[Federal Register Volume 71, Number 162 (Tuesday, August 22, 2006)]
[Proposed Rules]
[Pages 48883-48899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7029]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU76


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Catesbaea melanocarpa

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the endangered plant Catesbaea 
melanocarpa (no common name) under the Endangered Species Act of 1973, 
as amended (Act). In total, approximately 50 acres (ac) (20.2 hectares 
(ha)) fall within the boundaries of the proposed critical habitat 
designation for C. melanocarpa in one unit located in Christiansted, 
St. Croix, U.S. Virgin Islands. If made final, this proposal may result 
in additional requirements under section 7 of the Act for Federal 
agencies. No additional requirements are expected for non-Federal 
actions. The Service seeks comments on all aspects of this proposal 
from the public.

DATES: We will accept comments from all interested parties until 
October 23, 2006. We must receive requests for public hearings, in 
writing, at the address shown in the ADDRESSES section by October 6, 
2006.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information by mail or hand-
delivery to Edwin E. Mu[ntilde]iz, Field Supervisor, U.S. Fish and 
Wildlife Service, Caribbean Fish and Wildlife Office, Road 301 Km. 5.1, 
P.O. Box 491, Boquer[oacute]n, Puerto Rico 00622.
    2. You may send comments by electronic mail (e-mail) to [email protected]. Please see the Public Comments Solicited section below 
for file format and other information about electronic filing.
    3. You may fax your comments to 787-851-7440.
    4. You may submit comments via the Federal E-Rulemaking Portal at 
http://www.regulations.gov.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Caribbean Fish and Wildlife Office, Road 301 Km. 5.1, 
Boquer[oacute]n, Puerto Rico (telephone 787-851-7297).

FOR FURTHER INFORMATION CONTACT: Marelisa Rivera, Caribbean Fish and 
Wildlife Office (see ADDRESSES), telephone 787-851-7297 ext. 231; 
facsimile 787-851-7440.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 
et seq.), including whether the benefit of designation will outweigh 
any threats to the species due to designation;
    (2) Specific information on the amount and distribution of 
Catesbaea melanocarpa habitat, including areas occupied by C. 
melanocarpa at the time of listing and containing features essential to 
the conservation of the species, and areas not occupied at the listing 
that are essential to the conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) We have not included lands containing features essential to the 
conservation of C. melanocarpa within the Gu[acute]nica and 
Sus[uacute]a Commonwealth Forests in Puerto Rico in this proposed 
designation because we believe that the Commonwealth Forests provide 
conservation management and protection for these features such that the 
specific areas do not meet the definition of critical habitat. We are 
seeking specific comments related to:
    (a) Whether our determination to not include these specific areas 
in critical habitat is appropriate, and
    (b) if our determination is not appropriate, then how should we 
define the specific areas essential to conservation of this plant.
    (5) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities;
    (6) Whether our approach to designating critical habitat could be 
improved or modified in any way to

[[Page 48884]]

provide for greater public participation and understanding, or to 
assist us in accommodating public concerns and comments;
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit electronic comments to [email protected] 
in ASCII file format and avoid the use of special characters or any 
form of encryption. Please also include ``Attn: Catesbaea melanocarpa'' 
in your e-mail subject header and your name and return address in the 
body of your message. If you do not receive a confirmation from the 
system that we have received your message, contact us directly by 
calling our Caribbean Fish and Wildlife Office at phone number 787-851-
7297.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. We will not consider anonymous comments, and we will 
make all comments available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the 
Caribbean Fish and Wildlife Office (see ADDRESSES).

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under section 4(b)(2) of the Act, there are significant 
limitations on the regulatory effect of designation under section 
7(a)(2) of the Act. In brief, (1) Designation provides additional 
protection to habitat only where there is a Federal nexus; (2) the 
protection is relevant only when, in the absence of designation, 
destruction or adverse modification of the critical habitat would take 
place (in other words, other statutory or regulatory protections, 
policies, or other factors relevant to agency decision-making would not 
prevent the destruction or adverse modification); and (3) designation 
of critical habitat triggers the prohibition of destruction or adverse 
modification of that habitat, but it does not require specific actions 
to restore or improve habitat.
    Currently, only 475 species or 36 percent of the 1,310 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,310 
listed species through conservation mechanisms such as listing, section 
7 consultations, the section 4 recovery planning process, the section 9 
protective prohibitions of unauthorized take, section 6 funding to the 
States, the section 10 incidental take permit process, and cooperative, 
non-regulatory efforts with private landowners. The Service believes 
that these measures may make the difference between extinction and 
survival for many species.
    In considering exclusions of areas proposed for designation, we 
evaluated the benefits of designation in light of Gifford Pinchot Task 
Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004) 
(hereinafter Gifford Pinchot). In that case, the Ninth Circuit 
invalidated the Service's regulation defining ``destruction or adverse 
modification of critical habitat.'' In response, on December 9, 2004, 
the Director issued guidance to be considered in making section 7 
adverse modification determinations. This proposed critical habitat 
designation does not use the invalidated regulation in our 
consideration of the benefits of including areas in this final 
designation. The Service will carefully manage future consultations 
that analyze impacts to designated critical habitat, particularly those 
that appear to be resulting in an adverse modification determination. 
Such consultations will be reviewed by the Regional Office prior to 
finalizing to ensure that an adequate analysis has been conducted that 
is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, the Service believes that 
additional agency discretion would allow our focus to return to those 
actions that provide the greatest benefit to the species most in need 
of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with limited ability to provide for public participation or 
to ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals, due to the risks associated 
with noncompliance with judicially imposed deadlines. This in turn 
fosters a second round of litigation in which those who fear adverse 
impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless and is very 
expensive, thus diverting resources from conservation actions that may 
provide relatively more benefit to imperiled species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.). These 
costs, which are not required for many other conservation actions, 
directly reduce the funds available for direct and tangible 
conservation actions.

Background

    We intend to discuss topics directly relevant to the designation of 
critical habitat in this proposed rule. For more

[[Page 48885]]

information on C. melanocarpa, including characteristics and life 
history, refer to the final listing rule published in the Federal 
Register on March 17, 1999 (64 FR 13116) and the final recovery plan 
(July 15, 2005).
    C. melanocarpa is a perennial spiny shrub of the Madder family 
(Rubiaceae). Most members of this family are found in the tropics. The 
genus Catesbaea consists of 10 or more other species of spiny shrubs 
and is generally confined to the Antilles, but some may extend into the 
Bahamas and the Florida Keys (Breckon and Kolterman 1993, p. 1). C. 
melanocarpa is found in both dry and moist forest life zones in the 
Caribbean on the island of Puerto Rico (PR) and in the U.S. Virgin 
Islands (USVI). The dry forest life zone in PR and USVI occupies about 
165,030 ha (407,798 acres) or 18 percent of PR and USVI. The moist 
forest life zone occupies 548,220 ha (1,354,681 acres) or 58 percent of 
PR and USVI.

Life History

    C. melanocarpa is a branching shrub that may reach approximately 
9.8 feet (ft) (3.0 meters (m)) in height. Spines are from 0.39 to 0.78 
inches (in) (1.00 to 2.00 centimeters (cm)) long. Leaves are small, 
from 0.19 to 1.0 in (5.00 to 25.00 millimeters (mm)) long, and 0.07 to 
0.58 in (2.00 to 15.00 mm) wide, often opposite. The flowers are white, 
solitary or paired, and almost lacking a stalk in the axils (angle 
formed by a leaf or branch with the stem) (Proctor 1991, p. 44).
    Biological and ecological information on C. melanocarpa is scarce. 
In July 1992, Breckon and Kolterman (1993, p. 2) measured stem height 
and basal diameter for the 24 individuals known from St. Croix. Stem 
height ranged from 0.36 to 9.91 ft (0.11 to 3.02 m) and averaged 2.59 
ft (0.79 m). Basal stem diameter ranged from 0.16 to 2.20 in (0.40 to 
5.60 cm). In December 1992, reproduction was checked, and while no 
flowers were observed, many adults (greater than 1.64 ft (0.50 m) in 
height) were in fruit (Breckon and Kolterman 1993, p. 2). In St. Croix, 
we observed the species with fruit in early March 2006.
    Only a few seed germination and propagation experiments have been 
conducted on C. melanocarpa (Breckon and Kolterman 1993, p. 2). In 
August 1988, seeds and plants were collected from the St. Croix 
location. Most of the transplanted seedlings have survived, and two 
have produced flowers and fruits. Of 57 seeds collected in December 
1990, 92 percent germinated, but only five of the seedlings survived. 
In 1993, two fruits were collected. Ten seeds were obtained from these 
two fruits, but none germinated. Two plants previously germinated from 
St. Croix seeds were donated to the Guanica Commonwealth Forest. These 
plants died before being planted. Fairchild Tropical Garden in Miami, 
Florida, collected seeds in 1994 or 1995 and had good germination and 
survival results (O'Reilly 2004).

Distribution and Abundance

    The historical and current range of this species includes Halfpenny 
Bay in St. Croix, USVI; Guanica and Sus[uacute]a Commonwealth Forests 
and Pe[ntilde]ones de Melones, PR; and Barbuda, Antigua, and Guadeloupe 
islands. Prior to 1995, C. melanocarpa was only known from 
Gu[aacute]nica, PR; St. Croix in the USVI; and Barbuda, Antigua, and 
Guadeloupe (Liogier and Martorell 1982, p. 172; Proctor 1991, p. 44; 
Breckon and Kolterman 1993, p. 1). Little was known about the status of 
this plant on the islands of Antigua, Barbuda, and Guadeloupe. One 
specimen, apparently originating from the Sus[uacute]a Commonwealth 
Forest in Sabana Grande and Yauco, PR, was collected in 1974 and is 
located in the herbarium of the University of Puerto Rico in San Juan, 
PR. Because of the poor condition of the specimen, it was not possible 
to confirm its identification as C. melanocarpa (Breckon and Kolterman 
1993, p. 1).
    In St. Croix, USVI, C. melanocarpa was first collected in 1881 by 
the Danish collector Baron H.F.A. von Eggers (Proctor 1991, p. 43). The 
species was re-discovered in Halfpenny Bay by Rudy G. O'Reilly, Jr., 
who found a small population (approximately seven individuals) in a dry 
coastal plain located about 2.5 miles (4 km) south of Christiansted in 
August 1988 (Breckon and Kolterman 1993, pp. 1-2). Voucher specimens of 
these plants were collected by G.R. Proctor on September, 1988 (Proctor 
1991, p. 43). The voucher describes the plants growing in pasture, 
shaded by Cassia poplyphylla (retama prieta) and other tall shrubs in 
the subtropical dry forest life zone. This population was estimated to 
consist of 24 individuals in July 1992 (Breckon and Kolterman 1993, p. 
2). In October 2002, one hundred individuals were estimated to occur at 
this same location (Lombard 2002).
    In Guanica, PR, C. melanocarpa was first collected by the German 
collector Paul Sintenis in 1886 (Proctor 1991, p. 43). Based on 
information in the Natural Heritage Program of the Puerto Rico 
Department of Natural and Environmental Resources (DNER), two 
historical collections are reported from Guanica: one in Cerro 
Montalva, west to Providencias Saltflats; and another at Punta Meseta, 
close to the Guanica Lighthouse within the Guanica Commonwealth Forest. 
Service biologists visited the last location on March 7, 2006 with 
personnel from the DNER and did not observe the species in the area. In 
2001, C. melanocarpa was rediscovered at the Guanica Commonwealth 
Forest (Trejo-Torres 2001, p. 62; Axelrod 2004; Trejo-Torres 2006) in 
the subtropical dry forest life zone. Service biologists visited the 
site in March 2006, and confirmed the presence of the species in a 
slope facing northwest of the Fuerte Trail. Approximately 12 
individuals were found within the deciduous forest type. However, this 
does not represent a population estimate for this species at the 
Guanica Commonwealth Forest. This forest contains habitat that is 
difficult to traverse. It is composed of dry shrub_scrub vegetation 
that is essentially a dense, thorny thicket of vegetation. 
Comprehensive surveys of the entire forest have not been conducted to 
determine all the locations of C. melanocarpa. Surveys thus far have 
been limited due to habitat constraints and resources to existing 
trails within the forests and have not been specifically designed yet 
to systematically look for C. melanocarpa. Axelrod (2004) anticipates, 
though, that this plant will be found in more locations in Guanica 
Commonwealth Forest and other places as more inventories are conducted.
    Within the subtropical moist forest life zone, the species has only 
been reported from the Sus[uacute]a Commonwealth Forest. C. melanocarpa 
has been reported in Sus[uacute]a twice in thirty years: in 1974 by 
Woodbury (Breckon and Kolterman 1993, p. 1) and in 2003 (Trejo-Torres 
2003, 2006). The occurrence of C. melanocarpa in Sus[uacute]a 
Commonwealth Forest was confirmed in 2003 when Trejo-Torres found the 
species in flower at the forest (Trejo-Torres 2003, 2006). Trejo-Torres 
submitted the collection voucher and the photography of the individual 
to the Service. Similar to the Guanica Commonwealth Forest, we do not 
have a comprehensive population estimate for the Sus[uacute]a 
Commonwealth Forest because systematic surveys of all suitable habitat 
have not been conducted. This forest also is composed of dense 
vegetation, making it difficult to traverse.
    At the time of listing in 1999, C. melanocarpa was known from one 
individual located on the Pe[ntilde]ones de Melones in Cabo Rojo, PR 
(about 16 miles (mi) or 25 kilometers (km) from Guanica); about 24 
individuals located

[[Page 48886]]

on one privately owned farm in Halfpenny Bay near Christiansted in St. 
Croix, USVI; and an undetermined number of individuals on Barbuda, 
Antigua, and Guadeloupe (64 FR 13116, March 17, 1999; Puerto Rico 
Planning Board 1995, p. 29; Proctor 1991, p. 44; Breckon and Kolterman 
1993, p. 1; USFWS 2005, p. 3). At the time of listing, Sus[uacute]a 
Commonwealth Forest was recognized as part of the historical 
distribution of the species; however, the occurrence within the forest 
could not be confirmed since the collection material deposited at the 
herbarium in San Juan was in poor condition.
    Currently, we have observed that the species, within U.S. 
jurisdiction (PR and USVI), occupies three discrete localities: (1) 
Approximately 100 individuals at a privately owned farm in Halfpenny 
Bay (Lombard 2002); (2) approximately 12 individuals located at the 
Fuerte Trail in Gu[aacute]nica Commonwealth Forest, Gu[aacute]nica, 
Guayanilla, and Yauco, PR (Axelrod 2004; Trejo-Torres 2001, p. 62), and 
(3) one individual located at the Sus[uacute]a Commonwealth Forest, 
Sabana Grande and Yauco, PR (Trejo-Torres 2006).
    The site in Pe[ntilde]ones de Melones, where the species was 
reported in 1995, has experienced periodic land clearing activities and 
road construction based on our observations in 2002 and 2006 (Foote 
2002; Axelrod 2004; Axelrod 2006). Several survey efforts have been 
conducted in the area by the Service and others; however, to date, no 
individuals of C. melanocarpa have been located (Foote 2002; Axelrod 
2004; Axelrod 2006; Oikos Environmental Services 2005, p. 27).

Habitat Description

    C. melanocarpa has been found to occur only in the subtropical dry 
and subtropical moist forest life zones. Based on our field 
observations, the currently occupied sites for this plant all fall into 
these forest life zones, and have similar habitat characteristics. The 
subtropical dry forest is considered the driest life zone in PR and the 
USVI, receiving a mean annual rainfall ranging from 24 to 40 in (60 to 
100 cm). Ewel and Whitmore (1973, pp. 10-20) described the vegetation 
in this zone as deciduous on most soils with most tree species dropping 
leaves during the dry season. The vegetation usually consists of a 
nearly continuous single-layered canopy with little ground cover. The 
leaves of dry forest species are often succulent or coriaceous 
(leathery), and species with spines and thorns are common. The 
vegetation in these areas is more xerophilous (drought resistant), and 
cacti are more abundant. Some common tree or shrub species of 
subtropical dry forest include: Prosopis juliflora (mesquite or 
bayahonda), Bursera simaruba (almacigo), Cephalocereus royenii 
(sebucan), Bucida buceras (ucar), and Guaiacum officinalis (guayacan). 
Tree heights usually do not exceed 49.2 ft (15 m), and crowns are 
typically broad, spreading, and flattened. Successional vegetation 
includes grasses, and the accumulated organic debris serves as fuel for 
human-induced fires (Ewel and Whitmore 1973, pp. 10-29). Extensive 
areas of this life zone in Puerto Rico lie over limestone. Within the 
subtropical dry forest life zone, the species currently occurs in 
Gu[aacute]nica Commonwealth Forest in PR and Halfpenny Bay in St. 
Croix, USVI.
    In Halfpenny Bay, the currently known population consists of about 
100 individuals located in a dry, coastal plain with soils belonging to 
the Glynn-Hogensborg Unit (NRCS 1998, pp. 63-64). The vegetation as 
observed by the Service in 2006 is composed of patches of dry woody 
vegetation (trees and shrubs), surrounded by grasses and C. melanocarpa 
is found under the canopy of these forested patches. The habitat 
characteristics of the site coincide with previous habitat descriptions 
for the species (Liogier and Martorell 1982, p. 172; USFWS 2005, p. 6). 
The average annual precipitation in the area ranges from 30.0 to 54.7 
in (762.0 to 1389.0 mm) (NRCS 1998, pp. 63-64).
    The currently known population in the Gu[aacute]nica Commonwealth 
Forest consists of approximately 12 individuals located on a slope 
northwest of the Fuerte Trail. In 2006, we observed that the vegetation 
within this locality is characterized by dry forest with semi-closed 
canopy on limestone soils and the species is found under the canopy. 
The Guanica Commonwealth Forest is located in southwestern PR in the 
municipalities of Guanica, Guayanilla, and Yauco. The forest was 
designated as a forest reserve in 1919 and a United Nations Biosphere 
Reserve in 1981. It is managed by the DNER. The Guanica Forest supports 
a variety of vegetation types, including cactus scrub, littoral forest, 
deciduous forest, and semi-evergreen forest (Silander et al. 1986, pp. 
60-66). The forest is underlain by limestone sedimentary rocks of 
Tertiary Period origin, and soils are shallow, well-drained, and 
alkaline (Silander et al. 1986, p. 51). Outcrops cover much of the 
area. Mean annual precipitation in the Gu[aacute]nica area is 
approximately 31 in (790 mm). C. melanocarpa is found in the deciduous 
forest. In this forest type, trees often reach 33 ft (10 m). Some 
associated tree and shrub species in this vegetation type are Bucida 
buceras (ucar), Bursera simaruba (almacigo), Coccoloba microstachya 
(uvillo), C. krugii, and Reynosia uncinata (chicharron) (Silander et 
al. 1986, p. 69).
    C. melanocarpa is currently known from Susua Commonwealth Forest, 
which is within the subtropical moist life zone of Puerto Rico. The 
subtropical moist forest is delineated by a mean annual rainfall 
ranging from 39 to 86 in (100 to 220 cm) (Ewel and Whitmore 1973, pp. 
20-29). Vegetation associations within this life zone are characterized 
by trees up to 65.6 ft (20 m) tall with rounded crowns. Many of the 
woody species are deciduous during the dry season and epiphytes are 
common. Some common tree or shrub species of subtropical moist forest 
include: Roystonea borinquena (palma real), Tabebuia heterophylla 
(roble blanco), Nectandra spp. (laurel), Erythrina poeppigiana (bucayo 
gigante), Inga vera (guaba), Inga laurina (guama), and Didymopanax 
morototoni (yagrumo macho) (Ewel and Whitmore 1973, pp. 20-29). The 
Sus[uacute]a Commonwealth Forest represents not only the influence of a 
climatic transition zone (dry to moist), but also a combination of 
volcanic and serpentine soils. Two vegetation associations (dry slope 
forest and gallery forest) have been delineated in the subtropical 
moist life zone (DNR 1976, p. 224). C. melanocarpa is found within the 
dry slope forest type. The climatic conditions and serpentine-derived 
soils contribute to more xeric conditions and a forest structure and 
species composition very similar to the Guanica Commonwealth Forest. In 
2001, Trejo-Torres (2003, 2006) rediscovered the species in the Susua 
Commonwealth Forest. One individual in flower was located in the 
forest. The individual was found on a rocky ravine west of Quebrada los 
Peces, at the southwestern corner of the public forest. The habitat is 
described as low forest on serpentine soil.
    In Penones de Melones, Cabo Rojo, PR, C. melanocarpa was discovered 
by Dr. F. Axelrod of the University of Puerto Rico in February 1995 
(PRPB 1995, p. 29). The collection voucher deposited in the University 
of Puerto Rico in San Juan describes the location in Boqueron Ward, 
Cabo Rojo, PR, at the upper west slopes of Penones de Melones from 164 
to 295 ft (50 to 90 m) above sea level. The voucher described the 
habitat as dry forget on limestone, and the collection was made from a 
7 ft (2 m) shrub with green globose (spherical) fruit. The Penones de 
Melones area consists of several chains of limestone hills and 
drainages

[[Page 48887]]

(ravines) surrounded by mangrove forests, mud flats, saltwater and 
freshwater lagoons, wooded lands, extensive pastures, and residential 
projects. The elevation ranges from 3.3 to 347.7 ft (1 to 106 m) above 
sea level. The limestone hill soils belong to San Germ[aacute]n Series 
(San Germ[aacute]n Stony Clay Loam or SmE) described as shallow and 
very shallow, strongly sloping and steep, well-drained, cobbly and 
stony soils on the limestone hills and mountains (Soil Conservation 
Survey 1965, pp. 114-115). Average annual precipitation in Cabo Rojo is 
approximately 34 in (874 mm) (USFWS 2004).
    Several vegetation surveys have been conducted in the Penones de 
Melones area in the last 20 years. Dr. Axelrod reported 84 vascular 
plant species at the site in 1995 (PRPB 1995, pp. 25-29). In 2005, Dr. 
H.E. Quintero conducted a flora and fauna study at the site and found 
that vegetation types are not uniform and there were patches of 
distinct forests, woodlands, shrub lands, and grasslands (Oikos 
Environmental Services 2005, p. 10). In August 2002, Service biologists 
visited the Pe[ntilde]ones de Melones area with Dr. Axelrod to identify 
the site where the species was discovered in 1995. The main part of the 
drainage, where C. melanocarpa was previously observed, showed signs of 
disturbance from periodic land clearing and road construction. They 
observed in August 2002 that the area had not been disturbed for 
several years and showed excessive growth of Acacia sp. in disturbed 
areas exposed to more sunlight. They noted that the area was covered 
with secondary vegetation with such species as Acacia farnesiana 
(aroma) and Prosopis juliflora (mesquite). Although the species was not 
found, Service biologists concluded that C. melanocarpa may be present, 
but the conditions of the habitat were not suitable to appropriately 
locate and identify the species (Foote 2002).
    In 2004, Dr. Axelrod provided comments to the Service regarding the 
occurrence of the species in the Penones de Melones area. He reported 
that, since his report of the species on the north side of Punta 
Melones, he found it once again in 2002 in a ravine on the south side 
of Punta Melones. He reported that, when he returned to the site in 
2004, the ravine on the south had been entirely bulldozed. In March 
2006, Service biologists visited these two sites on three occasions. 
The drainage area facing north of the Penones de Melones (area reported 
by Axelrod in 1995) was searched for the species, as well as the hills, 
the slopes, and drainages facing south of the hills. The original site, 
the drainage area facing north, demonstrates vegetation characteristics 
consistent with previous land clearing activities. The area consists of 
dense woodland dominated by mesquite trees. The ravine and hillsides 
located to the south of Pe[ntilde]ones de Melones have also been 
cleared by bulldozing activities and consist of dense woodlands 
dominated by mesquite trees in the lower area and a solid stand of fire 
bush (Croton lucidus) on the hillsides. Based on Service observations, 
the secondary dry forest vegetation that supported habitat for C. 
melanocarpa has been eliminated.

Summary of Threats

    C. melanocarpa is threatened by small population sizes 
characterized by the limited number of individuals and distribution, 
habitat destruction or modification for residential and tourist 
development, fire, and catastrophic natural events such as hurricanes 
(USFWS 2005, p. 8). Periodic land-clearing activities have been 
documented by the Service and others in the Penones de Melones area in 
Cabo Rojo (Foote 2002; Axelrod 2004; 2006). The Halfpenny Bay site is a 
privately owned agricultural tract that is subject to intense but 
periodic grazing. Based on information gathered during our site visit, 
most of the site was burned by a human-induced fire in 1997 (Hamada 
2006). This population is subject to impacts from cattle grazing 
activities as well as pressure for a golf course development (USFWS 
2005, p. 8). The limited number of individuals and restricted 
distribution make the species vulnerable to catastrophic events, such 
as hurricane damage and human-induced fires.

Previous Federal Actions

    For more information on previous Federal actions concerning C. 
melanocarpa, refer to the final listing rule (64 FR 13116, March 17, 
1999). We listed C. melanocarpa as endangered under the Act on March 
17, 1999 (64 FR 13116) and approved a final recovery plan for this 
plant on July 15, 2005 (USFWS 2005). In the 1999 final listing rule, we 
determined designation of critical habitat was not prudent. On 
September 17, 2004, the Center for Biological Diversity filed a lawsuit 
against the Department of the Interior and the Service [Center for 
Biological Diversity v. Norton (CV-00293-JDB) (D.D.C.)], challenging 
the failure to designate critical habitat for C. melanocarpa. In a 
settlement agreement dated June 3, 2005, the Service agreed to 
reevaluate the prudency of critical habitat for this species and, if 
prudent, submit a proposed designation of critical habitat to the 
Federal Register by August 15, 2006, and a final designation by August 
15, 2007.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) Essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation, as defined under section 3 of the Act, means 
to use and the use of all methods and procedures that are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided under the Act are no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time it was listed must 
first have features that are essential to the conservation of the 
species. Critical habitat designations identify, to the extent known 
using the best scientific data available, habitat areas that provide 
essential life cycle needs of the species (areas on which are found the 
primary constituent elements (PCEs), as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. [As discussed below, 
such areas may also be excluded from critical habitat.] Furthermore, 
when the best available scientific data do not demonstrate that the 
conservation needs of the species require additional areas, we will not 
designate critical habitat in areas

[[Page 48888]]

outside the geographical area occupied by the species at the time of 
listing. However, an area that was not known to be occupied at the time 
of listing but is currently occupied by the species will likely be 
essential to the conservation of the species and, therefore, typically 
included in the critical habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (P.L. 106-554; H.R. 5658) and 
the associated Information Quality Guidelines issued by the Service, 
provide criteria, establish procedures, and provide guidance to ensure 
that decisions made by the Service represent the best scientific data 
available. They require Service 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 determining which 
areas are critical habitat, a primary source of information is 
generally the listing package for the species. Additional information 
sources include the recovery plan for the species, articles in peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge. All 
information is used in accordance with the provisions of Section 515 of 
the Treasury and General Government Appropriations Act for Fiscal Year 
2001 (Pub. L. 106-554; H.R. 5658) and the associated Information 
Quality Guidelines issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. 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 to these planning efforts calls for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act and its implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is listed as 
endangered or threatened. Our regulations at 50 CFR 424.12(a)(1) state 
that the designation of critical habitat is not prudent when one or 
both of the following situations exist: (1) The species is threatened 
by taking or other activity and the identification of critical habitat 
can be expected to increase the degree of threat to the species; or (2) 
such designation of critical habitat would not be beneficial to the 
species. In our March 17, 1999, final rule (64 FR 13116), we determined 
that designating critical habitat was not prudent for C. melanocarpa 
because it would result in no known benefit to the species and could 
further pose a threat to the species through publication of site-
specific localities.
    We are already working with Federal and State agencies, private 
individuals, and organizations in carrying out conservation activities 
for C. melanocarpa, conducting surveys for additional occurrences, and 
assessing habitat conditions. However, critical habitat designation may 
be beneficial by providing additional information to individuals, local 
and State governments, and other entities engaged in long-range 
planning, because areas with features essential to the conservation of 
the species are clearly delineated and, to the extent currently 
feasible, the primary constituent elements of the habitat essential for 
conservation of the species are specifically identified. Furthermore, 
although the low numbers of this plant make it unlikely that its 
populations could withstand even moderate collecting pressure or 
vandalism, we do not have specific evidence of taking, collection, 
vandalism, trade, or unauthorized human disturbance and thus, we cannot 
say that designation would increase the likelihood of take.
    Accordingly, we withdraw our previous determination that the 
designation of critical habitat will not benefit C. melanocarpa and 
will increase the degree of threat to the species. We determine that 
the designation of critical habitat is prudent for this species. At 
this time, we have sufficient information necessary to identify 
specific areas that meet the definition of critical habitat and are, 
therefore, proposing critical habitat for C. melanocarpa.

Methods

    As required by section 4(b) of the Act, we use the best scientific 
data available in determining areas that were occupied at the time of 
listing that contain the features that are essential to the 
conservation of C. melanocarpa and other areas that are essential to 
the conservation of this species. We reviewed the approach to 
conservation of the species undertaken by local, State, and Federal 
agencies operating within the species' range since its listing, as well 
as the actions necessary for this plant's conservation as identified in 
the final recovery plan (USFWS 2005). We reviewed available information 
that pertains to the habitat requirements of this species. This 
information included: data from our files that we used for listing the 
species; peer-reviewed scientific publications; biological field 
surveys and reports; resource agencies' and universities' unpublished 
status reports; information and GIS maps (forest boundaries, 
topography, drainages, roads) from the Puerto Rico Planning Board and 
Puerto Rico Department of Natural and Environmental Resources; soil 
maps and manuals from Natural Resources Conservation Service (former 
Soil Conservation Service); U.S. Geological Survey topographic maps 
(scale 1:20,000); recent aerial photography; unpublished data and 
observations collected by Service biologists during recent field 
surveys; forest management plans from local agencies; the C. 
melanocarpa recovery plan; information received from and discussions 
with local (PR and USVI) botanists and researchers working with the 
species and its habitat; and herbarium collections. We also made 
several recent visits to all currently known localities (Halfpenny Bay, 
Pe[ntilde]ones de Melones, Gu[aacute]nica Commonwealth Forest, and 
Sus[uacute]a Commonwealth Forest) to gather abundance and distribution 
data and conduct habitat observations. Information from all sources was 
utilized to determine the species' range

[[Page 48889]]

and habitat features needed to support life history functions essential 
to the conservation of the species.
    Fewer than 115 individuals are known to occur in three discrete 
localities throughout PR and the USVI, and no additional sightings for 
the species have been reported in other areas. The locality where the 
majority of the individuals occur (about 100 plants) is a relatively 
small (50 ac, or 20 ha) privately owned cattle grazing parcel under 
current threat of development pressure in St. Croix. The two other 
localities are publicly owned and support the only known individuals of 
C. melanocarpa in PR. In the three areas, C. melanocarpa is associated 
with dry woody vegetation occupying the understory strata. The 
conservation of C. melanocarpa depends upon the protection of existing 
populations and the maintenance of ecological functions within these 
sites, including vegetation and soils characteristics essential to the 
conservation of the species. Therefore, we considered, but are not 
proposing any areas outside the geographical area presently occupied by 
the species.

Primary Constituent Elements (PCEs)

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, we are required to base critical habitat determinations 
on the best scientific data available and to consider within areas 
occupied by the species at the time of listing those physical and 
biological features that are essential to the conservation of the 
species (PCEs), and that may require special management considerations 
or protection. These include, but are not limited to, space for 
individual and population growth and for normal behavior; food, water, 
air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for reproduction, germination, or 
seed dispersal; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    The specific PCEs required for C. melanocarpa are derived from the 
biological needs of the species, and include those habitat components 
needed for growth and development, flower production, pollination, seed 
set and fruit production, and genetic exchange. Although at present 
time the information on the species' biological and ecological needs is 
limited (USFWS 2005, p. 7), habitat characteristics supporting all 
three currently known localities are known. Additionally, individuals 
in all three localities have been documented in fruit or flower. The 
presence of sexual reproduction indicates that the species has the 
potential to produce viable populations, with the assistance of 
appropriate conservation strategies.
    C. melanocarpa is currently known from both the subtropical dry 
forest and subtropical moist forest life zones of PR and the USVI. 
Except for one locality, the historical and current range of the 
species is within dry forest life zone. The Sus[uacute]a Commonwealth 
Forest is the only locality that is not dry forest; however, based on 
our observations because of its serpentine soils, the vegetation 
structure and species composition are similar to dry forest habitat 
(Breckon and Garc[iacute]a 2001; Silander et al. 1986, p. 243). In all 
three localities, the species is under the canopy of trees and shrubs, 
and all localities in PR are forested hills associated with either 
limestone or serpentine soils. The locality in St. Croix, based on 
Service observations, is a coastal plain with patches or thickets of 
trees and shrubs characteristic of dry forest habitat.
    Within the subtropical dry and moist forest life zones, C. 
melanocarpa has been reported from four discrete sites within the U.S. 
Caribbean: Halfpenny Bay, Pe[ntilde]ones de Melones, the Gu[aacute]nica 
Commonwealth Forest, and the Sus[uacute]a Commonwealth Forest. However, 
the species presently occupies only Halfpenny Bay in St. Croix, USVI, 
the Gu[aacute]nica Commonwealth Forest, PR, and the Sus[uacute]a 
Commonwealth Forest, PR.
    Vegetation at the Halfpenny Bay site comprised of dry thicket scrub 
vegetation, dominated by grasses with patches of trees and shrubs 
(USFWS 2005, pp. 6-7). Based on Service observations during a site 
visit conducted on March 1 and 2, 2006, C. melanocarpa is an understory 
species, currently growing below trees and shrubs characteristic of dry 
forest habitat. Associated flora include introduced grass species, 
Caesalpinia coriaria (dividive), Tamarindus indica (tamarind), Castela 
erecta (goat-bush), Acacia turtuosa (acacia), Cassia poplyphylla 
(retama prieta), Leucaena leucocephala (tan-tan), Randia aculeata (box-
briar or tintillo), and Cordia alba (white manjack). Soils in the 
Halfpenny Bay site have been described as belonging to the Glynn-
Hogensborg unit, which consists of very deep, well drained, nearly 
level to moderately steep soils (NRCS 1998, pp. 63-64).
    We observed the vegetation within the Gu[aacute]nica Commonwealth 
Forest locality in 2006 as dry forest with semi-closed canopy on 
limestone soils. The species is found under the canopy. In this forest 
type, trees often reach 33 ft (10 m). Some associated dry forest 
vegetation in this locality include uvillo (Coccoloba microstachya), C. 
diversifolia (uvilla), Thouinia portoricensis (quebracho), Guettarda 
elliptica (cucubano liso), alhel[iacute], Croton lucidus, Savia 
sessiliflora (amansa guapo), Pithecellobium unguis-cati (u[ntilde]a de 
gato), Guaiacum sanctum (guayac[aacute]n), Leucaena leucocephala 
(zarcilla), among other common species (Trejo-Torres 2001, pp. 59-63).
    Sus[uacute]a Commonwealth Forest is located in southwestern Puerto 
Rico in the municipalities of Yauco and Sabana Grande. The Sus[uacute]a 
Forest lies between the humid Central Cordillera and the dry coastal 
plains typical of the south coast. The forest represents not only the 
influence of a climatic transition zone (dry to moist), but also a 
combination of volcanic and serpentine soils (Department of Natural 
Resources 1976, p. 24). The majority of the forest (90 percent) is 
underlain by serpentine outcrop. The rest of the forest (10 percent) 
has nine other soil types that belong to the Caguabo-M[uacute]caro 
association (Silander et al. 1986, p. 224-226; Soil Conservation Survey 
1975, p. 9). These soils are described as slightly leached, loamy and 
clay, sticky and plastic soils underlain by hard or weathered rock at a 
depth of less than 30 inches (Soil Conservation Survey 1975, p. 9). 
Serpentine-derived soils create stressful conditions for the 
establishment and growth of plants, and their associated floras are 
characterized by high diversity and endemism (Cede[ntilde]o-Maldonado 
and Breckon 1996, p. 348). Two vegetation associations (dry slope 
forest and gallery forest) have been delineated in the subtropical 
moist life zone (Department of Natural Resources 1976, p. 224). The 
trees are slender, open-crowned, and usually less than 39.4 ft (12m) 
tall. The forest floor is open because the excessively drained soil 
supports little herbaceous growth (Ewel and Whitmore 1973, p. 25). C. 
melanocarpa is found in the dry slope forest type. The climatic 
conditions and serpentine-derived soils contribute to more xeric 
conditions and a forest structure and species composition similar to 
the Gu[aacute]nica Commonwealth Forest based on observations by the 
Service and others (Silander et al. 1986, pp. 239-245; Breckon and 
Garc[iacute]a 2001).

Primary Constituent Elements for C. melanocarpa

    In accordance with our regulations, we are required to identify the 
known physical and biological features (PCEs) essential to the 
conservation of C. melanocarpa. All proposed critical habitat for C. 
melanocarpa is occupied, within the species' current and historic

[[Page 48890]]

geographic range, and contains sufficient PCEs to support at least one 
life history function.
    Based on our current knowledge of the species and the requirements 
of the habitat to sustain the essential life history functions of the 
species, as discussed above, we have determined that C. melanocarpa's 
PCEs are:
    (1) Single-layered canopy forest with little ground cover and open 
forest floor that supports patches of dry vegetation with grasses, and
    (2) Well to excessively drained, limestone and serpentine-derived 
soils (including soils of the San Germ[aacute]n, Nipe, and Rosario 
series and Glynn and Hogensborg series).
    Open forest floor, canopy, and little ground cover are important 
requirements for an understory species like C. melanocarpa. Canopy 
provides shade and open forest floor reduces competition by herbaceous 
species. Limestone and serpentine derived soils that are well to 
excessively drained provide essential nutrients to this plant and 
sustain the dry conditions needed by the species. The proposed critical 
habitat in this rule has been determined to contain sufficient PCEs to 
support at least one life history function of C. melanocarpa.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available in determining areas that 
contain the features that are essential to the conservation of C. 
melanocarpa. We began our analysis by considering the historic 
distribution of the species and sites occupied by the species at the 
time of listing. The 1999 listing rule (64 FR 13116) identified two 
localities within U.S. jurisdiction as then occupied by the species: A 
50-ac (20-ha) privately owned parcel in Halfpenny Bay in St. Croix, 
USVI; and a 330-ac (132-ha) property in Pe[ntilde]ones de Melones in 
Cabo Rojo, PR. Both localities are found within the subtropical dry 
forest life zone and support habitat for the species. The final listing 
rule identified two historic collections: one in Gu[aacute]nica, PR, in 
1886, and one in Sus[uacute]a Commonwealth Forest, PR, in 1974. The 
Gu[aacute]nica Commonwealth Forest is within the subtropical dry forest 
life zone, and Sus[uacute]a Commonwealth Forest is considered within 
the moist forest life zone. However, the Sus[uacute]a Commonwealth 
Forest supports slopes with dry forest vegetation due to the climatic 
conditions and soil type. Both forests are similar in forest structure 
and species composition. Although both forests support habitat for C. 
melanocarpa, the presence of the species within these two forests was 
not corroborated at the time of listing. The rule noted that the 
Sus[uacute]a specimen could not be confirmed as C. melanocarpa because 
of its poor condition (64 FR13116, March 17, 1999; Breckon and 
Kolterman 1993, p. 1).
    We reviewed the approved final recovery plan to identify new 
records of occupancy of the species, biological information, and 
habitat characteristics (USFWS 2005, pp. 3-8). The plan identifies both 
downlisting and delisting criteria and emphasizes the importance of 
protecting existing populations within the range of this plant to 
prevent its extinction, decrease the threat to the species associated 
with catastrophic events, and to obtain sexual (seeds) and asexual 
(cuttings) propagation material to establish a propagation program for 
the species. The plan includes information provided by a peer reviewer 
during the comment period showing a recent collection of C. melanocarpa 
located at the Gu[aacute]nica Commonwealth Forest. This forest is 
located within the previously known distribution of the species and 
supports a historic collection of C. melanocarpa. A voucher of this 
collection is located in the herbarium of the University of Puerto Rico 
(UPR 2006).
    We also reviewed other information (such as sighting records from 
herbariums, DNER maps, and office files) and scientific literature and 
reports to identify additional information available on species range 
and biological needs. The Service contacted all researchers that have 
reported the species in recent years and visited all reported sites to 
confirm sightings. Herbarium records for Gu[aacute]nica and 
Pe[ntilde]ones de Melones describe the species growing in low forest or 
the understory of dry forest vegetation in limestone soils. The 
herbarium voucher for the species in Sus[uacute]a describes the species 
growing in low forest on serpentine soils (Trejo-Torres 2003). 
Vegetation characteristics, climatic conditions, and soil type coincide 
with the previously described habitat for the species. We confirmed 
sightings in St. Croix and Gu[aacute]nica Commonwealth Forest. Although 
additional forested areas within the dry forest life zone and the moist 
forest life zone are present in PR and USVI, no additional sightings 
for the species have been reported in these other areas.
    An area was considered for designation where it supported a 
population or occurrence and either (1) Possesses sufficient PCEs to 
support at least on life history function and was occupied at the time 
of listing or (2) is currently occupied. Information gathered by the 
Service and data collected during field visits resulted in this 
proposal regarding only three discrete areas in the U.S. Caribbean.
    The Halfpenny Bay area was occupied at the time of listing and 
continues to be occupied currently. This area contains features that 
are essential to the conservation of C. melanocarpa that may require 
special management or protection. Another area that was occupied at the 
time of listing, located in Pe[ntilde]ones de Melones in Cabo Rojo, PR, 
is not currently occupied by the species and has lost PCEs due to 
periodic land clearing activities with heavy machinery; it is not being 
proposed as critical habitat for the species due to lack of PCEs and 
lack of conservation value for the species.
    The Gu[aacute]nica and Sus[uacute]a Commonwealth forests have 
historical records of the species, and are currently occupied. Both 
areas are currently occupied by the species based on recent reports 
(Trejo-Torres 2001, p. 62; Trejo-Torres 2003; 2006) and site visits 
conducted by the Service in 2006.
    These three areas (Halfpenny Bay and both Commonwealth forests) 
represent all known occurrences of this species in the wild within U.S. 
jurisdiction (currently known to be fewer than 115 individuals). 
Protecting individuals in the three localities is vital to maintain 
genetic representation of all known localities in the U.S. Caribbean. 
We have determined that it is essential to prevent extinction of this 
plant, by protecting and secure existing populations, establishing a 
propagation program, augmenting existing populations with propagated 
individuals, and establishing new self-sustainable populations in 
protected areas (USFWS 2005). We believe all three currently occupied 
areas presently contain essential habitat features for the species.
    We reviewed existing management and conservation plans and 
management for C. melanocarpa to determine if any areas identified 
above as containing features essential to the conservation of the 
species did not meet the definition of critical habitat according to 
section 3(5)(A) of the Act. On the basis of this review, we believe 
that essential features within both Commonwealth Forests are adequately 
protected under the management of Puerto Rico DNER and the master plan 
for the Forests and do not require special management or protection. 
While these areas, which collectively total 14,575 ac (5,898 ha) 
contain the habitat features that are essential to the

[[Page 48891]]

conservation of the subspecies, they are not being included in this 
proposal (see Application of section 3(5)(A) of the Act section) 
because they do not meet the definition of critical habitat under 
section 3(5)(A) of the Act.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including within the boundaries of the map 
contained in this proposed rule areas already developed such as 
buildings, paved areas, and other structures in areas where the PCEs 
for C. melanocarpa are not present. The scale of the maps prepared 
under the parameters for publication within the Code of Federal 
Regulations may not reflect the exclusion of such developed areas. Any 
such structures and the land under them inadvertently left inside 
critical habitat boundaries shown on the maps of this proposed rule 
have been excluded by text in the proposed rule and are not proposed 
for designation as critical habitat. Therefore, Federal actions limited 
to these areas would not trigger section 7 consultation, unless they 
affect the species or primary constituent elements in adjacent critical 
habitat. To the extent feasible, we will continue, with the assistance 
of other State, Federal, and private researchers, to conduct surveys, 
research, and conservation actions on the species and its habitat in 
areas designated and not designated as critical habitat. We anticipate 
that the boundaries of the mapped units may be refined based on 
additional information received during the public comment period. If 
additional information becomes available on the species' biology, 
distribution, and threats, we will evaluate the need to revise critical 
habitat, or refine the boundaries of critical habitat as appropriate. 
Sites that are occupied by this plant that are not being designated for 
critical habitat will continue to receive protection under the Act's 
section 7 jeopardy standard where a Federal nexus may occur (see 
``Critical Habitat'' section).
    We are proposing to designate critical habitat on lands in need of 
special management or protection and on those that we have determined 
to be currently occupied by the species or occupied at the time of 
listing and which contain sufficient PCEs to support life history 
functions essential for the conservation of the species.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain the PCEs that 
may require special management considerations or protection. As 
discussed in detail here and in the unit descriptions below, we find 
that all of the PCEs in Halfpenny Bay may require special management 
considerations or protection due to threats to the species or its 
habitat. Such management considerations and protections include: 
fencing off forest patches to exclude cattle, developing fire-breaks 
adjacent to existing roads and farm boundaries during dry season, 
establishing conservation agreements with landowners to protect 
individuals within the property, collecting seeds and cuttings to 
establish a propagation program, and establishing additional patches of 
forest vegetation to plant additional individuals to augment existing 
populations within the site

Proposed Critical Habitat Designation

    We are proposing Halfpenny Bay in Christiansted, St. Croix, USVI as 
critical habitat for C. melanocarpa. This critical habitat unit 
described below constitutes our best assessment at this time of areas 
we determined to be occupied at the time of listing, containing the 
primary constituent elements, and which may require special management. 
All of the areas identified in this rule as occupied, including those 
in the Commonwealth Forests managed by DNER that do not meet the 
definition of critical habitat (see Application of Section 3(5)(A) of 
the Act section), are necessary to conserve the species. Appropriate 
management and protection will support reproduction, recruitment, 
adaptation to catastrophic events and genetic diversity (Primack 2000, 
pp. 124-133; Falk et al. 1996, pp. 113-119) as identified using the 
best available data.
    Table 1 provides the approximate area (acres, hectares) and land 
ownership of lands determined to meet the definition of critical 
habitat and proposed.

  Table 1.--Lands Determined To Meet the Definition of Critical Habitat
 for C. Melanocarpa, Land Ownership, Approximate Area (Acres, Hectares)
----------------------------------------------------------------------
    Critical habitat unit,                            Definitional area
           location               Land ownership       acres (hectares)
------------------------------------------------------------------------
Halfpenny Bay St. Croix, USVI  Private.............           50 (20.23)
    Total....................  ....................           50 (20.23)
------------------------------------------------------------------------

    Below we provide a brief description and rationale for the proposed 
unit of critical habitat for C. melanocarpa.

Halfpenny Bay, St. Croix

    The Halfpenny Bay critical habitat unit consists of an 
approximately 50-ac (20.23-ha) area on a privately owned agricultural 
tract located in a dry coastal plain about 2.48 miles (4 km) south of 
Christiansted, St. Croix, USVI. The area is delimited by Road 62 to the 
north, South Shore Road to the west, the local road to Halfpenny Bay to 
the east, and by the 10-meter (m) (33 ft) topographic contour line to 
the south. This unit encompasses the habitat features essential to the 
conservation of C. melanocarpa and does not contain manmade structures, 
such as existing private homes or barns. The species is located within 
dry thickets of scrub vegetation in this unit, which is dominated by 
grasses with patches of trees and shrubs. The unit contains PCEs 1 and 
2 and is important to conserving the genetic diversity of this plant. 
Since this is the locality with the highest number of individuals (100 
plants), we believe that it should be considered the core population to 
maintain genetic representation of this plant in the U.S. Caribbean. 
Propagation material, both sexual and asexual, should be collected from 
this population to augment the number of individuals in existing 
populations and establish new sustainable populations in protected 
areas in PR and the USVI.
    At the time of the 1999 listing, the population was estimated at 24 
individuals, but in 2002 the population was estimated at 100 
individuals by a Service biologist (Lombard 2002). The presence of the 
species at this site was confirmed by the Service in March 2006. This 
population is the only one known in the U.S. Virgin Islands, has the 
highest number of individuals, and it has been documented in 
reproductive condition (with fruit and flowers). The site is currently 
threatened by periodic but intense grazing, human-induced fires, and 
potential of development for a tourist project (USFWS 2005, p. 8),

[[Page 48892]]

and may require special management considerations or protection as 
discussed in the ``Special Management Considerations or Protections'' 
section above.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit 
Court of Appeals have invalidated this definition (see Gifford Pinchot 
Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 
2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 
F.3d 434, 442F (5th Cir 2001)). Pursuant to current national policy and 
the statutory provisions of the Act, destruction or adverse 
modification is determined on the basis of whether, with implementation 
of the proposed Federal action, the affected critical habitat would 
remain functional (or retain the current ability for the primary 
constituent elements to be functionally established) to serve the 
intended conservation role for the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. This is a procedural requirement only. 
However, once a proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of the 
conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action because of 
the section 7(a)(2) compliance process, should those species be listed 
or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report, while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) A concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that may affect, but are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable. 
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
jeopardy to the listed species or destruction or adverse modification 
of critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where a new 
species is listed or critical habitat is subsequently designated that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action or such discretionary 
involvement or control is authorized by law. Consequently, some Federal 
agencies may request reinitiation of consultation with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat or 
adversely modify or destroy proposed critical habitat.
    Federal activities that may affect C. melanocarpa or its designated 
critical habitat will require section 7 consultation under the Act. 
Activities on State, Tribal, local or private lands requiring a Federal 
permit (such as a permit from the Corps under section 404 of the Clean 
Water Act or a permit under section 10(a)(1)(B) of the Act from the 
Service) or involving some other Federal action (such as funding from 
the Federal Highway Administration, Federal Aviation Administration, or 
the Federal Emergency Management Agency) will also be subject to the 
section 7 consultation process. 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 permitted, 
do not require section 7 consultations.

[[Page 48893]]

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to C. melanocarpa and Its Critical Habitat

Jeopardy Standard
    Prior to and following designation of critical habitat, the Service 
has applied an analytical framework for C. melanocarpa jeopardy 
analyses that relies on the importance of core area populations to the 
survival and recovery of C. melanocarpa. The section 7(a)(2) analysis 
is focused not only on these populations but also on the habitat 
conditions necessary to support them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of C. melanocarpa in a qualitative fashion without making 
distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, if a proposed Federal action is 
incompatible with the viability of the affected core area 
population(s), inclusive of associated habitat conditions, a jeopardy 
finding is warranted because of the relationship of each core area 
population to the survival and recovery of the species as a whole.
Adverse Modification Standard
    The analytical framework described in the Director's December 9, 
2004, memorandum is used to complete section 7(a)(2) analyses for 
Federal actions affecting C. melanocarpa critical habitat. The key 
factor related to the adverse modification determination is whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would remain functional (or retain the current ability 
for the PCEs to be functionally established) to serve the intended 
conservation role for the species. Generally, the conservation role of 
C. melanocarpa critical habitat units is to support viable core area 
populations.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the species.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the PCEs to an extent that the conservation value 
of critical habitat for C. melanocarpa is appreciably reduced. 
Activities that, when carried out, funded, or authorized by a Federal 
agency, may affect critical habitat and therefore result in 
consultation for C. melanocarpa include, but are not limited to:
    (1) Actions that would reduce or degrade dry thicket scrub areas 
dominated by patches of trees and shrubs in the Halfpenny Bay area. 
Such activities could include vegetation clearing, intensive and 
extensive cattle grazing activities, and fire. Dry forest species in 
the Caribbean are not fire-resistant species.
    (2) Earth movement activities using heavy machinery within critical 
habitat that may result in changes in quantity and quality of soils 
within designated critical habitat.
    We consider the proposed critical habitat to contain features 
essential to the conservation of C. melanocarpa and to be in the 
geographic range of the species. The Halfpenny Bay area was occupied by 
the species at the time of listing (64 FR 13116, March 17, 1999; 
Proctor 1991, pp. 43-44; Breckon and Kolterman 1993, p. 1). Federal 
agencies already consult with us on activities in areas currently 
occupied by C. melanocarpa, or if the species may be affected by the 
action, to ensure that their actions do not jeopardize the continued 
existence of C. melanocarpa.

Application of Section 3(5)(A) of the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species at the time of 
listing on which are found those physical and biological features (i) 
Essential to the conservation of the species and (ii) that may require 
special management considerations or protection. Therefore, areas 
within the geographical area occupied by the species at the time of 
listing that do not contain the features essential for the conservation 
of the species are not, by definition, critical habitat. Similarly, 
areas within the geographic area occupied by the species at the time of 
listing that do not require special management or protection also are 
not, by definition, critical habitat.
    There are multiple ways to provide management for species habitat. 
Statutory and regulatory frameworks that exist at a local level can 
provide such protection and management, as can lack of pressure for 
change, such as areas too remote for anthropogenic disturbance. 
Finally, State, local, or private management plans as well as 
management under Federal agencies jurisdictions can provide protection 
and management to avoid the need for designation of critical habitat. 
When we consider a plan to determine its adequacy in protecting 
habitat, we consider whether the plan, as a whole will provide the same 
level of protection that designation of critical habitat would provide. 
The plan need not lead to exactly the same result as a designation in 
every individual application, as long as the protection it provides is 
equivalent, overall. In making this determination, we examine whether 
the plan provides management, protection, or enhancement of the PCEs 
that is at least equivalent to that provided by a critical habitat 
designation, and whether there is a reasonable expectation that the 
management, protection, or enhancement actions will continue into the 
foreseeable future. Each review is particular to the species and the 
plan, and some plans may be adequate for some species and inadequate 
for others.
    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides the same or better level of protection from adverse 
modification or destruction than that provided through a consultation 
under section 7 of the Act; (2) there is a reasonable expectation that 
the conservation management strategies and actions will be implemented 
based on past practices, written guidance, or regulations; and (3) the 
plan provides conservation strategies and measures consistent with 
currently accepted principles of conservation biology.

Guanica and Sus[uacute]a Commonwealth Forests: Commonwealth of Puerto 
Rico

    We have determined that the lands containing the features essential 
to the conservation of C. melanocarpa within the Guanica and 
Sus[uacute]a Commonwealth forests do not meet the definition of 
critical habitat under section 3(5)(A) of the Act as those features do 
not require special management or protections. As such, they are not 
being included in this proposal. Both forests are public lands owned by 
the Commonwealth of Puerto Rico and managed by the DNER.
    The DNER developed a master plan for the Commonwealth forests of 
Puerto Rico in 1976. The master plan identified soil and land types, 
climate, wildlife, vegetation, land use, recreation opportunities, and 
future research needs for all Commonweath forests, including Guanica 
and Sus[uacute]a forests. The master plan also identified management 
recommendations to address identified issues for each forest unit.
    In Guanica, the master plan identified special management 
considerations in accordance with the uniqueness of the forest, 
proposed to manage the forest and associated vegetation types for non-
consumptive use by the public, and reserved and managed the entire unit 
as

[[Page 48894]]

a wildlife sanctuary (DNR 1976, pp. 56-58). Because of the forest 
condition, it was designated as a United Biosphere Reserve in 1981 by 
the United Nations Educational, Scientific and Cultural Organization 
(UNESCO).
    For Sus[uacute]a, the master plan also identified special 
management considerations, including locating representative areas of 
all plant communities and rare and endangered species and limiting 
public use on these areas; not issuing new permits for transmission 
lines; and delineating all unique areas and preserving them in their 
natural condition (DNR 1976, pp. 230-232).
    Both forests are currently managed as wildlife sanctuaries, 
protecting wildlife and plants in perpetuity and allowing only non-
consumptive use by the public in designated areas and trails. Active 
management includes developing and maintaining fire breaks, conducting 
prescribed burning adjacent to roads to reduce fuel load, removing 
exotic plant species along roads, and promoting scientific data 
collection, and conducting outreach and education activities within 
adjacent communities. Forest management also provides opportunities for 
scientific research and the use of existing trails for passive 
recreation and education. The Guanica Forest also provides for beach 
use. These current management activities have not been identified as 
threats for C. melanocarpa.
    The Guanica and Sus[uacute]a Commonwealth forests and adjacent 
lands are designated as Critical Wildlife Areas (CWA) by the 
Commonwealth of Puerto Rico (DNER 2005, pp. 211 and 221). The CWA 
designation constitutes a special recognition by the Commonwealth with 
the purpose of providing information to Commonwealth and Federal 
agencies about the conservation needs of these areas and assisting 
permitting agencies in precluding negative impacts as a result of 
permit approvals or endorsements (DNER 2005, pp. 2-3).
    Since 1984, the Service and DNER have a signed cooperative 
agreement pursuant to section 6(c) of the Act, establishing a 
partnership agreement for the purpose of implementing an endangered and 
threatened fish, wildlife and plants species conservation program in 
the Commonwealth of Puerto Rico. Both parties agree that programs of 
the Commonwealth of Puerto Rico are designed to assist resident 
endangered and threatened species; it is their mutual desire to work in 
harmony for the common purpose of planning, developing and conducting 
programs to protect, manage and enhance the populations of all resident 
endangered and threatened fish, wildlife and plants within the 
Commonwealth of Puerto Rico.
    The DNER approved laws and regulations to protect threatened and 
endangered species within lands under their jurisdiction. In 1999, the 
Commonwealth of Puerto Rico approved Law Number 241, Wildlife Law of 
the Commonwealth of Puerto Rico (Ley de Vida Silvestre del Estado Libre 
Asociado de Puerto Rico--Ley N[uacute]m. 241 del 15 Ago. 1999). The 
purpose of this law is to protect, conserve, and enhance native and 
migratory wildlife species; declare all wildlife species within its 
jurisdiction as the property of Puerto Rico; regulate permits; regulate 
hunting activities; and regulate exotic species. In 2004, the DNER 
approved Commonwealth of Puerto Rico's Regulation Number 6766, which 
regulates the management of threatened and endangered species in Puerto 
Rico (Reglamento para Regir el Manejo de las Especies Vulnerables y en 
Peligro de Extinci[oacute]n en el Estado Libre Asociado de Puerto 
Rico--N[uacute]m. 6766 del 11 de Feb 2004). C. melanocarpa has been 
included in the list of protected species. Article 2.06 of this 
regulation prohibits collecting, cutting, and removing (among other 
activities) listed plant individuals within the jurisdiction of PR.
    Threats identified for C. melanocarpa on the Guanica and 
Sus[uacute]a Commonwealth forests are human-induced fires during dry 
season and cutting of vegetation for trail and powerline maintenance. 
The DNER has regulatory mechanisms to protect individuals of C. 
melanocarpa from these threats within the forest boundaries, and forest 
managers are aware of the occupied localities within the forests. We 
believe that management guidelines for both forests, current local laws 
and regulations and the close coordination and excellent working 
partnership with DNER will adequately address identified threats to C. 
melanocarpa, features essential to its conservation, and its habitat on 
DNER lands. Therefore, we do not believe that special management or 
protection is required for C. melanocarpa and its primary constituent 
elements.
    Recent, more extensive surveys conducted in Guanica Commonwealth 
Forest have expanded the known range of other federally listed species 
such, as bariaco (Trichilia triacantha) and palo de rosa (Ottoschulzia 
rhodoxylon), and other State-protected species all previously known for 
only a few individuals within the forest. These surveys were conducted 
in areas not previously accessed and are a result of a graduate 
student's thesis work that has not been published yet. As stated 
earlier in this rule, past collections exist for Guanica Commonwealth 
Forest. We believe additional occurrences of C. melanocarpa will be 
found in both forests. For example, when Trejo-Torres went to Guanica 
in 2001, specifically to search for and identify the species, he 
accomplished confirmation on an individual. When Service biologists 
returned to Gu[acute]nica Commonwealth Forest with this species' expert 
in 2006 to specifically search for this plant, they found 12 additional 
individuals in the vicinity.
    We believe that extensive surveys in the Sus[uacute]a Commonwealth 
Forest would also result in additional sightings of the species. It has 
been the Service's experience that, if extensive surveys are conducted 
additional individuals or populations may be found. For example, the 
endemic plant Calliandra locoensis was discovered in the Sus[uacute]a 
Forest in 1991 (Garc[iacute]a and Kolterman 1992, pp. 57-60), and only 
one population was known at the time (Breckon and Kolterman 1994, p. 
CL-1). Recent additional survey efforts have resulted in three 
additional localities and about 1,000 individuals (Gonzalez 1998, pp. 
41-42; Breckon and Kolterman 2000). Protection of such areas as the 
Commonwealth forests conveys stability of forest development, since 
most forest land in Puerto Rico was destroyed for agriculture. Forest 
reserves like Guanica, protected since 1919, provide the necessary 
structure to support the conservation of the species.
    Thus on the basis that Susua and the Guanica Commonwealth Forests 
are being adequately managed as wildlife sanctuaries by DNER, where 
they are protecting wildlife and plants in perpetuity and allowing only 
non-consumptive use by the public in designated areas and trails, we 
have determined that features essential to the conservation of C. 
melanocarpa on lands within these forests do not require special 
management considerations or protection. As such, these lands do not 
meet the definition of critical habitat for C. melanocarpa as defined 
in section 3(5)(A) of the Act and are not included in the proposal.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without the cooperation of non-Federal landowners. More than 60 percent 
of the United States is privately owned (National Wilderness Institute 
1995) and at least 80 percent of endangered or

[[Page 48895]]

threatened species occur either partially or solely on private lands 
(Crouse et al. 2002). Stein et al. (1995) found that only about 12 
percent of listed species were found almost exclusively on Federal 
lands (90 to 100 percent of their known occurrences restricted to 
Federal lands) and that 50 percent of federally listed species are not 
known to occur on Federal lands at all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-Federal landowners 
(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building 
partnerships and promoting voluntary cooperation of landowners is 
essential to understanding the status of species on non-Federal lands 
and is necessary to implement recovery actions such as reintroducing 
listed species, habitat restoration, and habitat protection.
    Many non-Federal landowners derive satisfaction from contributing 
to endangered species recovery. The Service promotes these private-
sector efforts through the Four Cs philosophy--conservation through 
communication, consultation, and cooperation. This philosophy is 
evident in Service programs such as Habitat Conservation Plans (HCPs), 
Safe Harbors, Candidate Conservation Agreements, Candidate Conservation 
Agreements with Assurances, and conservation challenge cost-share. Many 
private landowners, however, are wary of the possible consequences of 
encouraging endangered species to their property, and there is mounting 
evidence that some regulatory actions by the Federal government, while 
well-intentioned and required by law, can (under certain circumstances) 
have unintended negative consequences for the conservation of species 
on private lands (Wilcove et al. 1996; Bean 2002; Conner and Mathews 
2002; James 2002; Koch 2002; Brook et al. 2003). Many landowners fear a 
decline in their property value due to real or perceived restrictions 
on land-use options where threatened or endangered species are found. 
Consequently, harboring endangered species is viewed by many landowners 
as a liability, resulting in anti-conservation incentives because 
maintaining habitats that harbor endangered species represents a risk 
to future economic opportunities (Main et al. 1999; Brook et al. 2003).
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome of the designation, triggering 
regulatory requirements for actions funded, authorized, or carried out 
by Federal agencies under section 7 of the Act, can sometimes be 
counterproductive to its intended purpose. According to some 
researchers, the designation of critical habitat on private lands 
significantly reduces the likelihood that landowners will support and 
carry out conservation actions (Main et al. 1999; Bean 2002; Brook et 
al. 2003). The magnitude of this negative outcome is greatly amplified 
in situations where active management measures (such as reintroduction, 
fire management, control of invasive species) are necessary for species 
conservation (Bean 2002).
    Cooperative conservation is the foundation of the Service's actions 
to protect species, and the Service has many tools by which it can 
encourage and implement partnerships for conservation. These tools 
include conservation grants, funding for Partners for Fish and Wildlife 
Program, the Coastal Program, and cooperative-conservation challenge 
cost-share grants. Our Private Stewardship Grant Program and Landowner 
Incentive Program provide assistance to private landowners in their 
voluntary efforts to protect threatened, imperiled, and endangered 
species, including the development and implementation of Habitat 
Conservation Plans.
    Conservation agreements with non-Federal landowners (such as HCPs, 
contractual conservation agreements, easements, and stakeholder-
negotiated State regulations) enhance species conservation by extending 
species protections beyond those available through section 7 
consultations. In the past decade, we have encouraged non-Federal 
landowners to enter into conservation agreements, based on a view that 
we can achieve greater species conservation on non-Federal land through 
such partnerships than we can through other methods (61 FR 63854; 
December 2, 1996).

Economic Analysis

    An analysis of the economic impacts of proposing critical habitat 
for C. melanocarpa is being prepared. We will announce the availability 
of the draft economic analysis as soon as it is completed, at which 
time we will seek public review and comment. At that time, copies of 
the draft economic analysis will be available for downloading from the 
Internet at http://www.southeast.fws.gov or by contacting the Caribbean 
Fish and Wildlife Office directly (see ADDRESSES).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), and based on our implementation 
of the Office of Management and Budget's Final Information Quality 
Bulletin for Peer Review, dated December 16, 2004, we will seek the 
expert opinions of at least five appropriate and independent peer 
reviewers regarding the science in this proposed rule. The purpose of 
such review is to ensure that our critical habitat designation is based 
on scientifically sound data, assumptions, and analyses. We will send 
copies of this proposed rule to these peer reviewers immediately 
following publication in the Federal Register. We will invite these 
peer reviewers to comment during the public comment period on the 
specific assumptions and conclusions regarding the proposed designation 
of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing 
within 45 days of publication of this proposal in the Federal Register. 
We intend to schedule a public hearing on this proposal, if any are 
requested, once the draft economic analysis is available so that we can 
receive public comment on the draft economic analysis and proposed rule 
simultaneously. However, we can schedule a public hearing prior to that 
time, if specifically requested. We will announce the date, time, and 
place of the hearing in the Federal Register and local newspapers at 
least 15 days prior to the first hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of the sections, use of 
headings, paragraphing, and so forth) aid or

[[Page 48896]]

reduce its clarity? (4) Is the description of the notice in the 
SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the proposed rule? (5) What else could we do to make this 
proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the timeline for publication in the Federal Register, the Office of 
Management and Budget (OMB) has not formally reviewed this rule. We are 
preparing a draft economic analysis of this proposed action, which will 
be available for public comment, to determine the economic consequences 
of designating the specific area as critical habitat. This economic 
analysis also will be used to determine compliance with Executive Order 
12866, Regulatory Flexibility Act, Small Business Regulatory 
Enforcement Fairness Act, and Executive Order 12630.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are listed 
above in the ``Adverse Modification Standard'' section. The 
availability of the draft economic analysis will be announced in the 
Federal Register and in local newspapers so that it is available for 
public review and comments. When it is completed, the draft economic 
analysis can be obtained from the internet Web site at http://www.southeast.fws.gov or by contacting the Caribbean Fish and Wildlife 
Office directly (see ADDRESSES).
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, the agency will need to consider alternative 
regulatory approaches. Since the determination of critical habitat is a 
statutory requirement pursuant to the Act, we must then evaluate 
alternative regulatory approaches, where feasible, when promulgating a 
designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the Regulatory 
Flexibility Act (RFA) to require Federal agencies to provide a 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared in accordance with section 4(b)(2) of 
the Act and Executive Order 12866. This draft economic analysis will 
provide the required factual basis for the RFA finding. Upon completion 
of the draft economic analysis, the Service will publish a notice of 
availability of the draft economic analysis of the proposed designation 
and reopen the public comment period for the proposed designation. The 
Service will include with the notice of availability, as appropriate, 
an initial regulatory flexibility analysis or a certification that the 
rule will not have a significant economic impact on a substantial 
number of small entities accompanied by the factual basis for that 
determination. The Service has concluded that deferring the RFA finding 
until completion of the draft economic analysis is necessary to meet 
the purposes and requirements of the RFA. Deferring the RFA finding in 
this manner will ensure that the Service makes a sufficiently informed 
determination based on adequate economic information and provides the 
necessary opportunity for public comment.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This proposed rule to designate critical habitat for C. melanocarpa is 
a significant regulatory action under Executive Order 12866 as it may 
raise novel legal and policy issues. However, it is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action and no Statement of 
Energy Effects is required. We will further evaluate this in our draft 
economic analysis and revise this assessment if appropriate.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of

[[Page 48897]]

assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding,'' and the State, local, 
or Tribal governments ``lack authority'' to adjust accordingly. At the 
time of enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) A condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because the publicly owned units are owned by 
the Commonwealth of Puerto Rico, which does not fit the definition of 
``small governmental jurisdiction.'' As such, a Small Government Agency 
Plan is not required. We will, however, further evaluate this issue as 
we conduct our economic analysis and revise this assessment if 
appropriate.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with DOI and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
proposed critical habitat designation with appropriate State resource 
agencies in Puerto Rico and the U.S. Virgin Islands. The designation of 
critical habitat in areas currently occupied by C. melanocarpa imposes 
no additional restrictions to those currently in place and, therefore, 
has little incremental impact on State and local governments and their 
activities. The designation may have some benefit to these governments 
in that the areas that contain the features essential to the 
conservation of the species are more clearly defined, and the primary 
constituent elements of the habitat necessary to the conservation of 
the species are specifically identified. While making this definition 
and identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We propose designating critical habitat in accordance 
with the provisions of the Act. This proposed rule uses standard 
property descriptions and identifies the primary constituent elements 
within the designated area to assist the public in understanding the 
habitat needs of C. melanocarpa.

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

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

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no Tribal lands occupied at the time of listing containing 
the features essential for the conservation of C. melanocarpa and no 
Tribal lands that are unoccupied areas that are essential for the 
conservation of C. melanocarpa. Therefore, critical habitat for C. 
melanocarpa has not been proposed for designation on Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Caribbean Fish and 
Wildlife Office (see ADDRESSES).

Author(s)

    The primary authors of this package are the staff of Caribbean Fish 
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec.  17.12(h), revise the entry for ``Catesbaea 
melanocarpa'' under ``FLOWERING PLANTS'' to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

[[Page 48898]]



------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
-------------------------------------------------------   Historic range           Family             Status     When listed    Critical   Special rules
        Scientific name               Common name                                                                               habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
FLOWERING PLANTS
 
                                                                      * * * * * * *
Catesbaea melanocarpa.........  None..................  U.S.A. (PR, VI),   Rubiaceae............  E............          657     17.96(a)  NA
                                                         Antigua,
                                                         Barbuda,
                                                         Guadalupe.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.96, amend paragraph (a) by adding an entry for 
Catesbaea melanocarpa in alphabetical order under Family Rubiaceae to 
read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) * * *
    Family Rubiaceae: Catesbaea melanocarpa (no common name)
    (1) Critical habitat is depicted on the map below for Halfpenny 
Bay, St. Croix, U.S. Virgin Islands.
    (2) The primary constituent elements (PCEs) of critical habitat for 
C. melanocarpa are the habitat components that provide:
    (i) Single-layered canopy forest with little ground cover and open 
forest floor that supports patches of dry vegetation with grasses, and
    (ii) Well to excessively drained, limestone and serpentine-derived 
soils (including soils of the San German, Nipe, and Rosario series and 
Glynn and Hogensborg series).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, roads, and other paved areas) and the 
land on which they are located existing on the effective date of this 
rule and not containing one or more of the primary constituent 
elements.
    (4) Critical habitat map. Data layers were created by overlaying 
habitats that contain at least two of the PCEs, as defined in paragraph 
(2) of this section, on U.S. Geological Survey (USGS) topographic maps 
(UTM 20, NAD 27).
    (5) Halfpenny Bay, St. Croix, U.S. Virgin Islands.
    (i) General description: The Halfpenny Bay unit consists of 
approximately 50-ac (20.23-ha) on privately owned property located 
about 2.48 mi (4 km) south of Christiansted, St. Croix, U.S. Virgin 
Islands. The area is delimited by Road 62 to the north, South Shore 
Road to the west, the local road to Halfpenny Bay to the east, and by 
the 33-ft (10-m) topography contour line to the south. This unit 
encompasses the habitat features essential to the conservation of C. 
melanocarpa within Estate Halfpenny, Christiansted, St. Croix, and does 
not contain any manmade structures.
    (ii) Coordinates: From Christiansted USGS 1:24,000 quadrangle map, 
St. Croix land bounded by the following UTM 20 NAD 27 coordinates 
(E,N): 319053.46, 1959358.06; 319363.69, 1959455.15; 319476.85, 
1959132.82; 319505.42, 1959046.53; 319551.84, 1958916.00; 319534.20, 
1958929.38; 319519.91, 1958929.38; 319498.48, 1958938.91; 319484.19, 
1958946.05; 319458.00, 1958943.67; 319434.19, 1958934.15; 319405.61, 
1958927.00; 319372.28, 1958924.62; 319372.28, 1958915.10; 319391.33, 
1958905.57; 319412.76, 1958900.81; 319446.09, 1958893.67; 319462.76, 
1958893.67; 319484.19, 1958884.14; 319500.86, 1958874.62; 319534.20, 
1958850.80; 319548.49, 1958831.75; 319558.01, 1958812.70; 319558.01, 
1958793.65; 319534.20, 1958774.60; 319512.77, 1958767.46; 319477.05, 
1958753.17; 319438.95, 1958750.79; 319407.99, 1958750.79; 319391.33, 
1958753.17; 319381.80, 1958746.03; 319355.61, 1958748.41; 319332.84, 
1958757.39; 319322.93, 1958759.64; 319311.66, 1958776.76; 319308.51, 
1958787.58; 319310.36, 1958805.56; 319306.26, 1958826.78; 319291.31, 
1958843.66; 319271.56, 1958860.13; 319253.53, 1958870.94; 319231.78, 
1958879.38; 319220.24, 1958896.22; 319208.81, 1958913.94; 319199.67, 
1958924.80; 319172.23, 1958965.37; 319153.20, 1958993.68; 319141.29, 
1959019.87; 319124.63, 1959053.21; 319115.10, 1959077.02; 319105.58, 
1959103.22; 319250.83, 1959146.08; 319203.21, 1959269.90; 319059.77, 
1959230.54; 319057.97, 1959244.96; 319058.87, 1959263.88; 319066.98, 
1959282.81; 319064.72, 1959303.09; 319059.77, 1959323.82; 319055.57, 
1959353.25; 319053.46, 1959358.06.
    (iii) Note: Map of Halfpenny Bay follows:
BILLING CODE 4310-55-P

[[Page 48899]]

[GRAPHIC] [TIFF OMITTED] TP22AU06.062

* * * * *

    Dated: August 15, 2006.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-7029 Filed 8-21-06; 8:45 am]
BILLING CODE 4310-55-C