecies could change at any time depending on
funding and priorities (PADMVA 2021, pp. 20, 31; Swartz 2022, pers.
comm.).
Western Regal Fritillary: Distribution and Trends
The western subspecies currently occupies portions of 14 States:
Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Minnesota,
Missouri, Nebraska, North Dakota, Oklahoma, South Dakota, Wisconsin,
and Wyoming. The western subspecies historically occupied a much larger
portion of the overall species' range than the eastern subspecies.
Thus, while the eastern subspecies was nearly eliminated with the east-
to-west contraction in the subspecies' range, populations of the
western subspecies remain where large grasslands are unconverted,
intact, and contiguous. However, the western subspecies is generally
considered to have a declining population trend, largely a result of
land conversion to agriculture and development. Habitat fragmentation
generally decreases east to west across the western subspecies' range,
and as the size and number of suitable prairie remnants increases,
there is a corresponding increase in size, number, and long-term
viability of the western subspecies' populations (Selby 2007, p. 18).
The western subspecies occurs in 21 populations, or analytical
units, as described in the SSA report (Service 2023, pp. 65-67), and 3
representation units: the Midwest, Northern Great Plains, and Central
Great Plains. In the Midwest, across Arkansas, Illinois, Indiana, Iowa,
Minnesota, Missouri, and Wisconsin, western regal fritillary
populations are now restricted to small, isolated patches of prairie
remnants that are generally less than 98.9 acres (40 hectares) in size
(Robertson et al. 1997 in Panzer and Schwartz 2000, p. 363), scattered
across a landscape primarily dominated by agriculture. To the west, the
Northern and Central Great Plains are the remaining strongholds for the
western subspecies, as large, intact grasslands remain. Western regal
fritillary populations within Kansas, Nebraska, North Dakota, and South
Dakota are relatively larger and more numerous, due to the less
fragmented suitable grassland patches compared to those in the Midwest
(Selby 2007, p. 20). Approximately 84 percent of the western regal
fritillary's gross, overall range (the outer boundary of all 21
populations) is privately owned (Service 2023, p. 66). Approximately 7
percent of this gross, overall range is Tribal, 4 percent is State, 2
percent is managed by the Bureau of Land Management, 2 percent is
managed by the U.S. Forest Service, and less than 1 percent each is
managed by the Service, the Department of Defense, and the National
Park Service (Service 2023, p. 66).
The Northern Great Plains and Central Great Plains representation
units currently support relatively more intact and better-connected
grasslands, primarily used for livestock grazing or haying, than the
Midwest unit, but the plains units are drier, are more prone to
drought, and have fewer tallgrass species comprising the grasslands,
which may reduce the quality of the habitats for the western regal
fritillary. The Northern Great Plains representation unit experiences
shorter growing seasons and colder weather patterns than those in the
Central Great Plains, which may also reduce the quality of the habitats
for the western
[[Page 63893]]
regal fritillary. Habitats in the Midwest representation unit are
primarily small, isolated patches in an agriculturally dominated
landscape, and many sites exist as conservation preserves, i.e., small
remnants of the once-vast tallgrass prairie, which may be less than
suitable for the western regal fritillary (Service 2023, p. 130).
At the western extent of the western subspecies' overall range,
grasslands are drier and classified as shortgrass prairie rather than
tallgrass or mixed grass, which may provide lower quality habitat for
the western subspecies. As a result, populations tend to be small and
isolated. Scattered occurrences in the western part of the western
subspecies' overall range generally occur in riparian zones or other
moist habitats where nectar sources and violets are available (Selby
2007, p. 14). The States on both the western and southern fringes of
the regal fritillary's range, including Arkansas, Colorado, Oklahoma,
and Wyoming, are sparsely occupied by the western subspecies, with
individuals occurring only in the portions of those States that border
adjacent occupied areas in other States, including Kansas and Nebraska.
Western regal fritillary individuals have been observed in Montana, but
there are no known populations (Service 2023, p. 56).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. On April 5, 2024, jointly with the National Marine
Fisheries Service, we issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and what criteria we apply when
designating listed species' critical habitat (89 FR 24300). On the same
day, we published a final rule revising our protections for endangered
species and threatened species at 50 CFR 17 (89 FR 23919). These final
rules are now in effect and are incorporated into the current
regulations.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis, which is
further described in the 2009 Memorandum Opinion on the foreseeable
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at <a href="https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf">https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf</a>).
The foreseeable future extends as far into the future as the U.S. Fish
and Wildlife Service and National Marine Fisheries Service (hereafter,
the Services) can make reasonably reliable predictions about the
threats to the species and the species' responses to those threats. We
need not identify the foreseeable future in terms of a specific period
of time. We will describe the foreseeable future on a case-by-case
basis, using the best available data and taking into account
considerations such as the species' life-history characteristics,
threat projection timeframes, and environmental variability. In other
words, the foreseeable future is the period of time over which we can
make reasonably reliable predictions. ``Reliable'' does not mean
``certain''; it means sufficient to provide a reasonable degree of
confidence in the prediction, in light of the conservation purposes of
the Act.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess the viability of the eastern and western subspecies of
regal fritillary, we used the three conservation biology principles of
resiliency, redundancy, and representation (Shaffer and Stein 2000, pp.
306-310). Briefly, resiliency is the ability of the species to
withstand environmental and demographic stochasticity (for example, wet
or dry, warm or cold years);
[[Page 63894]]
redundancy is the ability of the species to withstand catastrophic
events (for example, droughts, large pollution events); and
representation is the ability of the species to adapt to both near-term
and long-term changes in its physical and biological environment (for
example, climate conditions, pathogens). In general, species viability
will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the subspecies' ecological requirements for survival and
reproduction at the individual, population, and subspecies levels, and
described the beneficial and risk factors influencing the subspecies'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the subspecies' life-history
needs. The next stage involved an assessment of the historical and
current conditions of the subspecies' demographics and habitat
characteristics, including an explanation of how each subspecies
arrived at its current condition. The final stage of the SSA involved
making projections about the subspecies' responses to positive and
negative environmental and anthropogenic influences. Throughout these
stages, we used the best available information to characterize
viability as the ability of a subspecies to sustain populations in the
wild over time, which we then used to inform our regulatory decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R6-
ES-2023-0182 on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
eastern and western regal fritillary and their resources, and the
threats that influence each subspecies' current and future condition,
in order to assess each subspecies' overall viability and the risks to
that viability. We analyze these factors both individually and
cumulatively to determine the current condition of each of the
subspecies and project the future condition of each subspecies under
several plausible future scenarios. We begin with a summary of the
species' needs and risk factors, which are generally similar for both
subspecies, followed by a summary of conditions first for the eastern
subspecies and then the western subspecies.
Species Needs
Eastern and western regal fritillary individuals share many of the
same needs, including large, contiguous blocks of native grasslands,
violets to support larvae, warm season bunchgrasses for shelter, and
nectar sources for adults (Service 2023, pp. 5-8, 69-85), so this
discussion applies to both the eastern and western subspecies. In
general, regal fritillary individuals need an adequate abundance of
violets and nectar sources, appropriate grassland conditions (including
litter, tall or shrubby cover), warm season bunchgrass tussocks, and
adequate moisture and ambient temperatures in order to breed, feed, and
shelter. Grasses are generally native species (indigenous to the
particular area), and are either tallgrasses or mixed grasses, although
the eastern regal fritillary may be more tolerant of nonnative grasses
with similar bunchgrass structure. Ambient temperatures need to be
suitable, generally between 75 to 105 [deg]F (24 to 41[deg]C) during
the appropriate season for larvae to grow and for adults to survive
(McCorkle and Hammond 1988, p. 192; Selby 2007, p. 36; Nail 2016, pp.
4, 9, 13, 15; Klockmann and Fischer 2017, p. 10872; Service 2023, p.
76). The grasslands need to be sufficiently large and contiguous (Kelly
and Debinski 1998, p. 272; Schweitzer 1989, p. 134), ideally more than
2,471 acres (1,000 hectares) in size, and be maintained by periodic
disturbances (Service 2023, pp. 8, 70-86).
The regal fritillary is a landscape-scale (spatially heterogeneous
geographic areas characterized by diverse interacting patches or
ecosystems) species, so large, contiguous blocks of native grasslands
are the species' primary resource need (Service 2023, pp. 4, 55, 81-
86). Large, contiguous grasslands tend to have more variable site
conditions that support more diverse plant life; their greater area
encompasses more habitat overall, and they are more likely to exhibit
the shifting mosaics of heterogeneous habitats that favor sufficiently
resilient regal fritillary populations. Generally, the larger the
grassland patch, the better it supports abundant and adequately
resilient regal fritillary populations, as long as the patch is also
maintained with periodic disturbance.
Individuals do not appear to prefer small habitat patches
(Schweitzer 1989, p. 134), which do not support the required shifting
resources and disturbance regimes that maintain grassland habitats and
sufficiently resilient regal fritillary populations. For the western
subspecies, small habitat patches may be as small as 400 acres (162
hectares) in size (Hammond 2021, pers. comm; Service 2023, pp. 82-84).
Small grassland tracts containing regal fritillary colonies may be more
vulnerable to extirpation than larger blocks of native grasslands, but
multiple colonies on small patches that are close to one another and
occur as part of a collectively larger group of habitats may function
together as a population. When adults in colonies can move across the
matrix to reach other suitable habitat patches, the collective occupied
habitats may exhibit diverse conditions that can better support the
species' life-history needs.
To be sufficiently resilient, regal fritillary populations need to
be of adequate size, with at least 200 to 500 adults or more to
maintain genetic diversity and withstand stochastic events (Service
2023, p. 89). For redundancy and representation, the species needs
metapopulation processes supported by an adequate number and
distribution of sufficiently connected, large populations across the
large, contiguous grasslands to withstand catastrophic events and adapt
to environmental change (Service 2023, pp. 7-8, 89-91).
Risk Factors for the Eastern and Western Subspecies
We reviewed the potential risk factors (i.e., threats, stressors)
that could be affecting the eastern and western subspecies of regal
fritillary (Service 2023, pp. 8-11, 93-120, 215-277). Here, we discuss
only those risk factors in detail that we considered drivers of
resiliency, or those that could meaningfully affect the status of
either subspecies. Many of the threats and risk factors are the same or
similar for both subspecies, so where the effects are expected to be
similar, we present one summary that applies to both subspecies. Where
the threats and their effects may be unique to one subspecies, we
address those specifically.
Both subspecies are vulnerable to fragmentation and isolation when
habitats are degraded or lost. The primary risk factors (i.e., threats)
affecting the status of the eastern subspecies are invasive plants,
particularly woody encroachment that results in forest succession;
drought; climate change factors; and periodic disturbances from large
or intense fire or other activities. The eastern subspecies is
vulnerable to woody encroachment, and periodic disturbances are
necessary to ensure the grasslands do not become reforested, but these
disturbances may
[[Page 63895]]
also present a risk if they are too frequent or intense.
The primary risk factors (i.e., threats) affecting the status of
the western subspecies are grassland conversion, primarily due to
agriculture; herbicides that are applied broadly (often aerially);
drought; invasive grasses and woody vegetation; periodic disturbances
from fire, haying, and grazing; and climate change factors (Service
2023, pp. 10, 119-120). Although disease, predation, parasitism,
competition and hybridization with sympatric butterflies, and
collection may affect individuals, we did not find these risk factors
to be current or future threats to either subspecies. We summarize
these risk factors below, with additional detail and analysis provided
in our SSA report (Service 2023, pp. 8-11, 93-120, 215-277).
Grassland Conversion: Agriculture and Development
This risk factor applies only to the western subspecies. An
estimated 400 million acres (162 million hectares) of native prairie
historically existed in North America prior to European settlement in
the 1800s; these biomes have since been converted primarily to
agriculture, resulting in as much as a 99.9 percent reduction in native
prairie ecosystems, with the most severe declines among former
tallgrass habitats (Samson and Knopf 1994, p. 418; Service 2023, p.
97). Conversion of grasslands to other uses, such as for agriculture
and development, reduces the amount, availability, connectedness, size,
and quality of the native grasslands needed by the regal fritillary
(Hammond and McCorkle 1983(84), p. 218; Davis et al. 2007, p. 1342;
Powell et al. 2007, p. 124; Selby 2007, p. 3; Sims 2017, p. 1; Swengel
and Swengel 2017, p. 2; Marschalek 2020, p. 891; Niemuth et al. 2021,
p. 2). While agriculture is the dominant activity that has reduced
North American grasslands, any development activity that removes native
prairie sod, such as road construction, road maintenance, gravel
mining, housing and commercial developments, and energy projects, may
reduce and fragment western regal fritillary habitat (Selby 2007, p. 3;
Service 2023, pp. 98-100).
The majority of tallgrass prairie that remains today, particularly
in the Midwest, is limited to small, isolated remnant tracts that are
fractions of their former size and extent. Farther west, mixed-grass
prairie has also been impacted by conversion and other uses; mixed-
grass prairie has been reduced to 30 percent of historical amounts
(World Rangeland Learning Experience 2021, entire). Much of the mixed-
grass prairie is also fragmented and isolated due to grassland
conversion. Shortgrass prairies at the western edge of the western
subspecies' range are the most intact, but western regal fritillary
populations may not occur there and may instead be found as small,
ephemeral colonies in scattered moist habitats within these relatively
dry grasslands (Selby 2007, p. 24).
Conversion of grasslands to agriculture reduces and fragments
western regal fritillary habitats and isolates populations, which, when
they are reduced to small, isolated remnant habitat patches, are
vulnerable to local extirpations. Remaining grassland patches may be
too small to support the violets, grasses, and nectar sources needed by
individuals, and the patches are often surrounded by an unsuitable
matrix of agriculture and development. Conversion to agriculture and
development present a barrier to dispersal and gene flow by preventing
individuals from either attempting to disperse or reducing the
likelihood that dispersals will result in successful recolonization.
When dispersals are less successful, recolonizations become less
likely, genetic diversity declines, inbreeding may suppress population
expansion, populations are less able to adapt to their changing
environment, and local extirpations may begin to outpace
recolonizations (Service 2023, p. 98).
Agricultural conversion of grasslands occurs at a rate of more than
1 million acres (404,685 hectares) per year, with projected conversion
``hotspots'' projected in western regal fritillary habitats in North
Dakota, South Dakota, Iowa, and Missouri (Lark et al. 2020, p. 3). This
risk factor to the western regal fritillary is ongoing and projected to
increase in the future (Service 2023, pp. 96-99, 134, 142, 245-255).
Broad Application of Herbicides
This risk factor applies only to the western subspecies. Herbicides
are chemicals that may be used at least once in a growing season to
control broadleaf weeds or grasses in crop fields. Herbicides are also
commonly used to control woody vegetation and weeds in both public and
private grasslands, including native prairie. If not used carefully,
herbicides can indirectly impact regal fritillary populations by
eliminating or reducing nectar and foodplants, especially if applied
during critical periods of the western regal fritillary's lifecycle.
Adverse effects can occur when herbicides are applied within regal
fritillary habitat or nearby, where they can drift into western regal
fritillary habitat (Dana 1997, p. 3; Stark et al. 2012, pp. 25, 27;
Cordova et al. 2020, p. 5; Service 2023, p. 101). The effects of
herbicide use may be especially problematic in areas where violets and
nectar food sources are already limited, such as in small, isolated
grassland patches. Additionally, herbicide drift from adjacent
croplands into regal fritillary habitats may have limited and temporary
effects to individuals and habitats by temporarily reducing the
availability of violets and nectar sources. Active and inert
ingredients in herbicides may also be toxic to western regal fritillary
individuals.
The application of herbicides is most detrimental to the western
regal fritillary when it is applied, often aerially, across large areas
of native grasslands specifically to reduce native forbs, including
violets, so that more grasses are available to graze livestock. This
practice dramatically reduces the quantity of violets and nectar
sources available to the western regal fritillary (Service 2023, pp.
101-102). This practice of broad herbicide application to reduce native
forbs is ongoing, particularly on private lands in eastern South
Dakota, the Flint Hills of Kansas, and Oklahoma (Service 2023, pp. 101-
102). Unlike the potentially limited or temporary effects to habitats
and individuals from herbicide drift, this practice directly exposes
native grasslands to herbicides and could dramatically reduce the
numbers of violets and nectar sources. The reduction and removal of
violets and nectar sources in native grasslands may extirpate local
colonies (Selby 2007, p. 36) and, if more widespread, could also
decrease population abundance and resiliency. This risk factor is
ongoing and is likely to increase in the future.
Invasive and Woody Plants and Encroachment
This risk factor applies to both the eastern and western
subspecies. Invasive, nonnative (exotic) plants and woody vegetation
may degrade the quality and quantity of native grasslands needed by
both the eastern and western regal fritillary. These nonnative plants
may spread into native habitats from purposefully planted areas to form
self-perpetuating populations (Fulbright et al. 2013, p. 505). The
invading plant species of concern and the magnitude, scope, and
exposure to the eastern and western subspecies vary by location.
Invasive grass species include Kentucky bluegrass (Poa patrensis) and
smooth brome (Bromus inermus), which are the two primary species
invading the Midwestern and Northern Great Plains
[[Page 63896]]
prairies (Royer and Marrone 1992, p. 28; Selby 2007, p. 33; Gaskin et
al. 2021, p. 236-237; Service 2023, pp. 104-105, 256). Woody plant
species may include eastern red cedar (Juniperus virginiana) for the
western subspecies and a variety of woody species from the surrounding
forested habitat at FITG for the eastern subspecies, (Swartz 2021,
pers. comm.; Service 2023 pp. 105-107; 256). Conservation efforts that
target invasive plants, which may include fire, grazing, or mechanical
or chemical controls, may reduce the stressor. However, invasive
grasses and woody plant encroachment are challenging to control and
known to degrade native grassland quality and quantity and may become
more widespread, and potentially problematic, in the future.
Although an issue for both subspecies, woody encroachment is a
primary risk factor for the eastern subspecies, where forested
ecosystems are more prevalent and contributed to the historical decline
of the eastern subspecies' grassland habitats. At FTIG, prescribed
fire, mowing, and targeted brush cutting are used frequently to
suppress shrub and tree sprouts, and without this important vegetation
management, habitat for the eastern subspecies would be rapidly
reforested and rendered unsuitable (Service 2023, p. 105). As with
invasive grasses, over time, the continued degradation due to woody
encroachment is likely to increasingly fragment and isolate habitats
and is a risk factor to both the eastern and western subspecies.
Periodic Disturbances: Fire, Haying, Mowing
This risk factor applies to both the eastern and western
subspecies, with fire a risk factor for the eastern subspecies and
fire, haying, and mowing a risk factor for the western subspecies.
Fire, haying, mowing, and other activities, such as the manual or
chemical removal of weeds or woody vegetation, are common disturbances
in grasslands and are necessary to conserve these habitats, but they
may negatively impact both the eastern and western subspecies (Selby
2007, p. 3). Unmanaged grasslands may become overgrown, invaded by
woody vegetation or exotic species, or covered in thatch that inhibits
floral diversity and suppresses violets and nectar sources. Although
beneficial at the appropriate frequency, magnitude, and intensity,
periodic disturbances can trample, crush, burn, or poison individuals,
and temporarily or permanently remove important resource needs. When
these periodic disturbances occur in large, contiguous native grassland
landscapes, mortality typically does not result in population losses,
as individuals may disperse to adjacent areas and affected habitats may
eventually be recolonized.
However, periodic disturbances on smaller, more-isolated patches of
grasslands, which are now the dominant patch size available for both
subspecies, may extirpate local populations, and without nearby
refugia, these disturbances can potentially preclude recolonization or
cause population impacts lasting several years (Swengel 1996, p. 73).
Timing and intensity can also determine the level of impact. For
example, moderate-to-light grazing that maintains native grasslands and
removes excessive thatch, controls invasive species, and stimulates
native plant growth, is generally considered beneficial to the regal
fritillary, but heavy grazing that does not promote native grasslands
is not (Royer and Marrone 1992, p. 28; Service 2023, p. 110); fires on
a 3- to 5-year rotation (Henderson et al. 2018, p. 41; McCullough et
al. 2019, p. 9) may be beneficial, while shorter or longer intervals
between burns are more detrimental (McCullough et al. 2019, p. 9),
although annual burns may still provide some benefits to habitat
compared to no burning (Henderson et al. 2018, p. 41). When applied on
a landscape scale appropriately (proper timing, extent, intensity,
frequency), these disturbances can minimize regal fritillary mortality
while creating a shifting mosaic of habitats in various successional
stages that provide a net benefit to the species' resiliency. However,
when applied inappropriately, they pose a threat to both regal
fritillary individuals and populations, particularly those that are
already at risk due to other factors, such as their small size and
isolation.
Currently, the Midwest populations of the western subspecies,
because they occur in small, isolated patches, are vulnerable to the
negative impacts of improperly applied periodic disturbances. Many
populations in the Great Plains are also small, but the landscape is
less fragmented; thus, disturbed sites are more easily recolonized when
favorable vegetative conditions return. However, this could change in
the future as more conversion and drought reduce and fragment habitats.
At FTIG, the INRMP guides the periodic disturbances to benefit the
eastern subspecies, but should these periodic disturbance activities
stop, the resiliency of the eastern subspecies could decline
significantly (Service 2023, p. 110).
Drought
This risk factor applies to both the eastern and western
subspecies. By reducing precipitation, drought can significantly reduce
violet and nectar sources, so drought is a risk factor for both the
eastern and western subspecies. The regal fritillary is sensitive to
prolonged, dry periods from drought, and population extirpations may
occur, particularly in small, isolated habitats that lack heterogeneity
(Service 2023, p. 106). With their long flight period and relatively
long lifespan, adult regal fritillaries, particularly females, require
a nearly continuous supply of nectar during summer and fall to survive
and reproduce (Wagner et al. 1997, p. 266). Drought may decrease the
availability of the needed flowering nectar plants (Royer and Marrone
1992, p. 25), so drought may increase an adult's risk of starvation,
reduce breeding success, and increase risks associated with forced
emigration in search of food. Spring droughts may reduce the
availability of violets, so larvae may starve or their growth may be
stunted (Service 2023, p. 106). Therefore, prolonged and extended
dryness associated with drought during any season is a risk factor for
regal fritillary individuals of all life stages. At FTIG in
Pennsylvania, there is generally more moisture than in the West, so the
eastern regal fritillary may be less vulnerable to drought than the
western subspecies.
Climate Change
Specific impacts of climate change on pollinators are not well
understood; however, expected changes forecasted for terrestrial
species and communities include increased ambient temperature, changes
to annual and seasonal precipitation patterns, increased frequency of
extreme events, and changes to hydrologic regimes (Staudinger et al.
2013, p. 466). These climate changes may lead to decreased resource
availability (due to mismatches in temporal and spatial co-
occurrences), decreased availability and suitability of larval habitat
(due to increased flooding or storms), and increased stress from
overheating (due to higher temperatures) (Cohen et al. 2018, p. 226;
Zografou et al. 2021, p. 3283). Based on the known biology and life
history of the species, increasingly warmer temperatures may have
effects such as interruption of winter diapause, which would result in
energy expenditure and potentially reduced first instar survival;
alteration of violet and/or nectar plant phenology, availability, or
abundance, which would impact food resources for
[[Page 63897]]
larval and adult stages; unusual post-winter diapause cold periods,
which would impact larval survival; and direct mortality of regal
fritillaries at all life stages due to excessive heat, drought, or
severe storms. Despite having a wide climatic tolerance based on its
range, the regal fritillary experiences very large fluctuations in
annual numbers--even in populations with stable to increasing trends--
suggesting that extreme weather can negatively impact regal fritillary
abundance (Swengel and Swengel 2017, p. 19). Several populations in
western Iowa, for example, were extirpated during extreme drought in
the mid-2010s, with no perceived recovery as of the summer of 2021
(Hammond 2021, pers. comm.).
Climate variability may lead to shifts in geographic range, as has
been reported for regal fritillary populations in Wisconsin and North
Dakota (Swengel and Swengel 2017, p. 19), as well as decoupling
pollinators from matching both host plant and nectar plant phenologies
(Memmott et al. 2007, p. 712), as demonstrated in other butterfly
species (Forister et al. 2010, pp. 2088-2089; Hickling et al. 2006, p.
452). Spring larval emergence may rely on suitable temperatures, photo
period, or a combination of both, leading to larvae emerging when
violets are older and less palatable. Drier summers could force regal
fritillaries to leave otherwise suitable habitat in search of nectar
sources. Other potential effects from climate change include increased
flooding and storm events, which may directly reduce available larval
habitat suitability (e.g., violet abundance) (Goulson et al. 2015, p.
4). Finally, effects from climate change may increase stress on regal
fritillaries in the future, further compounding pressures from other
factors, including pathogens, nonnative species, and habitat loss
(Goulson et al. 2015, pp. 4-5; Kerr et al. 2015, pp. 178-179; Williams
and Osborne 2009, p. 371).
Summary of Risk Factors for the Eastern and Western Regal Fritillary
Our analysis of the past, current, and future influences on the
needs of the eastern regal fritillary for long-term viability revealed
that invasive plants, woody encroachment, and periodic disturbances
from fire or other activities pose the greatest impact on the eastern
subspecies' current and future viability. Drought and associated
effects of climate change may also influence the viability of the
eastern regal fritillary. For the western regal fritillary, grassland
conversion, primarily due to agriculture; herbicides that are applied
broadly (often aerially); drought; invasives grasses and woody
vegetation; incompatible periodic disturbances from fire, haying, and
mowing; and climate change factors pose the greatest impact on the
western subspecies' current and future viability.
Conservation Efforts and Regulatory Mechanisms
The State of Pennsylvania does not consider invertebrates for its
State threatened and endangered species programs, so does not confer
State-level protections to the eastern regal fritillary. A variety of
conservation efforts have been and are implemented to benefit the
eastern regal fritillary at FTIG. Since 2011, a regal fritillary
captive-rearing program has attempted to reintroduce the eastern regal
fritillary into suitable habitats off FTIG, although the attempts to
establish a population have not yet been successful (Service 2023, p.
113). The INRMP, developed under the Sikes Act, helps guide
conservation objectives and activities at FTIG specifically for the
eastern regal fritillary, including increasing or maintaining
population levels, nectar sources, and larval host plants. Conservation
actions include extensive seasonal monitoring; habitat management using
burning, mowing, and brush removal; and reintroduction efforts.
Additionally, FTIG completed a candidate conservation agreement (CCA)
to append to the INRMP that helps formally document regal fritillary
butterfly conservation intentions at the military installation (FITG
and Service 2024, entire). These conservation efforts have helped
maintain grassland habitats at FTIG for the eastern subspecies.
However, these conservation actions in the INRMP and draft CCA are not
regulatory or binding and could stop with changing funding or
priorities (PADMVA 2021, pp. 20, 31; Swartz 2022, pers. comm; FITG and
Service 2024, entire). As a result, there are no binding and
enforceable regulatory mechanisms that address threats to the eastern
regal fritillary.
The States of Indiana and Wisconsin have assigned the western regal
fritillary State-level protections as an endangered species and the
State of Illinois recognizes the species as a threatened species
(Service 2023, p. 179). The States of Iowa, Minnesota and Wyoming
identify the western regal fritillary as a species of concern (Service
2023, p. 179. These designations may allow State agencies to develop
programs to manage and conserve nongame and endangered species, but
they do not provide binding and enforceable regulatory mechanisms that
may reduce threats to the western regal fritillary. Additionally,
conservation measures and actions may occur locally in many areas to
benefit the western regal fritillary, but most are likely to be
voluntary and may not be able to ameliorate or mitigate the identified
threats to the species (Service 2023, pp. 116-117). These actions often
depend on limited sources of funding and may not necessarily conducted
with the needs and life history of the regal fritillary in mind and may
or may not be beneficial to the subspecies (Service 2023, pp. 116-117).
Appropriate haying, grazing, and burning are generally known to be
beneficial to regal fritillaries by promoting native grassland
habitats, and these actions do occur under all types of land ownership.
However, land use activities conducted without knowledge or
consideration for the subspecies' life-history and habitat needs can be
detrimental to individuals and populations, particularly on small,
isolated habitat patches. Additionally, activities are not typically
conducted in a coordinated manner among landowners or on a scale large
enough to improve the resiliency, redundancy, or representation of the
western subspecies.
Current Condition of the Eastern Regal Fritillary
To evaluate resiliency for the eastern regal fritillary, we
evaluated the current condition of several habitat factors (native
grasslands, riparian and wetland areas, ambient temperature,
precipitation) and two demographic factors (population trend and
abundance) (Service 2023, pp. 120-131). Currently, the eastern regal
fritillary is found in one population, and based on our evaluation of
the habitat and demographic factors, that single population currently
has low resiliency and provides the subspecies' redundancy and
representation. The single population is found on FTIG military base in
Pennsylvania, where ongoing management activities to benefit the
subspecies are conducted through an INRMP on approximately 457 acres
(185 hectares). These management activities have helped maintain
grassland habitats for the eastern regal fritillary, such that many of
the available habitats are in good condition. FITG has monitored the
eastern regal fritillary on the military base since 1992 (Ferster 2005,
p. 8). The population peaked in 2014 with approximately 5,400
individuals, but declined starting in 2017 to approximately 800
individuals, and the population size has never rebounded to its high
numbers from 2014 (Swartz 2022, pers. comm.; Service 2023, p. 64). As a
result, the abundance and growth trend are currently both in very low
[[Page 63898]]
condition, so the eastern subspecies has low resiliency (Service 2023,
pp. 123, 126-128). Additionally, military activities and periodic
disturbance activities such as fire, which can benefit the eastern
subspecies by reducing woody encroachment, may also present a risk to
the subspecies if they are discontinued or if they are too frequent,
intense, or catastrophic. Active military exercises and other
activities occur without consideration of the subspecies elsewhere in
grassland habitats at FTIG. The eastern subspecies' resiliency and
redundancy are limited by the condition of the subspecies' small,
narrowly distributed habitats and depend on the reduction of its
primary threat, woody encroachment, through management and other
voluntary activities. The eastern subspecies is different genetically
and morphologically than the western subspecies, and the east
representative unit provides a unique, more mesic, ecological type. The
eastern regal fritillary's small population size, narrow distribution,
and limited ecological and genetic diversity indicate that the eastern
subspecies is currently vulnerable to stochastic events, catastrophes,
and environmental change.
Current Condition of the Western Regal Fritillary
To evaluate resiliency for the western regal fritillary, we
evaluated the current condition of several habitat factors (native
grasslands, riparian and wetland areas, ambient temperature,
precipitation) and two demographic factors (population trend and
abundance) (Service 2023, pp. 120-131). Currently, the western
subspecies has 21 populations, or analytical units in the SSA,
distributed across 3 representation units, which feature a diversity of
climates, habitats, and genetics. Based on our evaluation of the
habitat and demographic factors, of the 21 populations, 3 currently
have high resiliency, 7 have medium resiliency, 10 have low resiliency,
and 1 is currently functionally extirpated with no resiliency, although
it supports habitats and has recent observations (Service 2023, pp. 16,
124-126). Populations with high resiliency have better habitat and
demographic conditions than populations with medium or low resiliency,
so are better able to withstand stochastic events. Populations with
medium resiliency are about as likely as not to withstand a stochastic
event, those with low resiliency are less likely to withstand a
stochastic event, and those with no resiliency are considered
functionally extirpated, so unlikely to withstand a stochastic event.
The three populations with high resiliency are in the Northern and
Central Great Plains representation units, and no populations currently
have very high or very low resiliency (Service 2023, pp. 16, 128). All
the populations in the Midwest representation units currently have low
resiliency because of generally poor habitat conditions following the
conversion of these areas to agriculture and other development.
Additionally, populations in the Midwest exhibit relatively less
genetic diversity than those in the Northern Great Plains or Central
Great Plains, an indication of their fragmentation and isolation
(Service 2023, pp. 21, 129). However, across the entire Northern and
Central Great Plains representation units, based on genetics, the
western regal fritillary is considered one, large population with high
gene flow over hundreds of kilometers (Williams et al. 2003, pp. 13,
14). The 21 populations are distributed across portions of 14 States.
As a result, the western subspecies currently has levels of resiliency,
redundancy, and representation that make it less vulnerable to
extinction.
Future Conditions
As part of the SSA, we developed three future condition scenarios
to capture the range of uncertainties regarding future threats to and
the projected responses of the eastern and western subspecies of regal
fritillary. Our scenarios included a continuation scenario, which
incorporated the current risk factors continuing on the same trajectory
as they are now. We also evaluated two future scenarios that
incorporated varying levels of increasing risk factors with elevated
negative effects on populations of the eastern and western subspecies.
However, because we determined that the current condition of the
eastern subspecies is consistent with an endangered subspecies (see
Eastern Subspecies: Determination of Status, below), we are not
presenting the results of our future conditions analysis for the
eastern subspecies in this proposed rule. Please refer to the SSA
report (Service 2023, pp. 132-152) for the full analysis of future
conditions for both subspecies.
We projected the future condition of the western subspecies of
regal fritillary under three plausible future scenarios across the next
50 years, to approximately 2075. This 50-year timeframe for our future
projections accounts for approximately 50 annual regal fritillary
generations and is an adequate time period to assess the response of
populations to stressors and conservation efforts, given that the
historical range of the eastern subspecies contracted to its current
distribution within approximately 50 years. It is also a time period
for which we can reasonably project climate conditions based on the
best available climate models across the range of the western
subspecies.
The future scenarios described in the SSA report represent three
possible future conditions based on projected climate conditions and
plausible states of the threats for the western regal fritillary, as
summarized in Risk Factors for the Eastern and Western Subspecies,
above. The future scenarios project the threats into the future and
consider the impacts those threats could have on the viability of the
western subspecies. We apply the concepts of resiliency, redundancy,
and representation to the future scenarios to describe the range of
plausible future conditions of the western subspecies. Uncertainty is
inherent in any projection of future condition, so we must consider
plausible scenarios to make our determinations. When assessing the
future, viability is not a specific state, but rather a continuous
measure of the likelihood that the subspecies will sustain populations
over time.
We included climate change impacts in our future scenarios as a
factor that would add to the negative effects of the primary threats to
the western subspecies and its habitat. Climate change is expected to
increase ambient temperatures, reduce precipitation, and increase the
frequency and duration of drought across the overall range of the
western subspecies. Warmer ambient temperatures may interrupt winter
diapause, which would result in energy expenditure and potentially
reduced first instar survival; alter violet and nectar plant phenology,
availability, or abundance, which would impact food resources for
larvae and adults; result in unusual post-winter diapause cold periods,
which would impact larval survival; and direct mortality of regal
fritillaries at all life stages due to excessive heat, drought, or
severe storms. Increased frequency and duration of drought may reduce
the availability of violets and nectar sources. We used the best
available climate data and models, including representative
concentration pathways (RCPs) 4.5 and 8.5 and underlying temperature
and precipitation models, to project the plausible outcomes for these
factors, which were incorporated into our three future scenarios
(Service 2023, pp. 133-136, 141-143). We summarize the results of our
future conditions analysis for the western regal fritillary below.
[[Page 63899]]
Our future scenarios analysis for the western regal fritillary
revealed that in 50 years, stressors will increase at their current
rates of increase, or will increase moderately or significantly more
than their current rates of increase. When stressors continue at their
current rates, we projected that grassland habitats will continue to
become smaller, more fragmented, and isolated, such that resiliency
declines for at least four of the populations in 50 years (Service
2023, pp. 141-152). Although the number, distribution, and diversity of
western subspecies populations decline only slightly under this future
scenario, the scenario still represents increased risk for the western
subspecies with the declines in resiliency. With a moderate future
increase in stressors, the quality and quantity of habitats decline
further such that resiliency declines for up to 11 populations, with
drops from medium to low resiliency, and some to very low resiliency
(Service 2023, pp. 141-152). Finally, with the most significant
projected increase in stressors, 10 of the 21 populations lose
resiliency and become extirpated, 7 populations have very low
resiliency, 1 population has low resiliency, and only 3 have medium
resiliency (Service 2023, pp. 141-152). This future scenario represents
a large decline in resiliency, redundancy, and representation for the
western subspecies in 50 years, with a corresponding decline in
viability. Across all of our plausible future scenarios, our analysis
revealed that the western regal fritillary is at a greater risk of
extinction in the future.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but the degree to which the factors collectively influence
risk to the entire species, our assessment integrates the cumulative
effects of the factors and replaces a standalone cumulative-effects
analysis.
Determination of Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of an endangered
species or a threatened species because of any of the following
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
Status Throughout All of Its Range
After evaluating threats to the eastern and western regal
fritillary and assessing the cumulative effect of the threats under the
Act's section 4(a)(1) factors, we found that both subspecies have
declined in overall abundance and distribution. Historically,
populations of the regal fritillary functioned on a vast,
metapopulation scale and were abundant and broadly distributed,
particularly in the Midwest and Great Plains. Millions of individuals
likely occupied the North American prairies prior to establishment of
European agriculture in the 1800s (Hammond and McCorkle 1983(84), p.
219). Natural disturbance processes including climate, grazing, and
fire maintained the open grassland habitats, and there were enough
violet and nectar components for the regal fritillary. This vast range
may have facilitated an eastward range expansion, perhaps via coastal
grasslands, where the regal fritillary opportunistically moved into
inland habitats created and maintained by human activities (Service
2023, p. 131).
Today, grassland patches of adequate size, diversity, and
connectivity are significantly reduced, both in number and proximity,
interrupting the landscape-level scales at which the regal fritillary
historically functioned. Accessibility to suitable habitats has become
increasingly restrictive for the eastern and western regal fritillary,
as many remaining suitable grassland patches are small and isolated,
primarily the result of conversion in the West and woody encroachment
in the East. The eastern subspecies is extirpated from nearly every
formerly known occupied eastern location and is confined to one small
population that is extremely vulnerable to environmental and
demographic stochasticity. For the western subspecies, a small
fraction, less than one percent, of the historically vast tallgrass
prairies of the Midwest remains today, mostly as grassland remnants
that are severely fragmented and isolated (Samson and Knopf 1994, p.
418, Service 2023, p. 97). Conditions at the westernmost extent of the
western subspecies' overall range are currently not as severe, as large
mixed-grass prairies remain, but much of these grasslands have been or
could be converted to agriculture and other development. In the future,
the climate in the West is projected to be drier and warmer, and
important resource needs, such as violets and native grasses, may
become limited. Without large, intact, contiguous grasslands,
dispersals of individuals from occupied habitats are often already dead
ends, as individuals move into a matrix that may be composed of
unsuitable agricultural fields where they are unable to find the
resources they need to survive and establish the next annual
generation. For both the eastern and western subspecies, the risk of
genetic collapses increases without regular successful dispersal
events, and the eastern regal fritillary has already experienced
restricted gene flow. The western regal fritillary has reduced genetic
diversity in the Midwest. Natural periodic disturbances that
historically maintained the shifting mosaic of habitats on the
landscape scale have been replaced with permanent land use changes and
land use management regimes that, when applied inappropriately, have
reduced or eliminated regal fritillary populations. As a result, both
subspecies are increasingly vulnerable to stochastic events and
synergistic processes that have significantly greater potential to
cause population extirpations that may outpace recolonization rates.
Eastern Subspecies: Status Throughout All of Its Range
The eastern regal fritillary has declined significantly in overall
distribution and abundance since the 1930s. Once broadly distributed
across the eastern United States, the eastern subspecies is now found
only in one population on approximately 457 acres (185 hectares) of
remnant grasslands on FTIG in Pennsylvania. Due to the small size of
the occupied habitats and the single population, the eastern regal
fritillary currently has low resiliency, limited redundancy, and
reduced ecological and genetic diversity (representation). As a result,
the eastern subspecies is vulnerable to stochastic and catastrophic
events, such as hot and dry summers, long and cold winters, and
destructive fires. The eastern
[[Page 63900]]
subspecies' low level of resiliency, coupled with its limited
redundancy and representation and ongoing and immediate threats
currently results in a high risk of extinction for the eastern regal
fritillary.
The remaining eastern subspecies' grassland habitats at FTIG depend
on the ongoing reduction of woody encroachment through active
management. These activities are critical to the viability of the
eastern regal fritillary and have helped ensure that the eastern
subspecies remains in this area in contrast to its historical
extirpation throughout much of its overall range. Active management at
FTIG, whether intentional or unintentional, has reduced and continues
to reduce habitat loss and fragmentation from woody encroachment, such
that FTIG is now the lone site where the eastern subspecies is still
found. Although conservation activities at FTIG are ongoing and have
benefited the eastern subspecies by maintaining grassland habitats,
they are implemented only in specific areas and could stop or change at
any time depending on funding and priorities, thus increasing the
subspecies' vulnerability. Military activities and periodic disturbance
activities such as fire, which can benefit the eastern subspecies by
reducing woody encroachment, may also present a risk to the subspecies
if they are discontinued or if they are too frequent, intense, or
catastrophic. As a result, the eastern regal fritillary is vulnerable
to extinction, not only because of its limited abundance, distribution,
and diversity, but also by its complete reliance on important and
effective land management activities that are not guaranteed to
continue.
Our analysis of the eastern subspecies' current condition, as well
as the conservation efforts discussed above, show that the eastern
regal fritillary is in danger of extinction throughout all of its range
due to the severity and immediacy of threats currently impacting its
single population (see Risk Factors for the Eastern and Western
Subspecies, above). The single population is isolated, has limited
potential for natural recolonization, and has a high risk of
extirpation from stochastic and catastrophic events, so the risk of
extinction for the eastern regal fritillary is high; therefore, the
species meets the definition of an endangered species and is not a
threatened species.
Eastern Subspecies: Status Throughout a Significant Portion of Its
Range
Under the Act and our implementing regulations, a subspecies may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. We have determined that the eastern subspecies of regal
fritillary is in danger of extinction throughout all of its range and
accordingly did not undertake an analysis of any significant portion of
its range. Because the eastern subspecies of regal fritillary warrants
listing as endangered throughout all of its range, our determination
does not conflict with the decision in Center for Biological Diversity
v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), which vacated
the provision of the Final Policy on Interpretation of the Phrase
``Significant Portion of Its Range'' in the Endangered Species Act's
Definitions of ``Endangered Species'' and ``Threatened Species''
(hereafter ``Final Policy''; 79 FR 37578, July 1, 2014) that provided
that if the Service had determined that a species was threatened
throughout all of its range, the Service would not analyze whether the
species was endangered in a significant portion of its range.
Eastern Subspecies: Determination of Status
Our review of the best available scientific and commercial
information indicates that the eastern regal fritillary meets the Act's
definition of an endangered species. Therefore, we propose to list the
eastern regal fritillary as an endangered species in accordance with
sections 3(6) and 4(a)(1) of the Act.
Western Subspecies: Status Throughout All of Its Range
Currently, the western regal fritillary has 21 populations
distributed across portions of 14 States and 3 representation units,
which feature a diversity of climates, habitats, and genetics. Three
populations have high resiliency, 7 have medium resiliency, 10 have low
resiliency, and 1 has no resiliency. All the populations in the Midwest
representative unit currently have low resiliency following the
conversion of grasslands to agriculture and development. Populations in
North and South Dakota, eastern Montana, eastern Wyoming, the Sandhills
in west-central Nebraska, and the Flint Hills in eastern Kansas,
currently have high resiliency, because of the high-quality condition
of their habitat and demographic factors. Genetic exchange occurs
across much of the Northern and Central Great Plains, indicating that
enough suitable habitats currently remain such that dispersals and
recolonizations help maintain the landscape-level metapopulation
structure for the western regal fritillary.
We considered whether the western regal fritillary is presently in
danger of extinction throughout all of its range and determined that it
is not. The current conditions as assessed in our SSA report show that
there are three populations with high resiliency and seven populations
with medium resiliency distributed broadly across two large
representation units. There are an additional eight populations in the
Midwest representation unit with low resiliency and reduced ecological
and genetic diversity, so although this area contributes less to the
overall viability of the western subspecies, it still provides some
resiliency and redundancy for the subspecies. Across all three
representation units, there are multiple, sufficiently resilient
populations distributed across a large, ecologically diverse area. As a
result, the western regal fritillary currently has sufficient
resiliency, redundancy, and representation to withstand stochastic and
catastrophic events and environmental change. Although threats are
currently acting on the western subspecies and many of those threats
are expected to continue into the future, we did not find that the
subspecies is currently in danger of extinction throughout all of its
range.
In the future, as stressors, such as conversion to agriculture,
invasive plants, and drought, continue to reduce the quality and
quantity of native grasslands, we expect western regal fritillary
populations to be at an increased risk of extirpation. We project the
least amount of decline in the western subspecies' viability if the
stressors continue at their current rates and the greatest decline if
stressors increase significantly. Across all of our future projections,
fewer populations will have high and medium resiliency, with increases
in the number and distribution of populations with low, very low, or no
resiliency (extirpation). With increasing threats in the future,
grassland habitats will become smaller, more isolated, and more
fragmented, and individuals will be less able to disperse and
recolonize, so we project overall declines in the resiliency,
redundancy, and representation of the western subspecies in 50 years.
As a result, we expect that, in the foreseeable future, the western
regal fritillary will be at an increased risk of extirpation.
According to our assessment of plausible future scenarios in the
SSA
[[Page 63901]]
report, the western subspecies is likely to become an endangered
subspecies within the foreseeable future of 50 years throughout all of
its range. Our future scenarios help address future uncertainty by
describing plausible outcomes for the primary risk factors to the
western subspecies. Fifty years encompasses 50 annual generations of
the western regal fritillary and a time period when stressors are
reasonably expected to change and we can make reasonably reliable
predictions about the threats and the western regal fritillary's
responses to those threats. In the foreseeable future, we expect more
grasslands to be converted to agriculture and development and to become
drier, as ambient temperatures increase and droughts increase in
intensity, magnitude, and frequency. We expect increases in invasive
plants, broad herbicide application, and periodic disturbances. As a
result, we expect additional reductions in the size and distribution of
large, intact blocks of grasslands and the underlying resources needed
by the western regal fritillary, including violets, bunch grasses, and
nectar sources. Violets and nectar sources become more scarce as
herbicides are broadly applied to reduce forbs in the remaining tracts
of grasslands. Climate change could further exacerbate the effects of
drought. As habitats become smaller and more isolated, metapopulation
processes could fail, with subsequent declines in the resiliency of the
remaining populations of the western subspecies, as well as the
redundancy and representation of the subspecies, and we expect the
western regal fritillary to become more vulnerable to stochastic and
catastrophic events and environmental change. Therefore, the western
regal fritillary is likely to become an endangered subspecies within
the foreseeable future throughout all of its range.
After evaluating threats to the western subspecies and assessing
the cumulative effect of the threats under the Act's section 4(a)(1)
factors, we find that the viability of the western subspecies will
continue to decline in the next 50 years so that the subspecies is
likely to become in danger of extinction within the foreseeable future
throughout all of its range due to the projected loss and fragmentation
of grassland habitats from conversion to agriculture and development,
drought, invasive and woody plants, the broad application of
herbicides, and the synergistic effects of these threats with climate
change. Thus, after assessing the best available information, we
conclude that the western subspecies of regal fritillary is not
currently in danger of extinction but is likely to become in danger of
extinction within the foreseeable future throughout all of its range.
Western Subspecies: Status Throughout a Significant Portion of Its
Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of the
Final Policy on Interpretation of the Phrase ``Significant Portion of
Its Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (hereafter ``Final Policy''; 79 FR
37578, July 1, 2014) that provided if the Services determine that a
species is threatened throughout all of its range, the Services will
not analyze whether the species is endangered in a significant portion
of its range.
Therefore, we proceed to evaluating whether the western subspecies
is endangered in a significant portion of its range--that is, whether
there is any portion of the western subspecies' range for which both
(1) the portion is significant; and (2) the subspecies is in danger of
extinction in that portion. Depending on the case, it might be more
efficient for us to address the ``significance'' question or the
``status'' question first. We can choose to address either question
first. Regardless of which question we address first, if we reach a
negative answer with respect to the first question that we address, we
do not need to evaluate the other question for that portion of the
subspecies' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the western subspecies' range
where the subspecies is in danger of extinction now (i.e., endangered).
In undertaking this analysis for the western regal fritillary, we
choose to address the status question first--we consider information
pertaining to the geographic distribution of the western subspecies and
the threats that it faces to identify portions of the range where the
western regal fritillary may be endangered.
We evaluated the range of the western regal fritillary to determine
if the subspecies is in danger of extinction now in any portion of its
range. The range of a subspecies can theoretically be divided into
portions in an infinite number of ways. We focused our analysis on
portions of the western subspecies' range that may be in danger of
extinction (i.e., meet the Act's definition of an endangered species).
For the western regal fritillary, we considered whether the threats or
their effects on the subspecies are greater in any biologically
meaningful portion of the subspecies' range than in other portions,
such that the subspecies is in danger of extinction now in that
portion.
We examined the range of the western subspecies for biologically
meaningful portions that may be at a higher risk of extirpation, as
reflected by current resiliency of the 21 populations. Currently, 10 of
the 21 populations have low resiliency, so they are at a greater risk
of extirpation than the populations with more resiliency. These 10
populations are geographically concentrated along the eastern edge of
the western subspecies' overall range. Eight of these populations with
low resiliency make up the Midwest representation unit, which was
historically dominated by vast tallgrass prairies, but today is an
agriculturally dominated landscape with prairie remnants existing
primarily as small, isolated patches. The other two populations
currently with low resiliency, the Lake Agassiz Plain and Ozark
Highlands populations, immediately adjoin the Midwest representation
unit, so were included in our potential portion.
We then considered whether this biologically meaningful portion of
10 populations with low resiliency may be at a higher risk of
extirpation. We examined the following threats, for the reasons
described above: grassland conversion, invasive plants, broad
application of herbicides, periodic disturbances, drought, climate
change, and cumulative effects. We concluded that although the
populations in this portion have low resiliency, largely the result of
low and very low conditions of the large, contiguous blocks of native
grasslands, reproduction and recolonization still occurs with abundance
and growth trends ranging from low to medium conditions (Service 2023,
p. 125). Additionally, the portion has sufficient redundancy and
representation across the 10 populations such that it is not currently
in danger of extinction. The 10 populations cover a wide geographic
area that spans portions of 6 States across a variety of climatic and
habitat types from north-to-south and east-to-west, such that there is
no stochastic or catastrophic event that would extirpate the portion in
the near term. Therefore, we conclude that the portion does not have a
different status from the remainder of the western subspecies' range.
Because we
[[Page 63902]]
determined that this portion does not have a different status, we did
not need to assess its potential significance. As a result, we found no
portion of the western subspecies' range where the biological condition
of the subspecies differs from its condition elsewhere in its range
such that the status of the subspecies in that portion differs from any
other portion of the subspecies' range.
Therefore, no portion of the western subspecies' range provides a
basis for determining that the subspecies is in danger of extinction in
a significant portion of its range, and we determine that the western
regal fritillary is likely to become in danger of extinction within the
foreseeable future throughout all of its range. This does not conflict
with the courts' holdings in Desert Survivors v. U.S. Department of the
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for
Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz.
2017) because, in reaching this conclusion, we did not apply the
aspects of the Final Policy, including the definition of
``significant'' that those court decisions held to be invalid.
Western Subspecies: Determination of Status
Our review of the best available scientific and commercial
information indicates that the western subspecies of regal fritillary
meets the Act's definition of a threatened species. Therefore, we
propose to list the western subspecies of regal fritillary as a
threatened species in accordance with sections 3(20) and 4(a)(1) of the
Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>), or from our Pennsylvania or South Dakota
Ecological Services Field Offices (see FOR FURTHER INFORMATION
CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their ranges may occur primarily or solely on
non-Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If these subspecies are listed, funding for recovery actions will
be available from a variety of sources, including Federal budgets,
State programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of Pennsylvania would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the eastern regal fritillary. The States
of Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Minnesota,
Missouri, Nebraska, North Dakota, Oklahoma, South Dakota, Wisconsin,
and Wyoming would be eligible for Federal funds to implement management
actions that promote the protection or recovery of the western regal
fritillary. Information on our grant programs that are available to aid
species recovery can be found at: <a href="https://www.fws.gov/service/financial-assistance">https://www.fws.gov/service/financial-assistance</a>.
Although the eastern and western regal fritillary are only proposed
for listing under the Act at this time, please let us know if you are
interested in participating in recovery efforts for these subspecies.
Additionally, we invite you to submit any new information on these
subspecies whenever it becomes available and any information you may
have for recovery planning purposes (see FOR FURTHER INFORMATION
CONTACT).
Section 7 of the Act is titled, ``Interagency Cooperation'' and
mandates all Federal action agencies to use their existing authorities
to further the conservation purposes of the Act and to ensure that
their actions are not likely to jeopardize the continued existence of
listed species or adversely modify critical habitat. Regulations
implementing section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (see 50 CFR 402.14(a)), unless the
Service concurs in writing that the action is not likely to adversely
affect listed species or critical
[[Page 63903]]
habitat. At the end of a formal consultation, the Service issues a
biological opinion containing its determination of whether the Federal
action is likely to result in jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any action which is likely to jeopardize
the continued existence of any species proposed to be listed under the
Act or result in the destruction or adverse modification of critical
habitat proposed to be designated for such species. Although the
conference procedures are required only when an action is likely to
result in jeopardy or adverse modification, action agencies may
voluntarily confer with the Service on actions that may affect species
proposed for listing or critical habitat proposed to be designated. In
the event that the subject species is listed or the relevant critical
habitat is designated, a conference opinion may be adopted as a
biological opinion and serve as compliance with section 7(a)(2) of the
Act.
Examples of discretionary actions for the eastern and western regal
fritillary that may be subject to conference and consultation
procedures under section 7 are land management or other landscape-
altering activities on Federal lands administered by the Natural
Resources Conservation Service, the Bureau of Land Management, the
National Park Service, and the Department of Defense, as well as
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 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, authorized, or carried out by a Federal
agency--do not require section 7 consultation. Federal agencies should
coordinate with the local Service Field Office (see FOR FURTHER
INFORMATION CONTACT) with any specific questions on section 7
consultation and conference requirements.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, and the Service's
implementing regulations codified at 50 CFR 17.21, make it illegal for
any person subject to the jurisdiction of the United States to commit,
to attempt to commit, to solicit another to commit or to cause to be
committed any of the following: (1) import endangered wildlife into, or
export from, the United States; (2) take (which includes harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct) endangered wildlife within the
United States or on the high seas; (3) possess, sell, deliver, carry,
transport, or ship, by any means whatsoever, any such wildlife that has
been taken illegally; (4) deliver, receive, carry, transport, or ship
in interstate or foreign commerce in the course of commercial activity;
or (5) sell or offer for sale in interstate or foreign commerce.
Certain exceptions to these prohibitions apply to employees or agents
of the Service, the National Marine Fisheries Service, other Federal
land management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits for endangered wildlife are codified at 50 CFR 17.22.
With regard to endangered wildlife, a permit may be issued for
scientific purposes, for enhancing the propagation or survival of the
species, or for take incidental to otherwise lawful activities. The
statute also contains certain exemptions from the prohibitions, which
are found in sections 9 and 10 of the Act.
II. Protective Regulations Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. Conservation is defined in the Act to
mean the use of all methods and procedures which are necessary to bring
any endangered species or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary.
Additionally, the second sentence of section 4(d) of the Act states
that the Secretary may by regulation prohibit with respect to any
threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
With these two sentences in section 4(d), Congress delegated broad
authority to the Secretary to determine what protections would be
necessary and advisable to provide for the conservation of threatened
species, and even broader authority to put in place any of the section
9 prohibitions for a given species.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this species' proposed protective regulations
under section 4(d) of the Act are one of the many tools that we would
use to promote the conservation of the western regal fritillary.
Nothing in 4(d) rules change in any way the recovery planning
provisions of section 4(f) of the Act, the consultation requirements
under section 7 of the Act, or the ability of the Service to enter into
partnerships for the management and protection of the western regal
fritillary. As mentioned previously in Available Conservation Measures,
section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they authorize, fund, 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, even before the listing of any species or the designation of
its critical habitat is finalized, section 7(a)(4) of the Act requires
Federal agencies to confer with the Service on any agency action which
is likely to jeopardize the continued existence of any species proposed
to be listed under the Act or result in the destruction or adverse
modification of critical habitat
[[Page 63904]]
proposed to be designated for such species. These requirements are the
same for a threatened species regardless of what is included in its
4(d) rule.
Section 7 consultation is required for Federal actions that ``may
affect'' a listed species regardless of whether take caused by the
activity is prohibited or excepted by a 4(d) rule (``blanket rule'' or
species-specific 4(d) rule). A 4(d) rule does not change the process
and criteria for informal or formal consultations and does not alter
the analytical process used for biological opinions or concurrence
letters. For example, as with an endangered species, if a Federal
agency determines that an action is ``not likely to adversely affect''
a threatened species, this will require the Service's written
concurrence (50 CFR 402.13(c)). Similarly, if a Federal agency
determinates that an action is ``likely to adversely affect'' a
threatened species, the action will require formal consultation with
the Service and the formulation of a biological opinion (50 CFR
402.14(a)). Because consultation obligations and processes are
unaffected by 4(d) rules, we may consider developing tools to
streamline future intra-Service and inter-Agency consultations for
actions that result in forms of take that are not prohibited by the
4(d) rule (but that still require consultation). These tools may
include consultation guidance, Information for Planning and
Consultation effects determination keys, template language for
biological opinions, or programmatic consultations.
Provisions of the Proposed 4(d) Rule for the Western Regal Fritillary
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the
western subspecies' conservation needs. As discussed previously in
Summary of Biological Status and Threats, we have concluded that the
western regal fritillary is likely to become in danger of extinction
within the foreseeable future primarily due to the loss and
fragmentation of grasslands through conversion by agriculture and
development, the broadcast application of herbicides, invasive and
woody plants, periodic disturbances, drought, and the synergistic
effects of climate change. Section 4(d) requires the Secretary to issue
such regulations as she deems necessary and advisable to provide for
the conservation of each threatened species and authorizes the
Secretary to include among those protective regulations any of the
prohibitions that section 9(a)(1) of the Act prescribes for endangered
species. We are not required to make a ``necessary and advisable''
determination when we apply or do not apply specific section 9
prohibitions to a threatened species (In re: Polar Bear Endangered
Species Act Listing and 4(d) Rule Litigation, 818 F. Supp. 2d 214, 228
(D.D.C. 2011) (citing Sweet Home Chapter of Cmtys. for a Great Or. v.
Babbitt, 1 F.3d 1, 8 (D.C. Cir. 1993), rev'd on other grounds, 515 U.S.
687 (1995))). Nevertheless, even though we are not required to make
such a determination, we have chosen to be as transparent as possible
and explain below why we find that, if finalized, the protections,
prohibitions, and exceptions in this proposed rule as a whole satisfy
the requirement in section 4(d) of the Act to issue regulations deemed
necessary and advisable to provide for the conservation of the western
regal fritillary.
The protective regulations we are proposing for the western regal
fritillary incorporate prohibitions from section 9(a)(1) of the Act to
address the threats to the subspecies. The prohibitions of section
9(a)(1) of the Act, and implementing regulations codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to commit, to attempt to commit, to solicit another
to commit or to cause to be committed any of the following acts with
regard to any endangered wildlife: (1) import into, or export from, the
United States; (2) take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect) within the United
States, within the territorial sea of the United States, or on the high
seas; (3) possess, sell, deliver, carry, transport, or ship, by any
means whatsoever, any such wildlife that has been taken illegally; (4)
deliver, receive, carry, transport, or ship in interstate or foreign
commerce, by any means whatsoever and in the course of commercial
activity; or (5) sell or offer for sale in interstate or foreign
commerce. This protective regulation includes all of these prohibitions
because the western regal fritillary is at risk of extinction within
the foreseeable future and putting these prohibitions in place will
help to conserve the subspecies' remaining populations, slow its rate
of decline, and decrease synergistic, negative effects from other
stressors.
In particular, this proposed 4(d) rule would provide for the
conservation of the western regal fritillary by prohibiting the
following activities, unless they fall within specific exceptions or
are otherwise authorized or permitted: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
take would help preserve the subspecies' remaining populations, slow
their rate of decline, and decrease synergistic, negative effects from
other stressors. Therefore, we propose to prohibit take of the western
regal fritillary, except for take resulting from those actions and
activities specifically excepted by the 4(d) rule.
Exceptions to the prohibition on take would include all of the
general exceptions to the prohibition on take of endangered wildlife,
as set forth in 50 CFR 17.21 and additional exceptions, as described
below. Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise-prohibited activities, including those described above. The
regulations that govern permits for threatened wildlife state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species. These include permits
issued for the following purposes: for scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act (50 CFR
17.32). The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
In addition, to further the conservation of the species, any
employee or agent of the Service, any other Federal land management
agency, the National Marine Fisheries Service, a State conservation
agency, or a federally recognized Tribe, who is designated by their
agency or Tribe for such purposes, may, when acting in the course of
their official duties, take threatened wildlife without a permit if
such action is necessary to: (i) Aid a sick, injured, or orphaned
specimen; or (ii) Dispose of a dead specimen; or (iii) Salvage a dead
specimen that may be useful for scientific study; or (iv) Remove
specimens that constitute a demonstrable but nonimmediate threat
[[Page 63905]]
to human safety, provided that the taking is done in a humane manner;
the taking may involve killing or injuring only if it has not been
reasonably possible to eliminate such threat by live capturing and
releasing the specimen unharmed, in an appropriate area.
We recognize the special and unique relationship that we have with
our State natural resource agency partners in contributing to
conservation of listed species. State agencies often possess scientific
data and valuable expertise on the status and distribution of
endangered, threatened, and candidate species of wildlife and plants.
State agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, would be able to conduct
activities designed to conserve the western regal fritillary that may
result in otherwise prohibited take without additional authorization.
The proposed 4(d) rule would also provide for the conservation of
the western subspecies by excepting otherwise prohibited take
associated with several activities either intended to incentivize
conservation actions or that, while they may have some minimal level of
take of the western regal fritillary, are not expected to rise to the
level that would have a negative impact (i.e., would have only de
minimis impacts) on the western subspecies' conservation. We propose to
except incidental take associated with routine livestock operations,
livestock grazing, noxious weed control, annual haying and mowing,
prescribed fire, brush control, and mowing section line rights-of-way
and recreational trails; we describe each in more detail below. These
activities are expected to have negligible impacts to the western regal
fritillary and its habitat.
(1) Routine Livestock Operations
Incidental take caused by the routine livestock ranching activities
that are described below and that are implemented on private, State, or
Tribal lands or on other lands not under Federal jurisdiction (e.g.,
lands owned by county or local governments) would not be prohibited, as
long as those activities are otherwise legal and conducted in
accordance with applicable State, Federal, Tribal, and local laws and
regulations. For the purposes of this proposed 4(d) rule, routine
livestock ranching activities include (as described below) the
construction and maintenance of fences, the gathering and management of
livestock, and the development and maintenance of watering facilities
for livestock.
(a) Fence Construction and Maintenance
Fences are an essential tool for livestock and ranch management. In
addition, the strategic distribution of fencing is also necessary to
implement multicell rotational grazing systems, which may be necessary
to improve grazing management and provide a conservation benefit to the
western regal fritillary's habitat. Therefore, incidental take
associated with the construction and maintenance of fencing to manage
livestock and ranches will be excepted.
(b) Livestock Gathering and Management
The installation and maintenance of corrals, loading chutes, and
other livestock working facilities are critical to ranch operations.
These activities may be carried out with only minimal impacts to the
western regal fritillary. Therefore, incidental take associated with
livestock gathering and management activities will be excepted.
(c) Development and Maintenance of Livestock Watering Facilities
Without a suitable water source in a pasture, livestock ranching is
impossible. The proper distribution of livestock watering sources is
also a prerequisite to implementing improved grazing management via the
use of multicell rotational grazing systems that may be necessary to
conserve western regal fritillary habitat and to provide a conservation
benefit to the subspecies on grazed sites. This activity includes both
the initial development of water sources and their maintenance. Dugout
ponds, for example, typically require a cleanout after 15 to 20 years.
(2) Livestock Grazing
Incidental take of the western regal fritillary that may result
from livestock grazing on private, State, or Tribal land would be
excepted from the take prohibitions of section 9 of the Act. By
excepting take of the western regal fritillary caused by livestock
grazing, we acknowledge the positive role that some ranchers have
played in conserving the western regal fritillary and that grazing can
be compatible with maintaining remaining native grasslands. Grazing and
browsing by livestock may improve and maintain regal fritillary habitat
by removing herbaceous vegetation that shades and competes with violets
and results in earlier successional stages within the grasslands,
contributing to the landscape-level mosaic of habitats used by the
western regal fritillary. Best management practices to make grazing
compatible with regal fritillary conservation may include light-to-
moderate grazing intensities in the late fall and early spring, patch
burn grazing methods to maintain a shifting mosaic of habitats and
prevent woodland encroachment, and avoiding the broadcast spraying of
herbicides across large areas to kill plants that compete with grasses.
Recovery of the western regal fritillary will depend on the protection
and restoration of high-quality habitats supporting violets and nectar
sources on private lands and on public lands that are grazed by private
individuals under lease or other agreements. Therefore, incidental take
associated with livestock grazing on private, State, or Tribal lands,
including light-to-moderate grazing intensities in the late fall and
early spring, and patch burn grazing methods that may help maintain an
annually shifting mosaic of fire and grazing across a landscape to
increase the diversity and structure of vegetation will be excepted.
(3) Noxious Weed Control
State and county laws require landowners to control noxious weeds
on their property, and the timing of control actions is usually
dependent on the growth stage of the weed species. Control of noxious
weeds may also be important to protecting western regal fritillary
habitat because native plant diversity declines when nonnative plant
species invade and become established in prairies (Boettcher et al.
1993, p. 35). Spot spraying, hand pulling, or mechanical treatment of
noxious weeds would be excepted from the take prohibitions and may
occur at any time during the year. Incidental take that occurs as a
result of mowing that is carried out for the purpose of controlling one
or more noxious weed species will also be excepted.
Broadcast application of herbicides, however, may result in
significant deterioration of native plant diversity in prairies (Smart
et al. 2011, p. 184). Therefore, we would not except incidental take of
the western regal fritillary that may result from broadcast spraying of
herbicides, which we define as the application of herbicides, often
aerially or by vehicles, evenly, widely, and indiscriminately across
the entire
[[Page 63906]]
application area, unless the application area is dominated by noxious
weeds.
(4) Haying and Mowing
Haying and mowing of native grasslands can improve western regal
fritillary habitats by removing vegetation that outcompetes violets for
light, nutrients, and water; stimulating the growth of native nectar
sources; and improving the mosaic of diverse successional stages.
Therefore, we will except incidental take associated with annual haying
and mowing in western regal fritillary habitats.
(5) Prescribed Fire
Prescribed fire is a key grassland management tool that can
preserve native grassland habitat by controlling woody encroachment and
introduced species and stimulating growth of native vegetation. When
used with other grassland management techniques and best management
practices, the periodic disturbance caused by prescribed fire helps
maintain suitable regal fritillary habitat on the landscape. We
acknowledge that fire is also a stressor to the western subspecies.
Adverse effects to individuals may occur if burning occurs in occupied
habitats, and local population-level impacts are possible if suitable
occupied habitats are burned extensively without retaining refugia or
if such sites are lacking adjacent proximal occupied habitats that
could serve as recolonization sources. However, these effects can be
controlled to maximize the benefits to the western regal fritillary.
Therefore, we will except incidental take associated with prescribed
fire if the following conditions are met to reduce adverse effects:
(a) Prescribed fire burn units must be established to avoid burning
the majority of suitable habitat at the landscape scale and to allow
for refugia; and
(b) The return interval for prescribed fire on a particular unit is
3 to 5 years.
(6) Brush Control
If allowed to become too dense, woody vegetation can crowd out
native grassland habitat. Consequently, brush control would be excepted
from the take prohibitions and may occur at any time during the year.
Brush control methods may include mechanical means, burning, grazing,
or spot use of herbicides if in compliance with the other excepted
activities in the 4(d) rule. If mechanical means such as brush hogs are
used, the blade must be set to 20 cm (8 in) or higher above the ground.
If herbicides are used, an appropriate systemic herbicide to prevent
regrowth must be directly applied to cut stems. Broadcast spraying in
western regal fritillary habitat would not be excepted because it may
remove all violet and nectar plants for the western subspecies.
(7) Mowing Section Line Rights-of-Way and Recreational Trails
Section line rights-of-way and some recreational trails need to be
mowed several times during the growing season to ensure that snow will
not catch and block vehicle access and to ensure access and safety for
hiking and other intended recreational activities, respectively.
Section line rights-of-way typically have disturbed soil that has been
contoured for a roadway and are likely to contain only small
proportions of western regal fritillary habitat at any affected site.
Recreational trails are travel ways established either through
construction or use that are intended for and passable by at least one
or more of the following: foot traffic, bicycles, in-line skates,
wheelchairs, or cross-country skis. Such trails are typically narrower
than roads. Therefore, impacts to western regal fritillary individuals
and populations are likely to be minimal, and any incidental take that
results from mowing section line rights-of-way and recreational trails
will be excepted.
III. 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.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
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 each Federal action agency 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 designated 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 also 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. Rather, designation requires that, where a landowner
requests Federal agency funding or authorization for an action that may
affect an area designated as critical habitat, the Federal agency
consult with the Service under section 7(a)(2) of the Act. If the
action may affect the listed species itself (such as for occupied
critical habitat), the Federal agency would have already been required
to consult with the Service even absent the designation because of the
requirement to ensure that the action is not likely to jeopardize the
continued existence of the species. Even if the Service were to
conclude after consultation that the proposed activity is likely to
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must 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
[[Page 63907]]
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 data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat).
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.
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 from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; 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) the prohibitions found in section 9 of the Act for the
eastern subspecies or the 4(d) rule for the western subspecies.
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 the 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 those planning efforts calls for a different
outcome.
Critical Habitat Determinability
We have determined that critical habitat is prudent, but not
presently determinable, for both the eastern and western subspecies of
regal fritillary. 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) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``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 have reviewed the available information pertaining to the
biological needs of the regal fritillary and habitat characteristics
where each subspecies is located. Careful assessments of the economic
and environmental impacts that may occur due to a critical habitat
designation are not yet complete, and we are working to acquire the
complex information needed to perform those assessments. At this time,
the information needed to perform the required analysis of the impacts
of the designation is lacking for both subspecies. Therefore, we
conclude that the designation of critical habitat for both the eastern
and western subspecies of regal fritillary is not determinable at this
time. The Act allows the Service an additional year to publish a
critical habitat designation that is not determinable at the time of
listing (16 U.S.C. 1533(b)(6)(C)(ii)).
Required Determinations
Clarity of the Rule
We are required by E.O.s 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.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).
[[Page 63908]]
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), E.O. 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 federally recognized Tribes on a
government-to-government basis. In accordance with Secretaries' 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. The eastern subspecies does not occur on Tribal lands. For
the western subspecies, we solicited information from the Tribes within
the subspecies' range to inform the development of our SSA report, but
we did not receive any responses. We will continue to coordinate with
affected Tribes throughout the listing process, as appropriate.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the South Dakota Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the U.S. Fish and Wildlife Service's Species Assessment Team and the
South Dakota and Pennsylvania Ecological Services Field Offices.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
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.
0
2. In Sec. 17.11, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by adding entries for ``Fritillary, eastern regal''
and ``Fritillary, western regal'' in alphabetical order under INSECTS
to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Insects
* * * * * * *
Fritillary, eastern regal....... Argynnis idalia Wherever found.... E [Federal Register
idalia. citation when
published as a final
rule].
Fritillary, western regal....... Argynnis idalia Wherever found.... T [Federal Register
occidentalis. citation when
published as a final
rule]; 50 CFR
17.47(i).\4d\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.47 by adding paragraph (i) to read as follows:
Sec. 17.47 Special rules--insects.
* * * * *
(i) Western regal fritillary (Argynnis idalia occidentalis). (1)
Prohibitions. The following prohibitions that apply to endangered
wildlife also apply to the western regal fritillary. Except as provided
under paragraph (i)(2) of this section and Sec. Sec. 17.4 and 17.5, it
is unlawful for any person subject to the jurisdiction of the United
States to commit, to attempt to commit, to solicit another to commit,
or cause to be committed, any of the following acts in regard to this
subspecies:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this subspecies, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (c)(4) for
endangered wildlife.
(iii) Take, as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(v) Take incidental to an otherwise lawful activity caused by:
(A) Routine livestock ranching activities on private, State, or
Tribal lands, or any other lands not under Federal jurisdiction,
including:
(1) The construction and maintenance of fences to manage livestock
and ranches;
(2) The installation and maintenance of livestock gathering and
management features, such as corrals, loading chutes, and other
livestock working and ranching facilities; and
(3) The development of new livestock watering sources and
facilities and the maintenance of existing livestock watering
facilities.
(B) Livestock grazing on private, State, or Tribal lands, including
light-to-moderate grazing intensities in the late fall and early
spring, and patch burn grazing methods that may help maintain an
annually shifting mosaic of fire and grazing across a landscape to
increase the diversity and structure of vegetation.
(C) Noxious weed control efforts, including spot spraying, hand
pulling, and mechanical treatments (such as mowing) in all areas.
[[Page 63909]]
(D) Haying and mowing in western regal fritillary habitats.
(E) Prescribed fire that:
(1) Incorporates established burn units to avoid burning a majority
of the western regal fritillary habitat on the landscape and maintains
refugia for the western regal fritillary; and
(2) Operates on 3- to 5-year return intervals for the burn units.
(F) Brush control of woody vegetation, that:
(1) If conducted using mechanical methods, uses blades set at 20
centimeters (8 inches) or more above the ground; and
(2) If conducted using chemical treatments, uses appropriate,
systemic herbicides to prevent regrowth applied directly to cut stems.
(G) Mowing section line rights-of-way and recreation trails.
Gary Frazer,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-16982 Filed 8-5-24; 8:45 am]
BILLING CODE 4333-15-P
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