A 4(d) rule is one of many tools in the Endangered Species Act (ESA) for protecting threatened species. This rule gets its name from section 4(d) of the ESA, which directs the Secretary of Interior (and therefore the U.S. Fish and Wildlife Service) to issue regulations deemed “necessary and advisable to provide for the conservation of threatened species”. A 4(d) rule provides for the conservation of a threatened species by tailoring protections to prevent further decline and facilitate recovery. For more information about this tool please review our ESA regulation Final Revisions Sections 4 and 7 Frequently Asked Questions.

The purpose of the 4(d) rule is intended to improve future conditions so that the monarch migratory populations stabilize and grow. To save the monarch butterfly we need to (1) achieve a significant increase in the availability of milkweed and nectar plants in monarch breeding and migratory areas; (2) protect and enhance overwintering habitat; (3) avoid and minimize impacts to monarchs and their habitat from insecticides and herbicides; and (4) maintain public support for the conservation of monarch butterflies.

Our proposed 4(d) rule is intended to incentivize proactive conservation efforts. These exceptions include take resulting from activities that are either important to the conservation of the species or are considered to have minimal impacts and do not threaten the species' overall population. The exceptions in the proposed 4(d) rule are uniquely appropriate for monarchs because, unlike many listed species, monarch butterflies are found across an extensive historical range across the contiguous United States, Puerto Rico and the U.S. Virgin Islands. Through these exceptions, our goal is to achieve a significant increase in the availability of milkweed and nectar plants, protect and enhance overwintering habitat, and aid the public in helping further monarch butterfly conservation. We expect localized removal of milkweed and nectar plants will be outweighed by an overall addition of these resources across the landscape. To achieve an overall addition of monarch habitat, the species will need broad public support and action for monarch conservation. As a reminder, if an activity that will result in take of monarch is not specifically named in the 4(d) exceptions, it will be regulated. Other federal agencies, private citizens and groups can work with the U.S. Fish and Wildlife Service to pursue permits for incidental or purposeful take.

Prohibiting removal and management of milkweed is unlikely to result in the natural return of habitat and milkweed to the landscape in quantities to support and increase monarch populations, since much of that habitat has been permanently converted to other land uses. Preventing or limiting milkweed management could motivate landowners to proactively and permanently remove remaining milkweed from their lands to avoid regulatory constraints.

Prohibitions

This proposed 4(d) rule adopts the same prohibitions that apply to an endangered species under section 9 of the Endangered Species Act (ESA). Specifically, the proposed rule prohibits “take”, among other standard activities. These prohibitions apply unless otherwise allowed within the 4(d) rule exceptions (see “Exceptions” below).

Prohibitions under the ESA include:

• 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

The proposed prohibitions would apply throughout the species’ historical range, on both public and private lands in the contiguous United States, Puerto Rico, and U.S. Virgin Islands. We are not proposing to prohibit these activities in Hawaii or other U.S. Territories because these areas are outside the historical range of the species and monarchs in these areas do not contribute to recovery of the species in North America. We are also not proposing to prohibit these activities in Alaska because the species does not occur there.

A permit from USDA-Animal and Plant Health Inspection Service (APHIS) is required for the importation, interstate movement, and environmental release of butterflies, including monarchs. In addition, APHIS does not allow the movement of monarchs across the Continental Divide for environmental release and monarchs may not be transported to Hawaii, Alaska, or any of the U.S. Territories under existing regulations as part of 7 CFR 330.

At the time of this proposal, in addition to federal requirements, multiple states, including Alaska, Arizona, Connecticut, Hawaii, Montana, and Nevada, plus Puerto Rico, the Virgin Islands, and Guam prohibit importation and/or interstate movement of monarchs for the purpose of environmental release.

Exceptions

Through these exceptions, our goal is to achieve a significant increase in the availability of milkweed and nectar plants, protect and enhance overwintering habitat, and aid the public in helping further monarch butterfly conservation.

Through the 4(d) rule, the U.S. Fish and Wildlife Service has identified several exceptions to prohibitions which will encourage the “all hands on deck” habitat management this species uniquely requires. The proposed exceptions include take associated with:

• Activities that may maintain, enhance, remove or establish milkweed and nectar plants within the breeding and migratory range that do not result in conversion of native or naturalized grassland, shrubland or forested habitat
• Implementation of conservation plans developed by state or federal agencies
• Maintaining or improving monarch overwintering habitat in the United States when following an approved management plan
• Vehicle strikes
• Non-lethal collection, possession, captive-rearing, and release of 250 or fewer monarchs per year
• Non-lethal scientific research and educational activities involving 250 or fewer monarchs per year
• Possession of dead monarchs
• Sale of 250 or fewer captive-reared monarchs

We are seeking comments about the proposed 4(d) rule to assist us in applying or issuing protective regulations under section 4(d) of the Endangered Species Act, including:

• Whether the provisions related to the maintenance, enhancement, removal, or establishment of milkweed should be revised to include spatial or temporal restrictions or deferments;
• Whether we should include an exception for take of monarch associated with the use of pesticides and, if so, what measures are reasonable, feasible, and adequate to reduce or offset pesticide exposure to monarchs, including measures for specific classes of pesticides, pesticide uses, and application methods;
• Whether we should include an exception for take of monarch from transportation and energy infrastructure, including mortality from collisions with wind turbines; and
• Whether we could improve or modify our approach to the 4(d) rule in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

For full information about the types of public comment we are requesting, see our proposed 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.

The proposed rule seeks public comment on whether to except some or all pesticide uses and, if so, what measures are reasonable, feasible, and adequate to protect monarchs from pesticides. In general, the U.S. Environmental Protection Agency (EPA) registers pesticides and regulates their sale, distribution, and use in the U.S. When EPA registers a pesticide or reevaluates whether to maintain the registration of an existing pesticide, the agency is required to determine whether the pesticide might impact a federallylisted species or its critical habitat. If so, EPA must consult with the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, or both to determine whether the impact rises to the level of jeopardizing the species or destroying/adversely modifying critical habitat. As a result of the consultation, EPA typically adopts measures to minimize pesticide impacts on species and their critical habitat. Those measures appear on pesticide labels, such as through restrictions on when and how a pesticide may be applied. Once consultation is completed, our agency issues EPA a document that authorizes “take” of listed species from use of the pesticide. The take authorization provides pesticide users with legal coverage for inadvertently harming or killing a listed species while using the pesticide according to the label.

Our agency is seeking public comment on whether it should except take from pesticide uses in the 4(d) rule and, if so, whether the exceptions should include measures to minimize impacts to the monarch, similar to measures that could appear on pesticide labels if it were listed. We encourage comments on which types of pesticides, which pesticide uses and which pesticide application methods to except. Another key question is how best to align any minimization measures in a monarch 4(d) rule with EPA’s initiatives to meet its Endangered Species Act (ESA) obligations for pesticide registrations and reevaluations, particularly through the agency’s Final Herbicide Strategy and Draft Insecticide Strategy. Learn more about EPA’s pesticide and ESA work.

If a final monarch 4(d) rule were to include exceptions for take from pesticides, the result is that pesticide users would not violate the ESA (specifically the section 9 “take” prohibition) if they inadvertently harm monarchs as a result of pesticide applications, provided they follow the instructions on pesticide labels and any pesticide mitigation measures in the 4(d) rule. This would be the case even if EPA had not yet finished consulting with the Service on a pesticide.

We are proposing to except “take” of monarchs in the breeding and migratory areas that may result from actions that affect milkweed or nectar plants, as long as activities do not result in conversion of native or naturalized habitat. This exception is intended to encourage widespread maintenance of milkweed and widespread adoption of voluntary milkweed restoration. This unique approach is tailored for the monarch butterfly due to the species’ extraordinary ability to opportunistically use habitat that is found across the contiguous United States, Puerto Rico and the U.S. Virgin Islands. Our goal is to substantially increase breeding and migratory habitat through voluntary efforts. We expect localized removal of milkweed and nectar plants will be outweighed by an overall addition of these resources across the landscape, making broadscale public support for monarch conservation vitally important.

By allowing take from habitat management activities like mowing, haying, and prescribed fire, we are incentivizing the creation of new monarch habitat and disincentivizing the destruction of existing monarch habitat. We believe that voluntary efforts will be most effective in promoting and maintaining public support for monarch conservation while meeting the objective of increasing milkweed and nectar plants for monarch butterflies. The goal of these exceptions is to encourage landowners to add and maintain monarch habitat across the country because voluntary efforts will be the key to monarch conservation. We believe that any localized removal of habitat will be outweighed by the overall addition of milkweed and nectar plants across the landscape.

The 4(d) rule exceptions include take from activities that will support the continued use of working lands by farmers and ranchers, as well as activities used to manage habitat such as mowing and prescribed fire. We also want to support the continued management of monarch habitat in people’s backyards.

Our intention is to allow regular management activities that control smaller areas of milkweed and focusing our agency’s efforts on regulating the large-scale permanent conversion of habitat that has led to the decline of the monarch. As long as activities do not result in conversion of native or naturalized habitat, several types of milkweed and nectar plant management are included in the proposed 4(d) rule.  Take associated with these activities is excepted:

• Habitat restoration and management activities to sustain monarch butterfly habitat
• Livestock grazing and routine ranching activities
• Routine agricultural activities on lands already in use for agricultural production
• Fire management actions
• Forest management activities
• Maintenance, enhancement, removal and establishment of milkweed and nectar plants on residential properties
• Vegetation management activities that remove milkweed and/or nectar plants when conducted at times of year when monarchs are not likely present

Please read our proposed 4(d) rule for full details about these exceptions. Through our public comment period, we are requesting additional information about:

• Whether the provisions related to the maintenance, enhancement, removal or establishment of milkweed should be released to include spatial or temporal restrictions or deferments
• Whether we should include an exception for the maintenance, enhancement, removal, or establishment of milkweed and nectar plants on commercial properties

We considered existing research on the benefits and costs of captive-breeding, rearing, disease, citizen science, and environmental education to determine what level of captive-rearing would qualify as large-scale rearing and have the potential to negatively impact monarch populations.

Our analysis concluded that that the overall impact of collecting, possessing, captively rearing, releasing, and selling fewer than 250 individual monarchs at one location or facility (e.g., home, botanical garden, school, or business) is not expected to negatively affect conservation and recovery efforts for the monarch butterfly. If handling greater than 250 monarchs in a given year, you will need to apply for a permit from the U.S. Fish and Wildlife Service through the same permitting process as when working with any other federally threatened or endangered species.

In some cases, state natural resource agencies and local governments have their own monarch butterfly rules and regulations. This can include prohibitions on importation and/or interstate movement, captively rearing, and releasing monarch butterflies. You may need a state permit for scientific collection or educational activities. Please check with your state-specific and local agencies for more information.

Any movement of monarchs across State lines for environmental release requires a permit from APHIS; however, APHIS uses 250 monarchs as cut-off for their different permit types for moving butterflies for environmental release. We considered this as a basis for the 4(d) rule and concluded that the overall impact of collecting, rearing, selling, releasing or handling 250 or fewer individual monarchs per location or facility (e.g., home, botanical garden, school, business, or research facility) is not expected to negatively affect conservation and recovery efforts for the monarch butterfly.

We applied the 250-threshold to each type of activity (collection, captive rearing, sale, scientific and educational purposes) for monarchs, but we are seeking comment on this number and why it should or should not vary for different activities.

Our goal with the exceptions under the proposed 4(d) rule is to increase monarch habitat everywhere. The proposed 4(d) rule is intended to incentivize conservation actions while reducing the regulatory requirements for the public on forms of “take” that are expected to have minimal impacts to the species at-large in the contiguous United States, Puerto Rico, and the U.S. Virgin Islands.

By excepting permitting requirements for take associated with many types of habitat modification in the proposed 4(d) rule, we hope to encourage projects that will increase the quality and quantity of breeding and migratory habitat for monarchs. For example, when property managers make decisions about adding nectar plants and milkweed to their land, we do not want concerns about regulating monarch habitat to discourage creating and enhancing monarch habitat. Through our public comment period, we are requesting additional information about whether we should include an exception for direct impacts from transportation and energy infrastructure, including mortality from collisions with wind turbines. For full information about the types of public comment we are requesting, see our proposed 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.

Projects that have been funded, authorized or carried out by a federal agency must comply with section 7 of the Endangered Species Act through consultation with the U.S. Fish and Wildlife Service. The U.S. Fish and Wildlife Service is actively working on streamlined section 7 consultation procedures that are intended to incentivize the creation and maintenance of milkweed and nectar habitat while providing regulatory certainty for federal projects.

Yes. Section 7 Section 7
Section 7 Consultation The Endangered Species Act (ESA) directs all Federal agencies to work to conserve endangered and threatened species and to use their authorities to further the purposes of the Act. Section 7 of the Act, called "Interagency Cooperation," is the mechanism by which Federal agencies ensure the actions they take, including those they fund or authorize, do not jeopardize the existence of any listed species.

Learn more about Section 7 (a)(2) of the Endangered Species Act (ESA) requires federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of any listed species or destroy or adversely modify its critical habitat. A 4(d) rule does not remove that requirement.

All federal agencies are required to consult with the Fish and Wildlife Service on their actions if they “may affect” a listed species. Until a final listing is complete, federal agencies need to consult with the Fish and Wildlife Service only if a project they are funding, authorizing, or carrying out is likely to jeopardize the existence of monarch at the species level. The Service will be developing tools to assist federal agencies in fulfilling their responsibilities under the ESA to make the process efficient and effective, prior to a final listing.

For more information, please review the Frequently Asked Questions: ESA Regulation Final Revisions Sections 4 & 7 (PDF).