§ 17.47 - Species-specific rules—insects.

§ 17.47 Species-specific rules—insects.

(a) Cassius blue butterfly (Leptotes cassius theonus), Ceraunus blue butterfly (Hemiargus ceraunus antibubastus), and Nickerbean blue butterfly (Cyclargus ammon).

(1) The provisions of § 17.31(c) apply to these species (cassius blue butterfly, ceraunus blue butterfly, nickerbean blue butterfly), regardless of whether in the wild or in captivity, and also apply to the progeny of any such butterfly.

(2) Any violation of State law will also be a violation of the Act.

(3) Incidental take, that is, take that results from, but is not the purpose of, carrying out an otherwise lawful activity, will not apply to the cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue butterfly.

(4) Collection of the cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue butterfly is prohibited in coastal counties south of Interstate 4 and extending to the boundaries of the State of Florida at the endpoints of Interstate 4 at Tampa and Daytona Beach. Specifically, such activities are prohibited in the following counties: Brevard, Broward, Charlotte, Collier, De Soto, Hillsborough, Indian River, Lee, Manatee, Pinellas, Sarasota, St. Lucie, Martin, Miami-Dade, Monroe, Palm Beach, and Volusia.

(b) Dakota skipper (Hesperia dacotae)—

(1) Which populations of the Dakota skipper are covered by this special rule? This rule covers the distribution of Dakota skipper in the United States.

(2) Prohibitions. Except as noted in paragraph (b)(3) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 apply to the Dakota skipper.

(3) Exemptions from prohibitions. Incidental take of Dakota skipper will not be a violation of section 9 of the Act if it occurs as a result of the following activities (except where explicitly stated otherwise, these activities must be associated with livestock ranching):

(i) Fence construction and maintenance.

(ii) Livestock gathering and management. The installation and maintenance of corrals, loading chutes, and other livestock working facilities must be carefully sited with respect to the location and distribution of important Dakota skipper habitat.

(iii) Development and maintenance of livestock watering facilities.

(iv) Noxious weed control. Incidental take of Dakota skipper that results from spraying of herbicides is not a violation of section 9 of the Act, except such take that results from broadcast spraying, which is the application of herbicides evenly across the entire application area. Incidental take that results from mowing to control one or more noxious weed species would also not be a violation of section 9 of the Act.

(v) Haying. For the purposes of this rule, native haylands do not include lands that had previously been plowed and were then replanted to native or nonnative vegetation, but native haylands do include areas within transportation (e.g., road, highway, railroad) rights-of-ways and corridors where native grasses are mowed for hay. Haying of native haylands no earlier than July 16 (after July 15) would not be a violation of section 9 of the Act. Mowing of replanted grasslands (grasslands replanted on formerly plowed or cultivated lands) or tame haylands or grasslands (planted hayland or grassland comprising primarily nonnative grass species, such as smooth brome (Bromus inermis inermis)) would also not be a violation of section 9 of the Act at any time of the year.

(vi) Mowing section line rights-of-way and recreational trails. Mowing of section line rights-of-way (typically disturbed soil that has been contoured for a roadway) would not be a violation of section 9 of the Act. Mowing of recreational trails (travelways established either through construction or use that are intended for and passable by foot traffic, bicycles, in-line skates, wheelchairs, or cross-country skis) would not be a violation of section 9 of the Act, regardless of whether the trails are associated with livestock ranching.

(vii) Livestock (cattle, bison, or horse) grazing on private, State, or tribal land.

(c) Western glacier stonefly (Zapada glacier) and meltwater lednian stonefly (Lednia tumana)—

(1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to western glacier stonefly and meltwater lednian stonefly except as provided under paragraph (c)(2) of this section and §§ 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 these species:

(i) Import or export, as set forth at § 17.21(b).

(ii) Take, as set forth at § 17.21(c)(1).

(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1).

(iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e).

(v) Sale or offer for sale, as set forth at § 17.21(f).

(2) Exception s from prohibitions. In regard to this species, you may:

(i) Conduct activities as authorized by a permit under § 17.32.

(ii) Take, as set forth at § 17.21(c)(3) and (4) for endangered wildlife.

(iii) Possess and engage in other acts, as set forth at § 17.21(d)(2) for endangered wildlife.

(iv) In addition to any other provisions of this part, any employee or agent of the Service, of the National Marine Fisheries Service, or of a State conservation agency that is operating a conservation program pursuant to the terms of a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by that agency for such purposes, may, when acting in the course of official duties, take those threatened species of wildlife that are covered by an approved cooperative agreement to carry out conservation programs.

(d) American burying beetle (Nicrophorus americanus)—

(1) Prohibitions. The following prohibitions apply to the American burying beetle:

(i) Take of the American burying beetle. Take of the American burying beetle, except that take that is incidental to otherwise lawful activity (incidental take) is prohibited only when the take occurs on suitable American burying beetle habitat:

(A) In the New England and Northern Plains Analysis Areas where the incidental take results from soil disturbance; or

(B) In the Southern Plains Analysis Areas where the incidental take occurs on defined conservation lands, except where incidental take is in compliance with a Service-approved conservation plan.

(ii) Possession and other acts with unlawfully taken American burying beetles. It is unlawful to possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any American burying beetle that was taken in violation of paragraph (d)(1)(i) of this section or State law. Notwithstanding the preceding sentence, Federal and State law enforcement officers may possess, deliver, carry, transport, or ship any American burying beetle taken in violation of the Act as necessary in performing their official duties.

(iii) Import and export of the American burying beetle. It is unlawful to import or export the American burying beetle.

(iv) Interstate or foreign commerce. It is unlawful to deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever, and in the course of a commercial activity, the American burying beetle.

(v) Sale or offer for sale. It is unlawful to sell or to offer for sale in interstate or foreign commerce any American burying beetle.

(2) Exceptions from prohibitions.

(i) Any employee or agent of the Service or of a State conservation agency that is operating a conservation program pursuant to the terms of a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, may, when acting in the course of his or her official duties, take American burying beetles, provided that, for State conservation agencies, the American burying beetle is covered by an approved cooperative agreement to carry out conservation programs.

(ii) Federal or State government agencies may incidentally take American burying beetles when conducting wildlife management activities in the Northern Plains Analysis Areas.

(iii) Incidental take of American burying beetles resulting from ranching and grazing activities is allowed.

(3) Definitions. For the purposes of this paragraph (d), we define the following terms:

(i) Conservation lands means lands included within the existing boundaries:

(A) In Arkansas, of Fort Chaffee (approximately 64,000 acres); and

(B) In Oklahoma, of McAlester Army Ammunition Plant (approximately 45,000 acres) and Camp Gruber/Cherokee Wildlife Management Area (approximately 64,000 acres).

(ii) New England Analysis Area means Block Island in Rhode Island and Nantucket Island in Massachusetts.

(iii) Northern Plains Analysis Areas means portions of Nebraska and South Dakota, as presented in the map at paragraph (d)(4) of this section, to initially include an 18.6-mile buffer around each capture location to determine the outside boundaries of the analysis area. For specific information regarding whether a parcel of land is inside the Northern Plains Analysis Areas, contact your local Service ecological services field office. Field office contact information may be obtained from the Service regional offices, the addresses of which are listed at 50 CFR 2.2.

(iv) Ranching and grazing means activities involved in grazing livestock (e.g., cattle, bison, horse, sheep, goats, or other grazing animals) such as: Gathering of livestock; construction and maintenance of fences associated with livestock grazing; installation and maintenance of corrals, loading chutes, and other livestock working facilities; development and maintenance of livestock watering facilities; placement of supplements such as salt blocks for grazing livestock; and, when associated with livestock grazing, the control of noxious weeds, haying, mowing, and prescribed burning. Ranching and grazing does not include any form of farming, conversion of grassland to cropland, or management of cropland.

(v) Soil disturbance means movement or alteration of soil. Soil disturbance includes actions such as grading, filling, soil excavating, or topsoil stripping. Soil disturbance also includes non-physical alterations such as chemical treatment.

(vi) Southern Plains Analysis Areas means portions of Arkansas, Kansas, Oklahoma, and Texas, as presented in the map at paragraph (d)(4) of this section, to initially include an 18.6-mile buffer around each capture location to determine the outside boundaries of the analysis area. For specific information regarding whether a parcel of land is inside the Southern Plains Analysis Areas, contact your local Service ecological services field office. Field office contact information may be obtained from the Service regional offices, the addresses of which are listed at 50 CFR 2.2.

(4) Map of American Burying Beetle Analysis Areas.

(e) Hermes copper butterfly (Lycaena hermes)—

(1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to Hermes copper butterfly. Except as provided under paragraph (e)(2) of this section and §§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 species:

(i) Import or export, as set forth at § 17.21(b) for endangered wildlife.

(ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife.

(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife.

(iv) Interstate or foreign commerce in the course of a commercial activity, as set forth at § 17.21(e) for endangered wildlife.

(v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife.

(2) Exceptions from prohibitions. In regard to this species, you may:

(i) Conduct activities as authorized by a permit under § 17.32.

(ii) Take, as set forth at § 17.21(c)(2) through (c)(4) for endangered wildlife.

(iii) Take as set forth at § 17.31(b).

(iv) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife.

(v) Conduct the activities listed in paragraph (e)(2)(vi) of this section, including take, outside the area delineated in paragraph (e)(2)(vii) of this section if the activities are conducted in a manner that:

(A) Maintains contiguity of suitable habitat for the species within and dispersal corridor connectivity among populations, allowing for maintenance of populations and recolonization of unoccupied, existing habitat;

(B) Does not increase the risk of wildfire in areas occupied by the Hermes copper butterfly while preventing further habitat fragmentation and isolation, or degradation of potentially suitable habitat; and

(C) Does not preclude efforts to augment or reintroduce populations of the Hermes copper butterfly within its historical range with management of the host plant, spiny redberry (Rhamnus crocea).

(vi) Take the Hermes copper butterfly outside the area delineated in paragraph (e)(2)(vii) of this section if the take results from any of the following activities when conducted within habitats occupied by the Hermes copper butterfly:

(A) Survey and monitoring work in coordination with and reported to the Service as part of scientific inquiry involving quantitative data collection (such as population status determinations).

(B) Habitat management or restoration activities, including removal of nonnative, invasive plants, expected to provide a benefit to Hermes copper butterfly or other sensitive species of the chaparral and coastal sage scrub ecosystems, including removal of nonnative, invasive plants. These activities must be coordinated with and reported to the Service in writing and approved the first time an individual or agency undertakes them.

(C) Activities necessary to maintain the minimum clearance (defensible space) requirement from any occupied dwelling, occupied structure, or to the property line, whichever is nearer, to provide reasonable fire safety and to reduce wildfire risks consistent with the State of California fire codes or local fire codes or ordinances.

(D) Fire management actions on protected/preserve lands to maintain, protect, or enhance coastal sage scrub and chaparral vegetation. These activities must be coordinated with and reported to the Service in writing and approved the first time an individual or agency undertakes them.

(E) Maintenance of existing fuel breaks identified by local fire authorities to protect existing structures.

(F) Firefighting activities associated with actively burning fires to reduce risk to life or property.

(G) Collection, transportation, and captive-rearing of Hermes copper butterfly for the purpose of population augmentation or reintroduction, maintaining refugia, or as part of scientific inquiry involving quantitative data collection (such as survival rate, larval weights, and post-release monitoring) in coordination with and reported to the Service. This does not include activities such as personal “hobby” collecting and rearing intended for photographic purposes and re-release.

(H) Research projects involving collection of individual fruits, leaves, or stems of the Hermes copper butterfly host plant, spiny redberry, in coordination with and reported to the Service.

(vii) Take the Hermes copper butterfly within the portion of the range described in paragraphs (e)(2)(vi)(A) and (B) of this section:

(A) The southern edge is the Mexican border, and the western edge is the Pacific coast. The eastern and northern edges of the boundary follow the development that would isolate any extant populations found within the boundaries.

(B) Note: The map of areas exempted from take prohibitions follows:

(f) Fender's blue butterfly (Icaricia icarioides fenderi)—

(1) Definitions. As used in this paragraph (f), the following terms have these meanings:

(i) Occupied habitat. Habitat within the historical range of Fender's blue butterfly in the Willamette Valley of Oregon that supports or may support lupine, unless a qualified biologist using direct observation has conducted surveys for adult Fender's blue butterfly during the April 15 to June 30 flight period and documented no adult butterflies. Occupied habitat also includes all nectar habitat within 0.5 kilometers (km) (0.3 miles (mi)) of habitat containing at least one of the three host lupine species and that is occupied by Fender's blue butterfly. Unsurveyed areas within 2 km (1.25 mi) of a known Fender's blue butterfly population shall be assumed occupied if no surveys are conducted.

(ii) Qualified biologist. An individual with a combination of academic training in the area of wildlife biology or related discipline and demonstrated field experience in the identification and life history of Fender's blue butterfly, or in habitat restoration methods to benefit Fender's blue butterfly. If capture of individuals is required for accurate identification, the individual must hold a valid permit under section 10(a)(1)(A) of the Act.

(iii) Lupine. Any one of the three species of lupines known to be required as host plants for the larvae of Fender's blue butterfly: Kincaid's lupine (Lupinus sulphureus ssp. kincaidii), longspur lupine (L. arbustus), and sickle-keeled lupine (L. albicaulis).

(2) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to Fender's blue butterfly. Except as provided under paragraph (f)(3) of this section and §§ 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 species:

(i) Import or export, as set forth at § 17.21(b) for endangered wildlife.

(ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife.

(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife.

(iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife.

(v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife.

(3) Exceptions from prohibitions. In regard to this species, you may:

(i) Conduct activities as authorized by a permit under § 17.32.

(ii) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife.

(iii) Take, as set forth at § 17.21(c)(2) through (4) for endangered wildlife.

(iv) Take, as set forth at § 17.31(b).

(v) Take incidental to an otherwise lawful activity caused by:

(A) Mechanical removal of invasive and/or nonnative plant species. Mechanical treatments for invasive and nonnative plant control (including encroaching native woody species) that do not result in ground disturbance are authorized within occupied habitat outside the butterfly's flight period of April 15 to June 30, provided:

(1) Landowners or their agents conducting invasive or nonnative plant removal use reasonable care, which includes, but is not limited to, procuring and/or implementing technical assistance from a qualified biologist on timing and location of habitat management activities and avoidance of ground disturbance to avoid impacts to larvae or pupae. Best management practices for felling of trees, removal of vegetation off-site, and temporary piling of cut vegetation on-site are available from the Oregon Fish and Wildlife Office.

(2) Reasonable care during all activities includes best efforts to avoid trampling or damaging Fender's blue butterflies (eggs, pupae, larvae, and adults) and their host and nectar plants. Foot traffic shall be minimized in occupied habitat, and especially in the area of any lupine plants.

(B) Manual removal of invasive and/or nonnative plant species. Manual treatments for invasive and nonnative plant control (including encroaching native woody species) that do not result in ground disturbance are authorized within occupied habitat year-round, provided:

(1) Landowners or their agents conducting invasive or nonnative plant removal use reasonable care, which includes, but is not limited to, procuring and/or implementing technical assistance from a qualified biologist on location of habitat management activities and avoidance of ground disturbance to avoid impacts to larvae or pupae. Best management practices for felling of trees, removal of vegetation off-site, and temporary piling of cut vegetation on-site are available from the Oregon Fish and Wildlife Office.

(2) Reasonable care during all activities includes best efforts to avoid trampling or damaging Fender's blue butterflies (eggs, pupae, larvae, and adults) and their host and nectar plants. Foot traffic shall be minimized in occupied habitat, and especially in the area of any lupine plants.

(C) Mowing. Tractor mowing for invasive and nonnative plant control (including encroaching native woody species) and the maintenance of early seral conditions is authorized throughout occupied Fender's blue butterfly habitat before February 15 when lupine emerges and after August 15 when lupine undergoes senescence.

(1) Mowing with handheld mowers is authorized throughout the year; however, a buffer of at least 8 meters (25 feet) must be maintained between the mower and any individual lupine plant during Fender's blue butterfly flight season (April 15 to June 30).

(2) Prior to and during mowing, landowners or their agents must use reasonable care, which includes, but is not limited to, procuring and implementing technical assistance from a qualified biologist on timing and location of habitat management activities prior to conducting work; avoidance of ground disturbance to avoid impacts to larvae or pupae; and using best efforts during all activities to avoid trampling or damaging Fender's blue butterflies (eggs, pupae, larvae, and adults) and their host and nectar plants. Foot traffic shall be minimized in occupied habitat, and especially in the area of any lupine plants.

(D) Herbicide application for removal of invasive and/or nonnative plant species by hand wiping, wicking, and spot-spray applications. Hand wiping, wicking, and spot-spray applications of herbicides for either the removal of nonnative, invasive plant species or to prevent resprouting of woody species subsequent to cutting are authorized year-round.

(E) Herbicide application for removal of invasive and/or nonnative plant species by weed wiping and broadcast application. Weed wiping and broadcast application of herbicides are authorized outside of the flight period of April 15 to June 30; however, additional timing and use restrictions are required based on the chemicals used. Contact the Oregon Fish and Wildlife Office prior to herbicide application for a list of currently acceptable herbicides, their application methods, their appropriate timing of use, and best management practices associated with herbicide use.

(1) Prior to and during herbicide application, landowners or their agents must use reasonable care, which includes, but is not limited to, procuring and implementing technical assistance from a qualified biologist on habitat management activities prior to conducting the work; complying with all State and Federal regulations and guidelines for application of herbicides; and avoiding broadcast spraying in areas adjacent to occupied habitat if wind conditions are such that drift into the occupied area is possible.

(2) Landowners or their agents conducting herbicide application must use best efforts to avoid trampling or damaging Fender's blue butterflies (eggs, pupae, larvae, and adults) and their host and nectar plants. Foot traffic shall be minimized in occupied habitat, and especially in the area of any lupine plants.

(F) Ground disturbance for the purpose of planting native vegetation. Limited ground disturbance (digging and placement by hand) is authorized for the purpose of planting native vegetation as part of habitat restoration efforts, especially native food resources used by larvae and adults, in areas occupied by Fender's blue butterfly.

(1) Larvae of Fender's blue butterfly require lupine. For adults, preferred native nectar sources include, but are not limited to, the following flower species: tapertip onion (Allium acuminatum), narrowleaf onion (Allium amplectens), Tolmie's mariposa lily (Calochortus tolmiei), small camas (Camassia quamash), Clearwater cryptantha (Cryptantha intermedia), Oregon sunshine (Eriophyllum lanatum), Oregon geranium (Geranium oreganum), Oregon iris (Iris tenax), meadow checkermallow (Sidalcea campestris), rose checkermallow (Sidalcea virgata), and purple vetch (Vicia americana).

(2) Prior to and during planting of native vegetation, landowners or their agents must use reasonable care, which includes, but is not limited to, procuring and implementing technical assistance from a qualified biologist on timing and location of habitat management activities and using best efforts during all activities to avoid trampling or damaging Fender's blue butterflies (eggs, pupae, larvae, and adults) and their host and nectar plants. Foot traffic shall be minimized in occupied habitat, and especially in the area of any lupine plants.

(G) Summary of authorized methods and timing of habitat restoration activities for Fender's blue butterfly.

Table 1 to Paragraph (f)(3)(v)(G)

Management activity	Dates authorized for use in occupied habitat
Mechanical treatments	Outside of the flight period of April 15 to June 30.
Manual treatments	Year-round.
Mowing—tractors	Before February 15 and after August 15.
Mowing—handheld	Year-round, with a buffer of 8 meters (25 feet) between the mower and any individual lupine plant during the flight period of April 15 to June 30.
Herbicides—hand wiping	Year-round.
Herbicides—wicking	Year-round.
Herbicides—spot-spray	Year-round.
Herbicides—broadcast spray	Outside of the flight period of April 15 to June 30.*
Herbicides—weed wiping	Outside of the flight period of April 15 to June 30.*
Planting native vegetation	Year-round.

* Additional timing restrictions will apply based on the chemicals used. Contact the Oregon Fish and Wildlife Office for additional information.

(H) Reporting and disposal requirements. Any injury or mortality of Fender's blue butterfly associated with the actions excepted under paragraphs (f)(3)(v)(A) through (E) of this section must be reported to the Service and authorized State wildlife officials within 5 calendar days, and specimens may be disposed of only in accordance with directions from the Service. Reports should be made to the Service's Office of Law Enforcement (contact information is at § 10.22 of this subchapter) or the Service's Oregon Fish and Wildlife Office and to the State of Oregon Department of Parks and Recreation, Stewardship Section, which has jurisdiction over invertebrate species. The Service may allow additional reasonable time for reporting if access to these offices is limited due to closure.

(g) Puerto Rican harlequin butterfly (Atlantea tulita)—

(1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to the Puerto Rican harlequin butterfly. Except as provided under paragraph (g)(2) of this section and § 17.4, 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 species:

(i) Import or export, as set forth at § 17.21(b).

(ii) Take, as set forth at § 17.21(c)(1).

(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1).

(iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e).

(v) Sale or offer for sale, as set forth at § 17.21(f).

(2) Exceptions from prohibitions. In regard to this species, you may:

(i) Conduct activities as authorized by a permit under § 17.32.

(ii) Take, as set forth at § 17.21(c)(2) through (c)(4) for endangered wildlife.

(iii) Take as set forth at § 17.31(b).

(iv) Take incidental to an otherwise lawful activity caused by:

(A) Normal agricultural practices, including pesticide use, which are carried out in accordance with any existing regulations, permit and label requirements, and best management practices, as long as the practices do not include:

(1) Clearing or disturbing forest or prickly bush (Oplonia spinosa) to create or expand agricultural areas; or

(2) Applying pesticides in or contiguous to habitat known to be occupied by the Puerto Rican harlequin butterfly.

(B) Normal residential and urban activities, such as mowing, weeding, edging, and fertilizing.

(C) Maintenance of recreational trails in Commonwealth Forests by mechanically clearing vegetation, only when approved by or under the auspices of the Puerto Rico Department of Natural and Environmental Resources, or conducted on lands established by private organizations or individuals solely for conservation or recreation.

(D) Habitat management or restoration activities expected to provide a benefit to Puerto Rican harlequin butterfly or other sensitive species, including removal of nonnative, invasive plants. These activities must be coordinated with and reported to the Service in writing and approved the first time an individual or agency undertakes them.

(E) Projects requiring removal of the host plant to access and remove illicit garbage dumps that are potential sources of intentionally set fires, provided such projects are conducted in coordination with and reported to the Service.

(F) Fruit fly trapping by the U.S. Department of Agriculture's Animal and Plant Health Inspection Service, provided trapping activities do not disturb the host plant.

(v) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife.

(h) Silverspot butterfly (Speyeria nokomis nokomis). (1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to the silverspot butterfly. Except as provided under paragraphs (h)(2) and (3) of this section and §§ 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 species:

(i) Import or export, as set forth at § 17.21(b) for endangered wildlife.

(ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife.

(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife.

(iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife.

(v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife.

(2) General exceptions from prohibitions. In regard to this species, you may:

(i) Conduct activities as authorized by a permit under § 17.32.

(ii) Take, as set forth at § 17.21(c)(2) through (c)(4) for endangered wildlife.

(iii) Take as set forth at § 17.31(b).

(iv) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife.

(3) Exceptions from prohibitions for specific types of incidental take. You may take silverspot butterfly without a permit in wet meadow areas where bog violets (Viola nephrophylla/V. sororia var. affinis) are growing and immediately adjacent areas with nectar sources while carrying out the legally conducted activities set forth in this paragraph (h)(3), as long as the activities:

(i) Are conducted with reasonable care. For the purposes of this paragraph, “reasonable care” means limiting the impacts to the silverspot and bog violet by complying with any and all applicable Federal, State, and Tribal regulations for the activity in question; using methods and techniques that result in the least harm, injury, or death, as feasible; undertaking activities at the least impactful times (e.g., conducting activities that might impact habitat during the flight season) and locations, as feasible; ensuring the number of individuals affected does not impact the existing populations; minimizing the potential to introduce invasive plant species; and preserving the genetic diversity of populations; and

(ii) Consist of one or more of the following:

(A) Grazing:

(1) Moderate grazing (40 to 55 percent vegetative utilization) in late fall to early spring (October 15 to May 31); or

(2) Light grazing (less than 30 percent vegetative utilization) in summer through fall (June 1 to October 14).

(B) Annual haying or mowing in silverspot habitat in the early summer (June 30 or earlier). Blade height must be a minimum of 6 inches above the ground, with 8 inches or higher preferred in areas with bog violet. In surrounding drier areas, blade height may be lower than 6 inches where the violet is not present.

(C) Prescribed burning:

(1) In the spring (March 1 to April 30); or

(2) In the fall (October 15 to December 15), if the silverspot butterfly has been shown to not be present in a given year through adequate monitoring (i.e., at least two surveys at times when butterflies are active).

(D) Brush removal every 4 to 5 years. Brush removal may be conducted at any time during the year. Removal can be by mechanical means, burning, grazing, or herbicide application if in compliance with other excepted activities in this paragraph (h)(3). If mechanical means such as a brush hog is used, the blade must be set to 8 inches 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 is prohibited.

(E) Spot spraying, hand pulling, or mechanical treatment of noxious weeds, which may be conducted at any time during the year. Broadcast spraying of noxious weeds is prohibited.

(F) Replacement of fence poles and wire, and aboveground removal of woody vegetation along fence lines, which may be conducted at any time during the year. If removal of woody vegetation is done by machine, such as a brush hog, the machine blade must be set 8 inches or higher above the ground. For permanent removal of woody vegetation, a systemic herbicide may be applied directly to the cut stems of woody vegetation; broadcast spraying is prohibited.

(G) Maintenance and operation of existing utility infrastructure within and immediately adjacent to silverspot habitat if activities are kept within the confines of existing rights-of-way. This exception applies to standard activities to repair and maintain existing transmission towers, lines, and access roads, and to perform brush control, that are conducted as needed at any time during the year. Replacement of existing structures and the installation of new structures and infrastructure such as access roads are not excepted. Noxious weed control and fence maintenance must abide by the exceptions for these activities identified in paragraphs (h)(3)(ii)(E) and (F) of this section.

(H) Maintenance of other existing structures within and immediately adjacent to silverspot habitat if activities are kept within the confines of already disturbed ground.

[77 FR 20986, Apr. 6, 2012, as amended at 79 FR 67348, Oct. 24, 2014; 84 FR 64227, Nov. 21, 2019; 85 FR 65260, Oct. 15, 2020; 86 FR 72427, Dec. 20, 2021; 87 FR 73678, Dec. 1, 2022; 88 FR 2036, Jan. 12, 2023; 89 FR 11772, Feb. 15, 2024; 89 FR 23940, Apr. 5, 2024]