64908 Federal Register / Vol. 85, No. 198 / Tuesday, October 13, 2020 / Proposed Rules

DEPARTMENT OF THE INTERIOR (1) Electronically: Go to the Federal threatened species and designation of eRulemaking Portal: http:// critical habitat can only be completed Fish and Wildlife Service www.regulations.gov. In the Search box, by issuing a rule. enter FWS–R4–ES–2020–0083, which is What this document does. 50 CFR Part 17 the docket number for this rulemaking. We propose listing the Puerto Rican Then, click on the Search button. On the harlequin butterfly as a threatened [Docket No. FWS–R4–ES–2020–0083; resulting page, in the Search panel on species with a rule issued under section FF09E21000 FXES11110900000 201] the left side of the screen, under the 4(d) of the Act, and we propose Document Type heading, check the designation of critical habitat for the RIN 1018–BE16 Proposed Rule box to locate this species. The basis for our action. Under the Endangered and Threatened Wildlife document. You may submit a comment by clicking on ‘‘Comment Now!’’ Act, we may determine that a species is and Plants; Threatened Species Status an endangered or threatened species With Section 4(d) Rule for Puerto Rican (2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: because of any of five factors: (A) The Harlequin Butterfly and Designation of present or threatened destruction, Critical Habitat FWS–R4–ES–2020–0083, U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 modification, or curtailment of its AGENCY: Fish and Wildlife Service, Leesburg Pike, Falls Church, VA 22041– habitat or range; (B) overutilization for Interior. 3803. commercial, recreational, scientific, or educational purposes; (C) disease or ACTION: Proposed rule. We request that you send comments only by the methods described above. predation; (D) the inadequacy of SUMMARY: We, the U.S. Fish and We will post all comments on http:// existing regulatory mechanisms; or (E) Wildlife Service (Service), announce a www.regulations.gov. This generally other natural or manmade factors 12-month finding on a petition to list means that we will post any personal affecting its continued existence. We the Puerto Rican harlequin butterfly information you provide us (see have determined that habitat (Atlantea tulita), a species from Puerto Information Requested, below, for more modification and fragmentation caused Rico, as a threatened species and information). by urban development and agriculture, designate critical habitat under the Availability of supporting materials: human-induced fires, improperly Endangered Species Act of 1973, as For the critical habitat designation, the applied pesticides (insecticides and amended (Act). After a review of the coordinates or plot points or both from herbicides), small population size, and best available scientific and commercial which the maps are generated are climate change are threats to the Puerto information, we find that listing the included in the administrative record Rican harlequin butterfly. Section 4(a)(3) of the Act requires the species is warranted. Accordingly, we and are available at https:// Secretary of the Interior (Secretary) to propose to list the Puerto Rican www.fws.gov/southeast/caribbean/ and designate critical habitat concurrent harlequin butterfly as a threatened at http://www.regulations.gov under species with a rule issued under section with listing to the maximum extent Docket No. FWS–R4–ES–2020–0083. prudent and determinable. Section 4(d) of the Act (‘‘4(d) rule’’). If we Any additional tools or supporting finalize this rule as proposed, it would 3(5)(A) of the Act defines critical habitat information that we may develop for the as (i) the specific areas within the add this species to the List of critical habitat designation will also be geographical area occupied by the Endangered and Threatened Wildlife available at the Service website and species, at the time it is listed, on which and extend the Act’s protections to the field office set out above, and may also are found those physical or biological species. We also propose to designate be included in the preamble and/or at features (I) essential to the conservation critical habitat for the Puerto Rican http://www.regulations.gov. of the species and (II) which may harlequin butterfly under the Act. In FOR FURTHER INFORMATION CONTACT: require special management total, approximately 41,266 acres Edwin Mun˜ iz, Field Supervisor, U.S. considerations or protections; and (ii) (16,699.8 hectares) in six units in the Fish and Wildlife Service, Caribbean specific areas outside the geographical municipalities of Isabela, Quebradillas, Ecological Services Field Office, P.O. area occupied by the species at the time Camuy, Arecibo, Utuado, Florida, Box 491, Road 301 km 5.1, Boquero´n, it is listed, upon a determination by the Ciales, Maricao, San Germa´n, Sabana PR 00622; telephone 787–851–7297. Secretary that such areas are essential Grande, and Yauco are within the Persons who use a telecommunications for the conservation of the species. boundaries of the proposed critical device for the deaf (TDD) may call the Section 4(b)(2) of the Act states that the habitat designation. We also announce Federal Relay Service at 800–877–8339. Secretary must make the designation on the availability of a draft economic SUPPLEMENTARY INFORMATION: the basis of the best scientific data analysis (DEA) of the proposed available and after taking into designation of critical habitat for the Executive Summary consideration the economic impact, the Puerto Rican harlequin butterfly. Why we need to publish a rule. Under impact on national security, and any DATES: We will accept comments the Act, if we determine that a species other relevant impacts of specifying any received or postmarked on or before is an endangered or threatened species particular area as critical habitat. December 14, 2020. Comments throughout all or a significant portion of Peer review. In accordance with our submitted electronically using the its range, we are required to promptly joint policy on peer review published in Federal eRulemaking Portal (see publish a proposal in the Federal the Federal Register on July 1, 1994 (59 ADDRESSES, below) must be received by Register and make a determination on FR 34270), and our August 22, 2016, 11:59 p.m. Eastern Time on the closing our proposal within 1 year. To the memorandum updating and clarifying date. We must receive requests for a maximum extent prudent and the role of peer review of listing actions public hearing, in writing, at the address determinable, we must designate critical under the Act, we sought the expert shown in FOR FURTHER INFORMATION habitat for any species that we opinions of six appropriate specialists CONTACT by November 27, 2020. determine to be an endangered or regarding the species status assessment ADDRESSES: You may submit comments threatened species under the Act. report. We received responses from one by one of the following methods: Listing a species as an endangered or specialist, which informed this

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proposed rule. The purpose of peer (d) Historical and current population range of the species should be included, review is to ensure that our listing levels, and current and projected trends; in light of specific information on: determinations, critical habitat and (a) The amount and distribution of designations, and 4(d) rules are based (e) Past and ongoing conservation Puerto Rican harlequin butterfly habitat; on scientifically sound data, measures for the species, its habitat, or (b) What areas, that were occupied at assumptions, and analyses. The peer both. the time of listing and that contain the reviewers have expertise in the biology, (2) Factors that may affect the physical or biological features essential habitat, and threats to the species. continued existence of the species, to the conservation of the species, Because we will consider all which may include habitat modification should be included in the designation comments and information we receive or destruction, overutilization, disease, and why; during the comment period, our final predation, the inadequacy of existing (c) Special management determinations may differ from this regulatory mechanisms, or other natural considerations or protection that may be proposal. Based on the new information or manmade factors. needed in critical habitat areas we are we receive (and any comments on that (3) Biological, commercial trade, or proposing, including managing for the new information), we may conclude that other relevant data concerning any potential effects of climate change; and the species is endangered instead of threats (or lack thereof) to this species (d) What areas not occupied at the threatened, or we may conclude that the and existing regulations that may be time of listing are essential for the species does not warrant listing as either addressing those threats. conservation of the species. We an endangered species or a threatened (4) Additional information concerning particularly seek comments: species. The new information may also the historical and current status, range, (i) Regarding whether occupied areas lead us to finalize a 4(d) rule that distribution, and population size of this are adequate for the conservation of the contains a more narrow set of specific species, including the locations of any species; and (ii) Providing specific information protective measures or additional additional populations of this species. regarding whether or not unoccupied measures. Finally, the final critical (5) Information on regulations that are areas would, with reasonable certainty, habitat designation may differ from this necessary and advisable to provide for contribute to the conservation of the proposed designation by including the conservation of the Puerto Rican species and contain at least one physical additional areas within the historical harlequin butterfly and that the Service or biological feature essential to the range of the species, by removing some can consider in developing a 4(d) rule of the areas in this proposed conservation of the species. for the species. In particular, we seek (8) Land use designations and current designation, or by doing both. Such information concerning the extent to final decisions would be a logical or planned activities in the subject areas which we should include any of the and their possible impacts on proposed outgrowth of this proposal, as long as section 9 prohibitions in the 4(d) rule or we: (1) Base the decisions on the best critical habitat. whether any other forms of take should (9) Any probable economic, national scientific and commercial data available be excepted from the prohibitions in the after considering all of the relevant security, or other relevant impacts of 4(d) rule. designating any area that may be factors; (2) do not rely on factors (6) The reasons why we should or Congress has not intended us to included in the final designation, and should not designate habitat as ‘‘critical the related benefits of including or consider; and (3) articulate a rational habitat’’ under section 4 of the Act (16 connection between the facts found and excluding specific areas. U.S.C. 1531 et seq.), including (10) Information on the extent to the conclusions made, including why information to inform the following we changed our conclusion. As which the description of probable factors that the regulations identify as economic impacts in the draft economic discussed under Information Requested, reasons why designation of critical below, we seek comments from the analysis is a reasonable estimate of the habitat may be not prudent: likely economic impacts. public related to all of these possible (a) The species is threatened by taking alternatives. (11) Whether any specific areas we are or other human activity and proposing for critical habitat Information Requested identification of critical habitat can be designation should be considered for expected to increase the degree of such We intend that any final action exclusion under section 4(b)(2) of the threat to the species; resulting from this proposed rule will be Act, and whether the benefits of based on the best scientific and (b) The present or threatened potentially excluding any specific area commercial data available and be as destruction, modification, or outweigh the benefits of including that accurate and as effective as possible. curtailment of a species’ habitat or range area under section 4(b)(2) of the Act. Therefore, we request comments or is not a threat to the species, or threats (12) Whether we could improve or information from other concerned to the species’ habitat stem solely from modify our approach to designating governmental agencies, the scientific causes that cannot be addressed through critical habitat in any way to provide for community, industry, or any other management actions resulting from greater public participation and interested parties concerning this consultations under section 7(a)(2) of understanding, or to better proposed rule. the Act; accommodate public concerns and We particularly seek comments (c) Areas within the jurisdiction of the comments. concerning: United States provide no more than Please include sufficient information (1) The species’ biology, range, and negligible conservation value, if any, for with your submission (such as scientific population trends, including: a species occurring primarily outside journal articles or other publications) to (a) Biological or ecological the jurisdiction of the United States; or allow us to verify any scientific or requirements of the species, including (d) No areas meet the definition of commercial information you include. habitat requirements for feeding, critical habitat. Please note that submissions merely breeding, and sheltering; (7) Whether any of the areas included stating support for, or opposition to, the (b) Genetics and taxonomy; in this proposed designation of critical action under consideration without (c) Historical and current range, should not be included, or whether any providing supporting information, including distribution patterns; additional areas within the historical although noted, will not be considered

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in making a determination, as section finding that listing the Puerto Rican The Puerto Rican harlequin butterfly 4(b)(1)(A) of the Act directs that harlequin butterfly is warranted but is endemic to Puerto Rico, occurring in determinations as to whether any precluded by higher priority actions to the western portion of the island, in the species is an endangered or a threatened amend the Lists of Endangered and Northern Karst region and in the West- species must be made ‘‘solely on the Threatened Wildlife and Plants. We, central Volcanic-serpentine region. The basis of the best scientific and therefore, added the Puerto Rican life cycle of the Puerto Rican harlequin commercial data available.’’ harlequin butterfly to the list of butterfly includes four distinct You may submit your comments and candidate species. anatomical stages: Egg, larva (caterpillar, materials concerning this proposed rule The Puerto Rican harlequin butterfly with several size phases called instars), by one of the methods listed in was included in the annual candidate chrysalis, and imago (butterfly or adult). ADDRESSES. We request that you send notices of review (CNORs) we published Completion of the species’ life cycle, comments only by the methods between 2011 and 2019 (76 FR 66370 from egg to butterfly, likely averages 125 described in ADDRESSES. October 26, 2011; 77 FR 69994, days, but can vary based on temperature If you submit information via http:// November 21, 2012; 78 FR 70104, and humidity. All life stages of the www.regulations.gov, your entire November 22, 2013; 79 FR 72450, Puerto Rican harlequin butterfly are submission—including any personal December 5, 2014; 80 FR 80584, observed year-round, suggesting that identifying information—will be posted December 24, 2015; 81 FR 87246, mating and oviposition (egg-laying) may on the website. If your submission is December 2, 2016; 84 FR 54732, October occur at any time during the year. made via a hardcopy that includes 10, 2019). The Puerto Rican harlequin butterfly personal identifying information, you On January 15, 2019, the Center for has been observed to disperse up to may request at the top of your document Biological Diversity (CBD) filed a notice approximately 1 kilometer (km) (0.6 that we withhold this information from of intent to sue due to failure to mile (mi)) from one breeding site to public review. However, we cannot resubmit the petition finding and another (Monzo´n 2007, p. 42). Eggs and guarantee that we will be able to do so. subsequently filed suit on March 23, larvae are found only on Oplonia We will post all hardcopy submissions 2019. We are required to review the spinosa (prickly bush). First instars feed on http://www.regulations.gov. status of the Puerto Rican harlequin only on this plant (Carrio´n-Cabrera Comments and materials we receive, butterfly and resubmit the 12-month 2003, p. 40; Biaggi-Caballero 2009, p. 4). as well as supporting documentation we finding to the Federal Register by While O. spinosa is essential to Puerto used in preparing this proposed rule, September 25, 2020, in accordance with Rican harlequin butterfly viability, the will be available for public inspection a February 12, 2020, stipulated plant occurs throughout the species’ on http://www.regulations.gov. settlement agreement and subsequent range and, unless removed for land Public Hearing extension granted by the court on clearing, is not a limited resource. Active during the daytime, the Section 4(b)(5) of the Act provides for August 28, 2020. This document butterflies feed on the nectar of several a public hearing on this proposal, if constitutes our resubmitted status tree species (Barber 2018, p. 71) and requested. Requests must be received by review and 12-month finding on the also drink water. The species has been the date specified in DATES. Such February 25, 2009, petition to list the found only within 1 km (0.6 mi) of a requests must be sent to the address Puerto Rican harlequin butterfly under water source (e.g., creek, river, pond, shown in FOR FURTHER INFORMATION the Act, and satisfies that amended puddle). CONTACT. We will schedule a public provision in the February 2, 2020, stipulated settlement agreement. Relative to other butterfly species, the hearing on this proposal, if requested, Puerto Rican harlequin butterfly is and announce the date, time, and place Supporting Documents medium-sized. The male butterfly’s of the hearing, as well as how to obtain A species status assessment (SSA) abdomen is brownish-black on the reasonable accommodations, in the team prepared an SSA report for the dorsal side and has orange and brown Federal Register and local newspapers Puerto Rican harlequin butterfly. The bands on the ventral side, while the at least 15 days before the hearing. For SSA team was composed of Service female’s abdomen is brownish-black the immediate future, we will provide biologists, who consulted with other with white bands. Wings of both sexes these public hearings using webinars species experts. The SSA report are largely brownish-black with sub- that will be announced on the Service’s represents a compilation of the best marginal rows of deep orange spots and website, in addition to the Federal scientific and commercial data available beige cells. The caterpillar is dark Register. The use of these virtual public concerning the status of the species, orange with a brownish-black to black hearings is consistent with our including the impacts of past, present, thin line, over a thin intermittent white regulations at 50 CFR 424.16(c)(3). and future factors (both negative and line along each side of the body from Previous Federal Actions beneficial) affecting the species. The the head to hind end. Each body On February 25, 2009, we were Service sent the SSA report to six segment of the caterpillar has several petitioned by Mr. Javier Biaggi-Cabellero independent peer reviewers and evenly-spaced pairs of spines covered in to list the Puerto Rican harlequin received one response from a peer hairs. reviewer at the Fort Worth Zoo who had butterfly as endangered under the Act. Regulatory and Analytical Framework On April 26, 2010, we published in the expertise in Puerto Rican harlequin Federal Register (75 FR 21568) a butterfly biology, habitat, and threats. Regulatory Framework document announcing our 90-day I. Proposed Listing Determination Section 4 of the Act (16 U.S.C. 1533) finding that the petition presented and its implementing regulations (50 substantial scientific or commercial Background CFR part 424) set forth the procedures information indicating that listing the A thorough review of the taxonomy, for determining whether a species is an harlequin butterfly may be warranted. life history, and ecology of the Puerto ‘‘endangered species’’ or a ‘‘threatened On May 31, 2011, we published in the Rican harlequin butterfly (Atlantea species.’’ The Act defines an Federal Register (76 FR 31282) a tulita) is presented in the SSA report ‘‘endangered species’’ as a species that document announcing our 12-month (version 1.5; Service 2019, pp. 13–22). is in danger of extinction throughout all

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or a significant portion of its range, and determines whether the species meets conservation biology principles of a ‘‘threatened species’’ as a species that the definition of an ‘‘endangered resiliency, redundancy, and is likely to become an endangered species’’ or a ‘‘threatened species’’ only representation (Shaffer and Stein 2000, species within the foreseeable future after conducting this cumulative pp. 306–310). Briefly, resiliency throughout all or a significant portion of analysis and describing the expected supports the ability of the species to its range. The Act requires that we effect on the species now and in the withstand environmental and determine whether any species is an foreseeable future. demographic stochasticity (for example, ‘‘endangered species’’ or a ‘‘threatened The Act does not define the term wet or dry, warm or cold years), species’’ because of any of the following ‘‘foreseeable future,’’ which appears in redundancy supports the ability of the factors: the statutory definition of ‘‘threatened species to withstand catastrophic events (A) The present or threatened species.’’ Our implementing regulations (for example, droughts, large pollution destruction, modification, or at 50 CFR 424.11(d) set forth a events), and representation supports the curtailment of its habitat or range; framework for evaluating the foreseeable ability of the species to adapt over time (B) Overutilization for commercial, future on a case-by-case basis. The term to long-term changes in the environment recreational, scientific, or educational ‘‘foreseeable future’’ extends only so far (for example, climate changes). In purposes; into the future as the Service can general, the more resilient and (C) Disease or predation; reasonably determine that both the redundant a species is and the more (D) The inadequacy of existing future threats and the species’ responses representation it has, the more likely it regulatory mechanisms; or to those threats are likely. In other is to sustain populations over time, even (E) Other natural or manmade factors words, the foreseeable future is the under changing environmental affecting its continued existence. period of time in which we can make conditions. Using these principles, we These factors represent broad reliable predictions. ‘‘Reliable’’ does not identified the species’ ecological categories of natural or human-caused mean ‘‘certain’’; it means sufficient to requirements for survival and actions or conditions that could have an provide a reasonable degree of reproduction at the individual, effect on a species’ continued existence. confidence in the prediction. Thus, a population, and species levels, and In evaluating these actions and prediction is reliable if it is reasonable described the beneficial and risk factors conditions, we look for those that may to depend on it when making decisions. influencing the species’ viability. have a negative effect on individuals of It is not always possible or necessary The SSA process can be categorized the species, as well as other actions or to define foreseeable future as a into three sequential stages. During the conditions that may ameliorate any particular number of years. Analysis of first stage, we evaluated the individual negative effects or may have positive the foreseeable future uses the best species’ life-history needs. The next effects. scientific and commercial data available stage involved an assessment of the We use the term ‘‘threat’’ to refer in and should consider the timeframes historical and current condition of the general to actions or conditions that are applicable to the relevant threats and to species’ demographics and habitat known to or are reasonably likely to the species’ likely responses to those characteristics, including an negatively affect individuals of a threats in view of its life-history explanation of how the species arrived species. The term ‘‘threat’’ includes characteristics. Data that are typically at its current condition. The final stage actions or conditions that have a direct relevant to assessing the species’ likely of the SSA involved making predictions impact on individuals (direct impacts), responses to threats include species- about the species’ responses to positive as well as those that affect individuals specific factors such as lifespan, and negative environmental and through alteration of their habitat or reproductive rates or productivity, anthropogenic influences. Throughout required resources (stressors). The term certain behaviors, and other all of these stages, we used the best ‘‘threat’’ may encompass—either demographic factors. available information to characterize together or separately—the source of the Analytical Framework viability as the ability of a species to action or condition or the action or sustain populations in the wild over condition itself. The SSA report documents the results time. We use this information to inform However, the mere identification of of our comprehensive biological review our regulatory decision. any threat(s) does not necessarily mean of the best scientific and commercial that the species meets the statutory data regarding the status of the Puerto Summary of Biological Status and definition of an ‘‘endangered species’’ or Rican harlequin butterfly, including an Threats a ‘‘threatened species.’’ In determining assessment of the potential threats to the In this discussion, we review the whether a species meets either species. The SSA report does not biological condition of the species and definition, we must evaluate all represent a decision by the Service on its resources, and the threats that identified threats by considering the whether the species should be proposed influence the species’ current and future expected response by the species, and for listing as an endangered or condition, in order to assess the species’ the effects of the threats—in light of threatened species under the Act. It overall viability and the risks to that those actions and conditions that will does, however, provide the scientific viability. ameliorate the threats—on an basis that informs our regulatory individual, population, and species decisions, which involve the further Species Needs level. We evaluate each threat and its application of standards within the Act Puerto Rican harlequin butterflies expected effects on the species, then and its implementing regulations and need the tender new growth of the host analyze the cumulative effect of all of policies. The following is a summary of plant, Oplonia spinosa, for egg laying by the threats on the species as a whole. the key results and conclusions from the adults and feeding by caterpillars. We also consider the cumulative effect SSA report; the full SSA report can be Adults rely on particular types of woody of the threats in light of those actions found at http://www.regulations.gov plants for nectar feeding (at least 24 and conditions that will have positive under Docket No. FWS–R4–ES–2020– have been identified as plants upon effects on the species, such as any 0083. which they feed (Morales and Estremera existing regulatory mechanisms or To assess Puerto Rican harlequin 2018, entire)), and a water source within conservation efforts. The Secretary butterfly viability, we used the three 1 km (0.6 mi) for hydration. Suitable

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habitat consists of forests that may vary We considered an area to have an after we had completed our SSA in June in stage of succession and age, with 50 extant population if at least two of the 2019 (Rodriquez 2019, pers. comm.). to 85 percent canopy cover. The species four life stages (egg, caterpillar, Including the initial discovery of 3 occurs both in large blocks of chrysalis, adult) were observed in the adults, two more visits of the site were undisturbed forest and in forest patches course of repeated surveys conducted in made in the summer of 2019. In one of interspersed with agricultural lands, one year. All populations have been those visits, 43 caterpillars were houses, and roads. In areas that are a observed as recently as 2018. Each of observed and in the other visit, 9 mix of developed lands and forest, the the six populations likely functions as a caterpillars and 3 chrysalides were species needs forested corridors (with metapopulation, a discrete population observed (Pacheco 2020, pers. com.). O. spinosa covering more than 30 composed of local populations Habitat metrics that, in combination percent) connecting breeding sites (subpopulations) with individuals that with relative population size estimates (Velez 2014, entire). can move infrequently from one enable estimates of resiliency, have not subpopulation to another (Hanski and yet been analyzed. Therefore, in the Current Conditions Gilpin 1991, pp. 4, 7). resiliency discussion below, where we Currently, the Puerto Rican harlequin Population size is an important refer to five populations instead of six, butterfly populations occur in six areas: component of resiliency. However, we are omitting the Guajataca (1) Isabela, Quebradillas, and Camuy quantitative population size estimates population. (hereafter referred to as the IQC (statistically derived) for the Puerto Because quantitative population size population); (2) Guajataca; (3) Rı´o Abajo Rican harlequin butterfly are not estimates are lacking, we assessed the Commonwealth Forest; (4) Rı´o available. There have been several resiliency for five Puerto Rican Encantado; (5) Maricao Commonwealth surveys for the species since 2003, harlequin butterfly populations using Forest; and (6) Susu´ a Commonwealth although survey methods and objectives habitat quality and estimates of relative Forest. The IQC, Guajataca, Rı´o Abajo, have varied. Most data consist of counts population size (see Table 1, below) in and Rı´o Encantado populations occur in of the various life stages during single our SSA report (Service 2019, entire). the northwestern portion of Puerto Rico, survey events. In some areas, there are We weighted a single population metric in the Northern Karst physiographic valid reports of species occurrence (by (relative population size) such that it region. The Maricao and Susu´ a species experts) but no count data. had equal influence on resiliency as populations occur in the west-central Thus, the estimated abundance of the four habitat metrics combined, to yield portion of the island, in the West-central species per population varies according a numerical score to classify population Volcanic-serpentine physiographic to the methodology implemented during condition as ‘‘high,’’ ‘‘medium,’’ or region. A seventh population occurred the survey and the source of ‘‘low’’ for five butterfly populations (see in Tallaboa, in southwestern Puerto information. Table 2, below). As such, a population Rico, in the Sothern Karst physiographic We did not assess resiliency of the with the highest level of resiliency region, but has not been observed since Guajataca population, which was would garner a score of 24 and a 1926 (Biaggi-Caballero and Lo´pez 2010, discovered on July 15, 2019, and population with the lowest level of p. 4) and is presumed extirpated. thereafter verified by Service biologists, resiliency would garner a score of 8. TABLE 1—HABITAT AND POPULATION METRICS TO SCORE PUERTO RICAN HARLEQUIN BUTTERFLY RESILIENCY

Habitat metrics Population metric Population Habitat score Habitat Vegetation clearing/ Other natural or manmade score protection Connectivity pesticide use factors Population size

1 point each; <34 percent Isolated subpopulations Areas subjected to vegeta- Subpopulations located in 0–5 adults and <100 larvae 4 4 points protected. greater than 1 km apart; tion clearing (including areas more vulnerable to observed per ha. total. habitat between popu- use of herbicides) and stochastic events (e.g., lations highly disturbed. use of pesticides for fire, severe drought, hur- mosquito control or agri- ricanes). culture. 2 points each; 34–66 per- Subpopulations within 1 km Areas where vegetation Subpopulations in areas 6–20 adults and 100–500 8 8 points cent pro- of each other; habitat be- clearing and use of herbi- with moderate vulner- larvae observed per ha. total. tected. tween subpopulations cides and pesticides ability to stochastic moderately disturbed. occur rarely. events. 3 points each; >66 percent Subpopulations within 1 km Areas where vegetation Subpopulations located in >20 adults and >500 larvae 12 12 points protected. of each other; undis- clearing and use of herbi- areas with lower vulner- per ha. total. turbed habitat between cides and pesticides are ability to stochastic subpopulations. not expected. events.

TABLE 2—CURRENT POPULATION CONDITION AND RESILIENCY SCORES

Resiliency score Population condition (habitat metrics + population metric)

Low: None ...... <11 Moderately Low: Susu´a population ...... 11–13 Moderate: IQC, Rı´o Abajo, Rı´o Encantado populations ...... 14–18 Moderately High: Maricao population ...... 19–21 High: None ...... >21

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Of the five Puerto Rican harlequin regulatory mechanisms. There is constructed in the near future, land butterfly populations we assessed for evidence that the species has been owners have removed vegetation from resiliency, one is in moderately high collected for private entomology the proposed project sites, affecting the condition, three are in moderate collections and unauthorized suitability of the habitat for the butterfly condition, and one is in moderately low investigations, but there is no indication (Pacheco, 2019, pers. obs.). condition. The population with that private collecting is a widespread While 99.7 percent of the land where moderately high resiliency (Maricao activity. the IQC population occurs is privately Commonwealth Forest) occurs in land owned, the other five populations Urban Development, Habitat managed for conservation, but in this occupy areas where substantial portions Modification and Fragmentation forest the species occurs at edges of are managed for conservation (see Table trails and roads where vegetation is Habitat loss caused by urban 4, below, under Proposed Critical frequently removed and herbicides development and agricultural practices Habitat Designation), ranging from 13 applied. The population in IQC has is a primary factor influencing the percent in Rı´o Encantado to 77 percent moderate resiliency because, although it decline of the Puerto Rican harlequin in Rı´o Abajo. Development adjacent to occurs in a region that is among the butterfly, and it poses a continuing conservation lands in Puerto Rico is most heavily developed, it has the threat to the species’ viability (Barber increasing. For example, from 2000 to largest number of known 2019, p. 2). The species’ small range 2010, 90 percent of protected areas subpopulations and population size. may reflect a remnant population of a showed increases in housing in The populations in Rı´o Abajo once more widely distributed forest surrounding lands (Castro-Prieto et al. Commonwealth Forest and the Rı´o dwelling butterfly whose habitat was 2017, p. 477). Housing has increased in Encantado area have moderate diminished as forest was converted for the Northern Karst region: in 1980, there resiliency because they occur partly in other land uses in Puerto Rico (Monzon were 762,485 housing units, and in habitats managed for conservation that 2007, pp. 11–13; DRNA 2011, p.1; 2010, the number of units had increased are protected from development and Carrio´n-Cabrera 2003, entire). More than to 1,101,041 (PRPB 2014, p. 19). New other anthropogenic activities, although 90 percent of native forest in Puerto housing and the development of rural both populations are small in size. The Rico had been cleared at one point in communities requires construction of Susu´ a population has moderately low time (Miller and Lugo 2009, p. 33). The additional infrastructure (e.g., access resiliency. While the Susu´ a loss or degradation of the species’ roads, power and energy service, water Commonwealth Forest is managed for habitat continues in the present time service, and communication, among conservation, the species occurs along, and results from conversion of native others), compounding habitat loss and or at the edges of, trails where forest for agriculture or urbanization; fragmentation. Communications vegetation is frequently removed and increased construction and use of infrastructure for cellular phone and herbicides applied, and the population highways and roads (vehicle traffic); related technologies has proliferated in size is very low. Averaging the and land management regimes Puerto Rico, including towers for resiliency of the five populations, we (vegetation clearance, grazing, and cellular communication, radio, estimated that species resiliency haying). television, military, and governmental (rangewide) of the Puerto Rican The IQC population faces significant purposes. These towers are a threat to harlequin butterfly is currently threats from the existing and imminent plant species, including the host plant moderate. destruction, modification, and Oplonia spinosa, that happen to occur We assessed redundancy and curtailment of its habitat, especially loss on top of mogotes (limestone hills) or representation based on the number and of the host plant, Oplonia spinosa. mountaintops. spatial arrangement of populations. Historically in the IQC area, forests were Human-Induced Fire Current redundancy of the Puerto Rican converted to farms, pastures, or harlequin butterfly is low. The species cropland. Currently these forests are In addition to land development, is narrow ranging, with all six being converted to urban developments, human-induced fires are a threat to the populations likely to incur similar roads, recreational parks, and golf Puerto Rican harlequin butterfly. effects of a stochastic event such as a courses. Most of the suitable habitat for Although fire is not a natural event in severe storm or drought. In addition, the species, particularly in the Puerto Rico’s subtropical dry or moist with the exception of the IQC and municipality of Quebradillas, is forests (Robbins et al. 2008, p. 530), Maricao populations, the populations fragmented by residential and tourist which are the only forest types where range in size from small to very small. development. In rural areas, forest the Puerto Rican harlequin butterfly Data to assess genetic diversity and the clearing to increase grassland for cattle occurs, wildfires resulting from natural adaptive capacity it may confer are grazing is a threat to the IQC population. or anthropogenic origin are growing in lacking for the Puerto Rican harlequin Currently in the IQC, occupied habitat size and frequency across Puerto Rico butterfly. However, representation is within an area classified as a ‘‘Zone (Brandeis and Woodall 2008, p. 558; appears to be moderate to high because of Tourist Interest’’ (PRPB 2009, website Pacheco 2019, pers. obs.). In the the butterfly occurs in two data), which is an area identified as Maricao Commonwealth Forest on physiographic provinces and four having the potential to be developed to February 25, 2005, a human-induced ecological settings or life zones (Service promote tourism due to its natural fire (likely arson) burned more than 400 2019, p. 25). features and historic value. In 2010, 11 acres, with unknown effects on the residential development projects were Puerto Rican harlequin butterfly Threats under evaluation around the species’ population (Biaggi-Caballero 2010, p. Threats to the Puerto Rican harlequin habitat, possibly affecting 72.6 ac (29.4 10). In Quebradillas, the species’ habitat butterfly include habitat loss and ha) in Quebradillas (PRPB 2010, website in the area where the largest modification by development, data). By 2019, three houses had been subpopulation occurs (Puente Blanco) is mechanical clearing of vegetation, use of constructed, and another is under threatened by fires associated with pesticides (insecticides and herbicides), construction at Puente Blanco (Pacheco illicit garbage dumps (DNER, human-induced fires, changing climate, 2019, pers. obs.). While it is uncertain unpublished data 2010, p. 23). In the and insufficient enforcement of existing whether these single homes will be Susu´ a Commonwealth Forest, a garbage

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dump fire recently burned to control animal and plant pests Puerto Rican harlequin butterfly and the approximately 25 square meters (269 (Biaggi-Caballero and Lo´pez 2010, p. 9; Puerto Rican monarch subspecies square feet) of occupied butterfly habitat Barber 2019, p. 72; Pacheco 2019, pers. (Danaus plexippus portoricensis) which (Pacheco 2019, pers. obs.). This increase obs.). Puerto Rico also has a long history are members of this same family. in fires destroys and further limits the of using pesticides, mostly insecticides, Exposure to high temperature may cause availability of habitat for the butterfly. for mosquito control in and around dehydration in butterflies and is a Depending on the scale of the fires and urban areas. Fumigation programs are serious threat because of the butterflies’ the size of the population where the implemented by local government large surface-to-volume ratio (Pometto fires happen, deaths of significant authorities to control mosquito-borne 2014, p. 18). Day-fliers, such as the numbers of the butterfly population may diseases, but pesticide use guidelines Puerto Rican harlequin butterfly, likely occur. For example, if a fire damages a have not been developed for application have a high need for water because they patch of forest such that less than 1 in areas where the Puerto Rican are active during the warmest time of square mile remains, that forest patch harlequin butterfly occurs (Biaggi- the day, from 9 a.m. to 4 p.m. (Pacheco will no longer be large enough to sustain Caballero and Lo´pez 2010, p. 9), and 2019, pers. obs.). Temperature data from a viable subpopulation of the butterfly. toxicity thresholds for the species are the Puerto Rican harlequin butterfly’s In the Susu´ a fire, although only 25 unknown. The toxicological effects of range suggest the species may be square meters of forest were destroyed, pesticides to non-target butterfly species adapted to average daily maximum any killing of individuals would reduce has been documented within the temperatures ranging from 28 to 32 the likelihood of sustained viability of families Nymphalidae (which includes degrees Celsius (°C) (82 to 90 degrees the very small Susu´ a population. In the Puerto Rican harlequin butterfly), Fahrenheit (°F)) (Service 2019, p. 56). other areas with a larger population, Lycaenidae, Papilionidae, Hesperiidae, Future Conditions such as IQC, a similarly small fire and Pieridae (Mule´ et al. 2017, Salvato would not have a significant impact on 2001, Hoang et al. 2011, Eliazar and In our SSA, we used the same habitat viability. Emmel 1991, Hoang and Rand 2015, and population metrics to project future Bargar 2012, Davis et al. 1991). resiliency of the five populations that Pesticides, Herbicides, and Other were known at the time the SSA was Mechanisms of Vegetation Control Recent and Current Climate completed. We chose 25 years as the Regardless of the method, efforts to The 2018 U.S. Global Change time frame for the Puerto Rican clear vegetation or to eliminate pests are Research Program (USGCRP, entire) harlequin butterfly future conditions a significant threat to the Puerto Rican reported that the impacts of climate analysis because this time frame harlequin butterfly. Herbicides are used change are already influencing the includes at least 25 generations, thus by conservation agencies, public environment through more frequent and allowing adequate time to forecast agencies, and private organizations to more intense extreme weather and trends in threats, populations, and control vegetation in an array of areas. climate-related events, as well as habitat conditions. We projected the The use of herbicides is a current threat changes in average climate conditions. future changes in habitat based on to the Puerto Rican harlequin butterfly Globally, numerous long-term climate climate projections and by extrapolating and Oplonia spinosa, which is found on changes have been observed, including land development trends (e.g., housing the edges of roads and open areas. changes in arctic temperatures and ice, and urbanization) to 2045, and we Herbicides are frequently used to and widespread changes in estimated changes in population control woody vegetation and weeds precipitation amounts, ocean salinity, demographics based on the anticipated along access roads and on private wind patterns, and aspects of extreme changes to the condition of the habitat. properties. Mechanical removal of weather, including droughts, heavy Unlike in our analysis of current vegetation also impacts the Puerto Rican precipitation, heat waves, and the condition, relative population size harlequin butterfly. Even in areas used intensity of tropical cyclones (IPCC could not be directly assessed. The for recreation, O. spinosa is trimmed or 2007b, p. 2). In addition, the habitat metrics are the drivers that may completely removed along trails and in aforementioned vegetation removal and promote changes in future population picnic areas. Homeowners often clear road construction can elevate local (unless the current population size is so vegetation to have unobstructed views temperatures. small that extirpation risk of a single of the landscape. Although we do not have information stochastic event is high). Therefore, Although Oplonia spinosa is a showing Puerto Rican harlequin because there was more certainty in commonly occurring plant in Puerto butterflies harmed due to elevated high projecting habitat changes than Rico, cutting down the plant or killing temperatures, species such as the Puerto demographic changes, we weighted the plant with herbicides will result in Rican harlequin butterfly, which are habitat to have twice as much influence death of eggs or caterpillars that are on dependent on specialized habitat types, as population on resiliency scores it because, even if the plant remains on are limited in distribution, or have (Service 2019, p. 86). the ground, it will no longer provide the become restricted in their range, are We projected population resiliency tender new growth needed for most susceptible to the impacts of based on three plausible scenarios: caterpillars to feed. Additionally, climate change. As indicated by studies Worst case, best case, and most likely. clearing O. spinosa reduces on other butterflies in the family We selected these scenarios to match reproductive output because it reduces Nymphalidae (e.g., monarch butterfly the most recent climate change the number of viable sites for egg laying, (Danaus plexippus)), temperature likely scenarios described for Puerto Rico and removing other plant species that has a significant influence on adult and (Henareh Khalyani et al. 2016, entire), are nectar sources likely increases stress larval metabolism, growth rate, and and we focused on temperature and on adult butterflies. metamorphosis and may affect seasonal precipitation projections, which are Pesticides, which include insecticides colonization and migrations (Rawlins important environmental variables for and herbicides, are commonly used and Lederhouse 1981, p. 403; Wong et Puerto Rican harlequin butterfly throughout the range of the Puerto Rican al. 2015, p. 15; Koda and Nakamura viability. The models in this publication harlequin butterfly, on crop fields, along 2010, p. 29; Franke et al. 2019, p. 1). used the mid-high (A2), mid-low (A1B), public roads, and on private properties These same effects may occur to the and low (B1) Intergovernmental Panel

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on Climate Change (IPCC) global expected to decrease, the amount of (representing the worst-case, most- emissions scenarios, which were precipitation produced during hurricane likely, and best-case scenarios, precursors to the current IPCC scenarios events is expected to increase (Herrera respectively). and encompass ‘‘representative et al. 2018, p. 1). Climate models Resiliency metric scoring for each concentration pathways’’ (RCPs) 4.5 and consistently project that significant scenario and population is presented in 8.5. Based on our future climate drying in the U.S. Caribbean region will our SSA report (Service 2019, pp. 86– occur by the middle of the century projections, temperatures are expected 90). In summary, three populations (Rı´o (USGCRP 2018, p. 820). The reductions to increase by 2.8 to 3.3 °C (5.04 to 5.94 Abajo, Rı´o Encantado, and Susu´ a) are in annual precipitation and increases in °F) (best case scenario) to 4.6 to 5.5 °C projected to become extirpated in the (8.28 to 9.9 °F) (worst case scenario). In drying are expected to cause shifts in several life zones in Puerto Rico, with foreseeable future under both the worst- the most likely scenario temperatures case and most-likely scenarios (see would increase 3.9 to 4.6 °C (7.02 to potential loss of subtropical rainforest, moist forest and wet forest, and the Table 3, below). Under the best-case 8.28 °F), resulting in temperatures appearance of tropical dry forest and scenario, the condition of the Maricao ranging from approximately 31 °C (88 population decreases slightly, from ° ° ° very dry forest during this century F) to 36 C (97 F) for all known Puerto (Henareh Khalyani et al. 2016, p. 275). moderately high to moderate, and the Rican harlequin butterfly populations Such shifts in life zones would likely Susu´ a population improves slightly, by 2045. This projected increase in further reduce the range of the Puerto from low to moderately low, while the maximum temperatures is significantly Rican harlequin butterfly. condition of the other three populations ° greater than the current 28 to 32 C (82 To forecast land development, we is unchanged. In Susu´ a, declines in to 90 °F) maximum temperatures to used the most recent trend data (2000– habitat and the small size of the which the butterfly is adapted. Together 2010) for housing and human population increase the likelihood of with temperature increases, the population growth (Castro-Prieto et al. future extirpation. Given the currently Caribbean is expected to get more 2017, pp. 477–479). For the region very small populations in Rı´o Abajo and frequent and more severe droughts from where each of the five butterfly Rı´o Encantado, even small declines in reduced precipitation and to have an populations occurs, we projected habitat condition are likely to result in increased evapotranspiration ratio. development trends at current rates, half extirpation under the worst-case and Although overall precipitation is of current rates, and no growth most-likely scenarios.

TABLE 3—SUMMARY OF PUERTO RICAN HARLEQUIN BUTTERFLY RESILIENCY UNDER THREE FUTURE SCENARIOS

Percentage Population Current Worst-case scenario Most-likely scenario Best-case scenario of total population 1

IQC ...... Moderate ...... Low ...... Low ...... Moderate ...... 53 Rı´o Abajo ...... Moderate ...... Extirpated ...... Extirpated ...... Moderate ...... <5 Rı´o Encantado ...... Moderate ...... Extirpated ...... Extirpated ...... Moderate ...... <5 Maricao ...... Moderately High ...... Low ...... Moderately Low ...... Moderate ...... 21 Susu´a ...... Low ...... Extirpated ...... Extirpated ...... Moderately Low ...... 16 1 Current estimate, based on counts of adults (Barber 2018).

According to our most-likely and scientific information documented in Determination of Puerto Rican worst-case scenarios, all areas and life the SSA report, we have not only Harlequin Butterfly’s Status zones that currently harbor Puerto Rican analyzed individual effects on the harlequin butterfly populations are species, but we have also analyzed their Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 expected to become drier and warmer, potential cumulative effects. We CFR part 424) set forth the procedures with some (i.e., Rı´o Abajo and Rı´o incorporate the cumulative effects into for determining whether a species meets Encantado) progressing from tropical our SSA analysis when we characterize moist forest to tropical dry forest. Under the definition of an endangered species the current and future condition of the or a threatened species. The Act defines these scenarios, and with only two species. Our assessment of the current remaining populations, the species ‘‘endangered species’’ as a species in and future conditions is iterative and would suffer a substantial decline in danger of extinction throughout all or a encompasses and incorporates the representation (with or without survival significant portion of its range, and of the recently discovered Guajataca threats individually and cumulatively ‘‘threatened species’’ as a species likely population, for which there is because it accumulates and evaluates to become an endangered species within insufficient information to forecast its the effects of all the factors that may be the foreseeable future throughout all or resiliency). Given the predicted influencing the species, including a significant portion of its range. The extirpation of most (three of five) threats and conservation efforts. Act requires that we determine whether populations under our most-likely and Because the SSA framework considers a species meets the definition of worst-case scenarios, population not just the presence of the factors, but ‘‘endangered species’’ or ‘‘threatened redundancy will most likely be reduced to what degree they collectively species’’ because of any of the following in the future. Moreover, the only influence risk to the entire species, our factors: (A) The present or threatened remaining populations in IQC and assessment integrates the cumulative destruction, modification, or Maricao will most likely become effects of the factors and replaces a curtailment of its habitat or range; (B) smaller, more fragmented, and subject to standalone cumulative effects analysis. overutilization for commercial, greater environmental stress. recreational, scientific, or educational We note that, by using the SSA purposes; (C) disease or predation; (D) framework to guide our analysis of the the inadequacy of existing regulatory

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mechanisms; or (E) other natural or Law No. 241 prohibits modification of and representation of the species are manmade factors affecting its continued any natural habitat without a permit sufficient to sustain populations if existence. from the DNER Secretary. Law No. 241 stochastic or catastrophic events occur and Regulation 6766 could provide within its range. It is unlikely that all of Status Throughout All of Its Range adequate protection for the species. the ‘‘moderately’’ and ‘‘moderately After evaluating threats to the species Although these laws and regulations are high’’ resiliency populations would and assessing the cumulative effect of in place, the species’ habitat continues simultaneously become extirpated the threats under the section 4(a)(1) to be modified, destroyed, or fragmented under current conditions. Thus, after factors, we determined that the species’ by urban development and vegetation assessing the best available information, distribution and abundance has been clearing (Biaggi-Caballero 2010, p. 9). we conclude that the Puerto Rican reduced across its range, as Because the host plant is considered a harlequin butterfly is not currently in demonstrated by the extirpation of one common species associated with edges danger of extinction. We, therefore, of seven known populations. In of forested lands, it is not directly proceed with determining whether the addition, the best scientific and protected by Law No. 241 or Regulation Puerto Rican harlequin butterfly is a commercial data available indicate that 6766. Therefore, despite existing threatened species—likely to become the species’ range and abundance has regulatory mechanisms that could endangered within the foreseeable been reduced because many areas that ameliorate them, the threats of habitat future—throughout all of its range. were once suitable habitat, and therefore degradation or loss, the improper The threats currently acting on the likely to have harbored populations, application of pesticides, and human- species include habitat loss and have been developed and altered induced fires continue to negatively degradation, in addition to pesticide use (deforested and host plant removed or impact the viability of the Puerto Rican and human-induced fires, all of which reduced), such that they are no longer harlequin butterfly. contribute to fragmentation and habitable. Neither Factor B (overutilization for isolation of populations. The best The condition of one population, commercial, recreational, scientific, or available information indicates that discovered approximately one year ago, educational purposes) nor Factor C current threats will continue, and the has not been assessed. Of the other five (disease or predation) appears to be a magnitude of the climate change threat populations, one currently has significant threat to the butterfly. will increase in the foreseeable future. moderately high resiliency, three have Regarding Factor B, an undetermined We anticipate that this increase in moderate resiliency, and one has number of Puerto Rican harlequin threats from climate change will result moderately low resiliency. Although the butterflies have been collected for in increased daily high temperatures, species’ range is naturally narrow, the scientific purposes and deposited in decreases in annual precipitation, and six populations are distributed in two universities and private collections shifts to drier life zones—which, when physiographic provinces and four life (Biaggi-Caballero 2011, pers. comm.). coupled with the continuation of zones. Given the distance between the However, at present, few researchers are current threats, will reduce habitat, six populations and limited dispersal working with the species, and its further fragment populations, and likely ability of the species, there is virtually collection is regulated by the DNER. cause extirpations. Two of three of our no interpopulation connectivity. Three There is also evidence that the species plausible future scenarios project the of five populations are single, without has been collected for private extirpation of three of the five assessed multiple subpopulations. The other two entomology collections and populations and a decline in resiliency populations have 3 subpopulations (Rı´o unauthorized investigations, but there is of the remaining two populations. Thus, Encantado) and 13 subpopulations (IQC) no indication that this is a widespread we conclude that the Puerto Rican that are connected to their closest activity. Therefore, effects on the harlequin butterfly is likely to become neighboring subpopulations. species due to collection for in danger of extinction within the Current and ongoing threats from commercial, recreational, scientific or foreseeable future throughout all of its habitat degradation or loss (Factor A), as educational purposes (Factor B) likely range. well as improper application of are minimal. Similarly, spiders, ants, Status Throughout a Significant Portion pesticides (insecticides and herbicides), lizards, and birds have been observed of Its Range human-induced fires, and climate preying on the Puerto Rican harlequin change (Factor E), contribute to the butterfly (Service 2019, p. 59), but there Under the Act and our implementing fragmentation and isolation of are no data indicating predation is a regulations, a species may warrant populations. Regarding existing significant threat. Likewise, there is no listing if it is in danger of extinction or regulatory mechanisms (Factor D), the information indicating impacts on the likely to become so in the foreseeable DNER designated the Puerto Rican species from disease. Therefore, we do future throughout all or a significant harlequin butterfly as critically not find Factor C to be a threat to the portion of its range. In 2014, the Service endangered under Commonwealth Law species. and the National Marine Fisheries No. 241 and Regulation 6766 (DNER As noted previously, six populations Service (jointly, the Services) developed 2004, p. 42; DNER 2010, unpublished occur in the presence of current threats a ‘‘Policy on Interpretation of the Phrase data, p. 1). Article 2 of Regulation 6766 and are dispersed across different ‘Significant Portion of Its Range’ in the includes all prohibitions and states that ecotones (four life zones) and two Endangered Species Act’s Definitions of the designation as ‘‘critically physiographic regions. Of the five ‘Endangered Species’ and ‘Threatened endangered’’ prohibits any person from populations assessed in the SSA report, Species’ ’’ (2014 Policy; 79 FR 37578, taking the species; to ‘‘take’’ includes to three have moderate resiliency and one July 1, 2014). However, the court in harm, possess, transport, destroy, has moderately high resiliency. As such, Center for Biological Diversity v. import, or export individuals, eggs, or the resiliency, redundancy, and Everson, 2020 WL 437289 (D.D.C. juveniles without previous representation of the species are not January 28, 2020), vacated the aspect of authorization from the Secretary of the optimal because a few populations with the 2014 Policy that provided that the DNER (DNER 2004, p. 28). The DNER reduced resiliency could become Services do not undertake an analysis of has not designated critical habitat for extirpated due to a catastrophe. significant portions of a species’ range if the species under Regulation 6766, but However, the resiliency, redundancy, the species warrants listing as

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threatened throughout all of its range. range. We examined the following each of those portions, as well as Therefore, we proceed to evaluating threats: Urban and agricultural rangewide, is threatened. whether the species is endangered in a development causing habitat loss or The best scientific and commercial significant portion of its range—that is, degradation, pesticide use (including data available indicate that the time whether there is any portion of the insecticides and herbicides), human- horizon on which the species’ response species’ range for which both (1) the induced fire, and climate change. While to the combined threats is likely to portion is significant, and (2) the species most of these threats are current and are affect the viability of the species is the is in danger of extinction in that expected to continue, the species will foreseeable future. In addition, the best portion. Depending on the case, it might experience the majority of the effects of scientific and commercial data available be more efficient for us to address the climate change in the foreseeable future. do not indicate that any of the threats ‘‘significance’’ question or the ‘‘status’’ Collectively these threats will contribute to the species and the species’ responses question first. We can choose to address to additional habitat loss, fragmentation to those threats are more immediate in either question first. Regardless of of populations, and reductions in any portions of the species’ range. Therefore, we determine that the Puerto which question we address first, if we population resiliency, including likely Rican harlequin butterfly is not in reach a negative answer with respect to extirpation of three populations. the first question that we address, we do danger of extinction now in any portion not need to evaluate the other question The threat of development and habitat of its range, but that the species is likely for that portion of the species’ range. degradation or loss is concentrated in to become in danger of extinction Following the court’s holding the Northern Karst region, particularly within the foreseeable future throughout referenced above, we now consider in the areas of Isabela, Quebradillas, and all of its range. This analysis is whether there are any significant Camuy (IQC) (see Threats, above). consistent with the courts’ holdings in portions of the species’ range where the Although there is a concentration of Desert Survivors v. Department of the species is in danger of extinction now threats in the IQC, it contains the Interior, No. 16–cv–01165–JCS, 2018 (i.e., endangered). In undertaking this greatest number of subpopulations and WL 4053447 (N.D. Cal. Aug. 24, 2018), analysis for the Puerto Rican harlequin the largest population size among the and Center for Biological Diversity v. butterfly, we choose to address the six Puerto Rican harlequin butterfly Jewell, 248 F. Supp. 3d, 946, 959 (D. significance question first. After populations, so it has moderate Ariz. 2017). evaluating whether any portions of the resiliency to environmental disturbance. Determination of Status species’ range are significant, we The remainder of the Northern Karst address the status question, considering region (portion of the range) includes Our review of the best available information pertaining to the geographic the Rı´o Abajo and Rı´o Encantado areas, scientific and commercial information distribution of both the species and the each with a moderately resilient indicates that the Puerto Rican threats that the species faces to population, and the Guajataca harlequin butterfly meets the definition determine whether the species is population, whose status is currently of a threatened species. Therefore, we endangered in any of those significant undetermined. Given the known current propose to list the Puerto Rican portions of the range. status (moderate resiliency) of the harlequin butterfly as a threatened Throughout the range of the Puerto populations in three occupied areas in species in accordance with sections Rican harlequin butterfly, there are two the Northern Karst portion of the range 3(20) and 4(a)(1) of the Act. portions that may be significant: The (IQC, Rı´o Abajo, and Rı´o Encantado), Available Conservation Measures Northern Karst Region and the West- plus an additional area with a central Volcanic-serpentine Region. The Conservation measures provided to population of undetermined status two regions may be significant because, species listed as endangered or (Guajataca), the species in this portion within each one, the physiography and threatened species under the Act is not currently in danger of extinction. life zones are unique, and the include recognition, recovery actions, The species also is not currently in populations contained in each region requirements for Federal protection, and danger of extinction in the West-central may harbor adaptations specific to their prohibitions against certain practices. regional environment. We therefore Volcanic-serpentine region, because the Recognition through listing results in consider information pertaining to the condition of the population in this public awareness, and conservation by geographic distribution of the species portion of the range is sufficient to Federal, State, Tribal, and local and of the threats to the species in both maintain viability in the presence of agencies, private organizations, and of those significant portions of its range ongoing threats. Additional factors individuals. The Act encourages to determine whether the species is reducing the current or near-term cooperation with the States and other endangered in either portion. likelihood of extirpation in the West- countries and calls for recovery actions The statutory difference between an central Volcanic-serpentine region are: to be carried out for listed species. The endangered species and a threatened (1) The occurrence of the species on protection required by Federal agencies species is the time horizon in which the lands with large portions managed for and the prohibitions against certain species becomes in danger of extinction; conservation, and (2) the absence of activities are discussed, in part, below. an endangered species is in danger of intense development (which would The primary purpose of the Act is the extinction now while a threatened itself present a concentration of threats) conservation of endangered and species is not in danger of extinction like that occurring in the Northern Karst threatened species and the ecosystems now but is likely to become so in the region. The two significant portions of upon which they depend. The ultimate foreseeable future. In neither potential the range (the Northern Karst region and goal of such conservation efforts is the significant portion of its range is the the West-central Volcanic-serpentine recovery of these listed species, so that Puerto Rican harlequin butterfly in region) together compose the entire they no longer need the protective danger of extinction now. Thus, we range of the species, and the measures of the Act. Section 4(f) of the considered the time horizon for the populations in each of those portions Act calls for the Service to develop and threats that are driving the Puerto Rican are likely to become in danger of implement recovery plans for the harlequin butterfly to warrant listing as extinction in the foreseeable future. conservation of endangered and a threatened species throughout all of its Therefore, the status of the species in threatened species. The recovery

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planning process involves the academic community, and the effect of a proposed listing on identification of actions that are nongovernmental organizations. In proposed and ongoing activities within necessary to halt or reverse the species’ addition, pursuant to section 6 of the the range of the species proposed for decline by addressing the threats to its Act, Puerto Rico would be eligible for listing. The discussion below regarding survival and recovery. The goal of this Federal funds to implement protective regulations under section 4(d) process is to restore listed species to a management actions that promote the of the Act complies with our policy (see point where—as secure, self-sustaining, protection or recovery of the Puerto Provisions of the Proposed 4(d) Rule). and functioning components of their Rican harlequin butterfly. Information ecosystems—they no longer meet the on our grant programs that are available II. Proposed Rule Issued Under Section definition of an endangered species or a to aid species recovery can be found at: 4(d) of the Act threatened species. http://www.fws.gov/grants. Background Recovery planning consists of Although the Puerto Rican harlequin Section 4(d) of the Act contains two preparing draft and final recovery plans, butterfly is only proposed for listing sentences. The first sentence states that beginning with the development of a under the Act at this time, please let us the Secretary shall issue such recovery outline and making it available know if you are interested in regulations as he deems necessary and to the public within 30 days of a final participating in recovery efforts for this advisable to provide for the listing determination. The recovery species. Additionally, we invite you to conservation of species listed as outline guides the immediate submit any new information on this threatened. The U.S. Supreme Court has implementation of urgent recovery species whenever it becomes available noted that statutory language like actions and describes the process to be and any information you may have for ‘‘necessary and advisable’’ demonstrates used to develop a recovery plan. recovery planning purposes (see FOR a large degree of deference to the agency Revisions of the plan may be done to FURTHER INFORMATION CONTACT). (see Webster v. Doe, 486 U.S. 592 address continuing or new threats to the Section 7(a) of the Act requires (1988)). Conservation is defined in the species, as new substantive information Federal agencies to evaluate their becomes available. The recovery plan actions with respect to any species that Act to mean the use of all methods and also identifies recovery criteria for is proposed or listed as an endangered procedures which are necessary to bring review of when a species may be ready or threatened species and with respect any endangered species or threatened for reclassification from endangered to to its critical habitat, if any is species to the point at which the threatened (‘‘downlisting’’) or removal designated. Regulations implementing measures provided pursuant to the Act from protected status (‘‘delisting’’), and this interagency cooperation provision are no longer necessary. Additionally, methods for monitoring recovery of the Act are codified at 50 CFR part the second sentence of section 4(d) of progress. Recovery plans also establish 402. Section 7(a)(4) of the Act requires the Act states that the Secretary may by a framework for agencies to coordinate Federal agencies to confer with the regulation prohibit with respect to any their recovery efforts and provide Service on any action that is likely to threatened species any act prohibited estimates of the cost of implementing jeopardize the continued existence of a under section 9(a)(1), in the case of fish recovery tasks. Recovery teams species proposed for listing or result in or wildlife, or section 9(a)(2), in the case (composed of species experts, Federal destruction or adverse modification of of plants. Thus, the combination of the and State agencies, nongovernmental proposed critical habitat. If a species is two sentences of section 4(d) provides organizations, and stakeholders) are listed subsequently, section 7(a)(2) of the Secretary with wide latitude of often established to develop recovery the Act requires Federal agencies to discretion to select and promulgate plans. When completed, the recovery ensure that activities they authorize, appropriate regulations tailored to the outline, draft recovery plan, and the fund, or carry out are not likely to specific conservation needs of the final recovery plan will be available on jeopardize the continued existence of threatened species. The second sentence our website (http://www.fws.gov/ the species or destroy or adversely grants particularly broad discretion to endangered). modify its critical habitat. If a Federal the Service when adopting the Implementation of recovery actions action may affect a listed species or its prohibitions under section 9. generally requires the participation of a critical habitat, the responsible Federal The courts have recognized the extent broad range of partners, including other agency must enter into consultation of the Secretary’s discretion under this Federal agencies, States, with the Service. standard to develop rules that are Commonwealths, Tribes, Federal agency actions within the appropriate for the conservation of a nongovernmental organizations, species’ habitat that may require particular species. For example, courts businesses, and private landowners. conference or consultation or both as have upheld rules developed under Examples of recovery actions include described in the preceding paragraph section 4(d) as a valid exercise of agency habitat restoration (e.g., restoration of include management and any other authority where they prohibited take of native vegetation), research, captive landscape-altering activities funded or threatened wildlife, or include a limited propagation and reintroduction, and authorized by the U.S. Fish and Wildlife taking prohibition (see Alsea Valley outreach and education. The recovery of Service, Natural Resources Conservation Alliance v. Lautenbacher, 2007 U.S. many listed species cannot be Service, Animal and Plant Health Dist. Lexis 60203 (D. Or. 2007); accomplished solely on Federal lands Inspection Service, Federal Highway Washington Environmental Council v. because their range may occur primarily Administration, and Federal National Marine Fisheries Service, 2002 or solely on non-Federal lands. To Communications Commission. U.S. Dist. Lexis 5432 (W.D. Wash. achieve recovery of these species It is our policy, as published in the 2002)). Courts have also upheld 4(d) requires cooperative conservation efforts Federal Register on July 1, 1994 (59 FR rules that do not address all of the on private, State, and Tribal lands. 34272), to identify to the maximum threats a species faces (see State of If this species is listed, funding for extent practicable at the time a species Louisiana v. Verity, 853 F.2d 322 (5th recovery actions will be available from is listed, those activities that would or Cir. 1988)). As noted in the legislative a variety of sources, including Federal would not constitute a violation of history when the Act was initially budgets, State programs, and cost-share section 9 of the Act. The intent of this enacted, ‘‘once an animal is on the grants for non-Federal landowners, the policy is to increase public awareness of threatened list, the Secretary has an

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almost infinite number of options affect the species in the foreseeable • Take results from actions of an available to him with regard to the future by fragmenting and reducing employee or agent of one of the Services permitted activities for those species. He habitat, the critical component of which or of a State conservation agency that is may, for example, permit taking, but not is Oplonia spinosa, the sole host plant operating under a conservation program importation of such species, or he may species for egg laying and larval feeding. pursuant to the terms of a cooperative choose to forbid both taking and A range of activities have the agreement with the Service; importation but allow the transportation potential to affect the Puerto Rican • Take is in defense of human life; of such species’’ (H.R. Rep. No. 412, harlequin butterfly. In particular, and 93rd Cong., 1st Sess. 1973). activities that remove the host plant or • Take results from actions taken by Exercising this authority under clear forested land can harm or kill representatives of one of the Services or section 4(d), we have developed a Puerto Rican harlequin butterflies, of a State conservation agency to aid a proposed rule that is designed to reducing population size and viability. sick specimen or to dispose of, salvage, address the Puerto Rican harlequin There is evidence that the butterfly has or remove a dead specimen that is butterfly’s specific threats and been taken for private collections reported to the Office of Law conservation needs. Although the (Service 2019, p. 45), although there is Enforcement. statute does not require us to make a no indication that this is a widespread We also propose to allow Federal and ‘‘necessary and advisable’’ finding with activity or is a major threat. Therefore, State law enforcement officers to respect to the adoption of specific regulating activities that remove host possess, deliver, carry, transport or ship prohibitions under section 9, we find plant or forested habitat—including any Puerto Rican harlequin butterflies that this rule as a whole satisfies the construction or maintenance of roads or taken in violation of the Act as requirement in section 4(d) of the Act to trails, buildings, utility corridors, or necessary in performing their official issue regulations deemed necessary and communications towers—would help duties. advisable to provide for the preserve remaining populations by In part, these exceptions to the conservation of the Puerto Rican slowing the butterfly’s rate of decline, prohibitions recognize the special and harlequin butterfly. As discussed above and decrease synergistic, negative unique relationship with our under Summary of Biological Status and effects from other threats. Commonwealth natural resource agency Threats, we have concluded that the Under the Act, ‘‘take’’ means to partners in contributing to conservation Puerto Rican harlequin butterfly is harass, harm, pursue, hunt, shoot, of listed species. Commonwealth likely to become in danger of extinction wound, kill, trap, capture, or collect, or agencies often possess scientific data within the foreseeable future primarily to attempt to engage in any such and valuable expertise on the status and due to urban development, habitat conduct. Some of these provisions have distribution of endangered, threatened, modification and fragmentation, human- been further defined in regulations at 50 and candidate species of wildlife and induced fire, pesticide use (including CFR 17.3. Take can result knowingly or plants. Commonwealth agencies, insecticides and herbicides), and otherwise, by direct and indirect because of their authorities and their climate change. The provisions of this impacts, intentionally or incidentally. close working relationships with local proposed 4(d) rule would promote Regulating incidental and intentional governments and landowners, are in a conservation of the Puerto Rican take would help the species maintain unique position to assist the Services in harlequin butterfly by encouraging population size and resiliency. implementing all aspects of the Act. In management of the landscape in ways We may issue permits to carry out this regard, section 6 of the Act provides that meet both land management otherwise prohibited activities, that the Service shall cooperate to the considerations and the species’ including those described above, maximum extent practicable with the conservation needs. The provisions of involving threatened wildlife under Commonwealth in carrying out this proposed rule are one of many tools certain circumstances. Regulations programs authorized by the Act. that we would use to promote the governing permits are codified at 50 Therefore, any qualified employee or conservation of the Puerto Rican CFR 17.32. With regard to threatened agent of a Commonwealth conservation harlequin butterfly. This proposed 4(d) wildlife, a permit may be issued for the agency that is a party to a cooperative rule would apply only if and when we following purposes: For scientific agreement with the Service in make final the listing of the Puerto purposes, to enhance propagation or accordance with section 6(c) of the Act, Rican harlequin butterfly as a survival, for economic hardship, for who is designated by his or her agency threatened species. zoological exhibition, for educational for such purposes, would be able to purposes, for incidental taking, or for conduct activities designed to conserve Provisions of the Proposed 4(d) Rule special purposes consistent with the the Puerto Rican harlequin butterfly that This proposed 4(d) rule would purposes of the Act. may result in otherwise prohibited take provide for the conservation of the There are also certain statutory for wildlife without additional Puerto Rican harlequin butterfly by exceptions from the prohibitions, which authorization. prohibiting the following activities, are found in sections 9 and 10 of the In addition to the exceptions to the except as otherwise authorized or Act, and other standard exceptions from prohibitions described above, we permitted: Importing or exporting; take; the prohibitions, which are found in our propose certain species-specific possession and other acts with regulations at 50 CFR part 17, subparts exceptions to the prohibitions to unlawfully taken specimens; delivering, C and D. Below, we describe these provide for the conservation of the receiving, transporting, or shipping in exceptions to the prohibitions that we Puerto Rican harlequin butterfly. Under interstate or foreign commerce in the are proposing for the Puerto Rican our proposed 4(d) rule, take of the course of commercial activity; or selling harlequin butterfly. Puerto Rican harlequin butterfly that is or offering for sale in interstate or Under our proposed 4(d) rule, take of incidental to the following otherwise foreign commerce. the Puerto Rican harlequin butterfly lawful activities would not be Threats to the species are noted above would not be prohibited in the prohibited: in this section and described in detail following instances: (1) Normal agricultural practices, under Summary of Biological Status and • Take is authorized by a permit including pesticide use, which are Threats. These threats are expected to issued in accordance with 50 CFR 17.32; carried out in accordance with any

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existing regulations, permit and label eggs, caterpillars, or chrysalises), determination that such areas are requirements, and best management including transport across State lines essential for the conservation of the practices, as long as the practices do not and international boundaries, except for species. include clearing or disturbing forest or properly documented antique Our regulations at 50 CFR 424.02 Oplonia spinosa to create or expand specimens of these taxa at least 100 define the geographical area occupied agricultural areas, or applying pesticides years old, as defined by section 10(h)(1) by the species as an area that may illegally (i.e., in violation of label of the Act; generally be delineated around species’ restrictions) in or adjacent to habitat (2) Unauthorized modification, occurrences, as determined by the known to be occupied by Puerto Rican removal, or destruction of Oplonia Secretary (i.e., range). Such areas may harlequin butterfly that may result in spinosa plants that are occupied by the include those areas used throughout all death or injury of adults, eggs, larvae, or Puerto Rican harlequin butterfly and or part of the species’ life cycle, even if pupae. that may result in death or injury of not used on a regular basis (e.g., (2) Normal residential and urban adults, eggs, larvae, or pupae; and migratory corridors, seasonal habitats, activities, such as mowing, weeding, (3) Illegal pesticide applications (i.e., and habitats used periodically, but not edging, and fertilizing. in violation of label restrictions) in or solely by vagrant individuals). (3) Maintenance of recreational trails adjacent to (due to spray drift concerns) Conservation, as defined under in Commonwealth Forests by habitat known to be occupied by Puerto section 3 of the Act, means to use and mechanically clearing vegetation, only Rican harlequin butterfly that may the use of all methods and procedures when approved by or under the result in death or injury of adults, eggs, that are necessary to bring an auspices of the DNER, or conducted on larvae, or pupae. endangered or threatened species to the lands established by private Questions regarding whether specific point at which the measures provided organizations or individuals solely for activities would constitute a violation of pursuant to the Act are no longer conservation or recreation. section 9 of the Act should be directed necessary. Such methods and (4) Habitat management or restoration to the Caribbean Ecological Services procedures include, but are not limited activities expected to provide a benefit Field Office (see FOR FURTHER to, all activities associated with to Puerto Rican harlequin butterfly or INFORMATION CONTACT). scientific resources management such as other sensitive species, including Nothing in this proposed 4(d) rule research, census, law enforcement, removal of nonnative, invasive plants. would change in any way the recovery habitat acquisition and maintenance, These activities must be coordinated planning provisions of section 4(f) of the propagation, live trapping, and with and reported to the Service in Act, the consultation requirements transplantation, and, in the writing and approved the first time an under section 7 of the Act, or the ability extraordinary case where population individual or agency undertakes them. of the Service to enter into partnerships pressures within a given ecosystem (5) Projects requiring removal of the for the management and protection of host plant to access and remove illicit cannot be otherwise relieved, may the Puerto Rican harlequin butterfly. include regulated taking. garbage dumps that are potential However, interagency cooperation may sources of intentionally set fires, Critical habitat receives protection be further streamlined through planned under section 7 of the Act through the provided such projects are conducted in programmatic consultations for the coordination with and reported to the requirement that Federal agencies species between Federal agencies and ensure, in consultation with the Service, Service. the Service, where appropriate. We ask (6) Fruit fly trapping by the U.S. that any action they authorize, fund, or the public, particularly Commonwealth Department of Agriculture’s Animal and carry out is not likely to result in the agencies and other interested Plant Health Inspection Service, destruction or adverse modification of stakeholders that may be affected by the provided trapping activities do not critical habitat. The designation of proposed 4(d) rule, to provide disturb the host plant. critical habitat does not affect land These activities, on rare occasion, comments and suggestions regarding ownership or establish a refuge, may result in a limited amount of take. additional guidance and methods that wilderness, reserve, preserve, or other For example, a branch of Oplonia the Service could provide or use, conservation area. Designation also does spinosa with butterfly eggs may be respectively, to streamline the not allow the government or public to trimmed off the plant during lawn implementation of this proposed 4(d) access private lands, nor does maintenance, or a plant with caterpillars rule (see Information Requested, above). designation require implementation of on it might get trampled during habitat III. Critical Habitat restoration, recovery, or enhancement restoration. While such actions would measures by non-Federal landowners. Background affect individuals of the species, effects Where a landowner requests Federal to populations would be minimal. Critical habitat is defined in section 3 agency funding or authorization for an Additionally, habitat restoration of the Act as: action that may affect a listed species or activities and garbage dump removal, (1) The specific areas within the critical habitat, the Federal agency which may cause limited take, would geographical area occupied by the would be required to consult with the contribute to conservation of Puerto species, at the time it is listed in Service under section 7(a)(2) of the Act. Rican harlequin butterfly populations accordance with the Act, on which are However, even if the Service were to by expanding habitat suitable for the found those physical or biological conclude that the proposed activity species. features would result in destruction or adverse Based on the best available (a) Essential to the conservation of the modification of the critical habitat, the information, the following activities species, and Federal action agency and the may potentially result in violation of (b) Which may require special landowner are not required to abandon section 9 of the Act; this list is not management considerations or the proposed activity, or to restore or comprehensive: protection; and recover the species; instead, they must (1) Unauthorized collecting, handling, (2) Specific areas outside the implement ‘‘reasonable and prudent possessing, selling, delivering, carrying, geographical area occupied by the alternatives’’ to avoid destruction or or transporting of the species (adults, species at the time it is listed, upon a adverse modification of critical habitat.

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Under the first prong of the Act’s Wildlife Serv., 586 U.S. ll (November projects affecting listed species outside definition of critical habitat, areas 27, 2018). their designated critical habitat areas within the geographical area occupied Section 4 of the Act requires that we may still result in jeopardy findings in by the species at the time it was listed designate critical habitat on the basis of some cases. These protections and are included in a critical habitat the best scientific data available. conservation tools will continue to designation if they contain physical or Further, our Policy on Information contribute to recovery of this species. biological features (1) which are Standards Under the Endangered Similarly, critical habitat designations essential to the conservation of the Species Act (published in the Federal made on the basis of the best available species and (2) which may require Register on July 1, 1994 (59 FR 34271)), information at the time of designation special management considerations or the Information Quality Act (section 515 will not control the direction and protection. For these areas, critical of the Treasury and General substance of future recovery plans, habitat designations identify, to the Government Appropriations Act for habitat conservation plans (HCPs), or extent known using the best scientific Fiscal Year 2001 (Pub. L. 106–554; H.R. other species conservation planning data available, those physical or 5658)), and our associated Information efforts if new information available at biological features that are essential to Quality Guidelines provide criteria, the time of these planning efforts calls the conservation of the species (such as establish procedures, and provide for a different outcome. guidance to ensure that our decisions space, food, cover, and protected Prudency Determination habitat). In identifying those physical or are based on the best scientific data biological features that occur in specific available. They require our biologists, to Section 4(a)(3) of the Act, as occupied areas, we focus on the specific the extent consistent with the Act and amended, and implementing regulations features that are essential to support the with the use of the best scientific data (50 CFR 424.12) require that, to the life-history needs of the species, available, to use primary and original maximum extent prudent and including, but not limited to, water sources of information as the basis for determinable, the Secretary shall characteristics, soil type, geological recommendations to designate critical designate critical habitat at the time the features, prey, vegetation, symbiotic habitat. species is determined to be an species, or other features. A feature may When we are determining which areas endangered or threatened species. Our be a single habitat characteristic or a should be designated as critical habitat, regulations (50 CFR 424.12(a)(1)) state more complex combination of habitat our primary source of information is that the Secretary may, but is not characteristics. Features may include generally the information from the SSA required to, determine that a habitat characteristics that support report and information developed designation would not be prudent in the ephemeral or dynamic habitat during the listing process for the following circumstances: species. Additional information sources conditions. Features may also be (i) The species is threatened by taking may include any generalized expressed in terms relating to principles or other human activity and conservation strategy, criteria, or outline of conservation biology, such as patch identification of critical habitat can be that may have been developed for the size, distribution distances, and expected to increase the degree of such species; the recovery plan for the connectivity. threat to the species; species; articles in peer-reviewed (ii) The present or threatened Under the second prong of the Act’s journals; conservation plans developed destruction, modification, or definition of critical habitat, we can by Commonwealths and municipalities; curtailment of a species’ habitat or range designate critical habitat in areas scientific status surveys and studies; is not a threat to the species, or threats outside the geographical area occupied biological assessments; other to the species’ habitat stem solely from by the species at the time it is listed, unpublished materials; or experts’ causes that cannot be addressed through upon a determination that such areas opinions or personal knowledge. management actions resulting from are essential for the conservation of the Habitat is dynamic, and species may consultations under section 7(a)(2) of species. When designating critical move from one area to another over the Act; habitat, the Secretary will first evaluate time. We recognize that critical habitat (iii) Areas within the jurisdiction of areas occupied by the species. The designated at a particular point in time the United States provide no more than Secretary will only consider unoccupied may not include all of the habitat areas negligible conservation value, if any, for areas to be essential where a critical that we may later determine are a species occurring primarily outside habitat designation limited to necessary for the recovery of the the jurisdiction of the United States; geographical areas occupied by the species. For these reasons, a critical (iv) No areas meet the definition of species would be inadequate to ensure habitat designation does not signal that critical habitat; or the conservation of the species. In habitat outside the designated area is (v) The Secretary otherwise addition, for an unoccupied area to be unimportant or may not be needed for determines that designation of critical considered essential, the Secretary must recovery of the species. Areas that are habitat would not be prudent based on determine that there is a reasonable important to the conservation of the the best scientific data available. certainty both that the area will species, both inside and outside the We have concluded that none of those contribute to the conservation of the critical habitat designation, will five circumstances is present with species and that the area contains one continue to be subject to: (1) respect to the Puerto Rican harlequin or more of those physical or biological Conservation actions implemented butterfly. As discussed earlier in this features essential to the conservation of under section 7(a)(1) of the Act; (2) document, there is currently no the species. This requirement is regulatory protections afforded by the significant imminent threat of collection contained in the regulations at 50 CFR requirement in section 7(a)(2) of the Act or vandalism identified under Factor B 424.12(b)(2) and helps to ensure that all for Federal agencies to ensure their for this species, and identification and unoccupied areas that are included in a actions are not likely to jeopardize the mapping of critical habitat is not critical habitat designation constitute continued existence of any endangered expected to initiate any such threat. In habitat for the species, in accordance or threatened species; and (3) the our SSA and proposed listing with the recent Supreme Court opinion prohibitions found in section 9 of the determination for the Puerto Rican in Weyerhaeuser Co. v. U.S. Fish & Act. Federally funded or permitted harlequin butterfly, we determined that

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the present or threatened destruction, but not limited to, water characteristics, as a caterpillar (Service 2019, pp. 17– modification, or curtailment of habitat soil type, geological features, sites, prey, 20). or range is a threat to the Puerto Rican vegetation, symbiotic species, or other As described earlier in this document harlequin butterfly and that threat in features. A feature may be a single (see Summary of Biological Status and some way can be addressed by section habitat characteristic or a more complex Threats), the Puerto Rican harlequin 7(a)(2) consultation measures. The combination of habitat characteristics. butterfly is known from four species occurs wholly in the jurisdiction Features may include habitat populations in the Northern Karst of the United States, and we are able to characteristics that support ephemeral region and two populations in the West- identify areas that meet the definition of or dynamic habitat conditions. Features central Volcanic-serpentine region of critical habitat. Finally, there are no may also be expressed in terms relating Puerto Rico. These two ecological other circumstances the Secretary has to principles of conservation biology, regions are delineated by their geology. identified for which this designation of such as patch size, distribution Soils in the Northern Karst region are critical habitat would be not prudent. distances, and connectivity. For derived from limestone, and soils in the Therefore, because none of the example, physical features essential to West-central Volcanic serpentine region circumstances enumerated in our the conservation of the species might are derived from serpentine rock (Miller regulations at 50 CFR 424.12(a)(1) have include gravel of a particular size and Lugo 2009, p. 23). Physical been met, we have determined that the required for spawning, alkaline soil for properties specific to each substrate designation of critical habitat is prudent seed germination, protective cover for foster the development of unique for the Puerto Rican harlequin butterfly. migration, or susceptibility to flooding natural areas that harbor distinctive or fire that maintains necessary early- forest types and wildlife habitat, which, Critical Habitat Determinability successional habitat characteristics. in turn, promote high levels of Having determined that designation is Biological features might include prey biological diversity (Ceden˜ o and prudent, under section 4(a)(3) of the Act species, forage grasses, specific kinds or Breckon 1996, p. 348; Lugo et al. 2001, we must find whether critical habitat for ages of trees for roosting or nesting, p. 6). the Puerto Rican harlequin butterfly is symbiotic fungi, or a particular level of Across these two regions, the Puerto determinable. Our regulations at 50 CFR nonnative species consistent with Rican harlequin butterfly inhabits four 424.12(a)(2) state that critical habitat is conservation needs of the listed species. life zones: (1) Subtropical moist forest not determinable when one or both of The features may also be combinations on limestone-derived soil; (2) the following situations exist: of habitat characteristics and may subtropical wet forest on limestone- (i) Data sufficient to perform required encompass the relationship between derived soil; (3) subtropical wet forest analyses are lacking, or characteristics or the necessary amount on serpentine-derived soil; and (4) (ii) The biological needs of the species of a characteristic essential to support subtropical moist forest on serpentine- are not sufficiently well known to the life history of the species. derived soil (Ewel and Whitmore 1973, identify any area that meets the In considering whether features are p. 25; Helmer et al. 2002, p. 169). These definition of ‘‘critical habitat.’’ essential to the conservation of the life zones are distinguished by mean When critical habitat is not species, the Service may consider an annual precipitation and mean annual determinable, the Act allows the Service appropriate quality, quantity, and temperature (Holdridge 1947, entire; an additional year to publish a critical spatial and temporal arrangement of Ewel and Whitmore 1973, p. 4). habitat designation (16 U.S.C. habitat characteristics in the context of Regardless of life zone and forest type, 1533(b)(6)(C)(ii)). the life-history needs, condition, and the patches of native forest that the We reviewed the available status of the species. These Puerto Rican harlequin butterfly information pertaining to the biological characteristics include, but are not occupies are characterized by canopy needs of the species and habitat limited to, space for individual and cover ranging from 50 to 85 percent, an characteristics where this species is population growth and for normal average canopy height of 6 meters (m) located and conclude that the behavior; food, water, air, light, (20 feet (ft)), and the host plant covering designation of critical habitat is minerals, or other nutritional or more than 30 percent of the understory determinable for the Puerto Rican physiological requirements; cover or (Vargas 2019, entire). harlequin butterfly. shelter; sites for breeding, reproduction, Adults of the Puerto Rican harlequin or rearing (or development) of offspring; butterfly have been observed feeding on Physical or Biological Features flowers of several native trees (see Essential to the Conservation of the and habitats that are protected from disturbance. Summary of Biological Status and Species To identify the specific physical and Threats, above, and 76 FR 31282, May In accordance with section 3(5)(A)(i) biological needs of the Puerto Rican 31, 2011). All the sites where the Puerto of the Act and regulations at 50 CFR harlequin butterfly, we evaluated Rican harlequin butterfly occurs have a 424.12(b), in determining which areas current conditions at locations where close (within a 1-km (0.6-mi) radius) we will designate as critical habitat from the species exists and best information water source (e.g., creek, river, pond, within the geographical area occupied available on the species’ biology. We puddle, etc.). Suitable sites must by the species at the time of listing, we derive the physical features required for contain the right temperature range that consider the physical or biological the species from the general description supports the biological needs of the features that are essential to the of the ecological regions where the Puerto Rican harlequin butterfly. conservation of the species and that may species occurs, models for climatic Average daily maximum temperatures require special management boundaries that characterize the areas where the species occurs range from 28 considerations or protection. The where the species occurs, and the forest to 32 °C (82 to 90 °F), suggesting that the regulations at 50 CFR 424.02 define types inhabited by the species (Service species’ ecological niche has evolved ‘‘physical or biological features essential 2019, entire). A crucial biological within this range of upper thermal to the conservation of the species’’ as feature for the Puerto Rican harlequin tolerance (Service 2019, p. 80). the features that occur in specific areas butterfly is the host plant (Oplonia Moreover, exposure to high temperature and that are essential to support the life- spinosa), which is the only species upon may cause dehydration in adults, which history needs of the species, including, which it lays its eggs and then feeds on is a serious threat due to their large

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surface-to-volume ratio (Pometto 2014, 1. Forest habitat types in the Northern nongovernment organizations (PRPB p. 18). As a day-flier, the Puerto Rican Karst region in Puerto Rico: Mature 2014, p. 19). In recent years, protection harlequin butterfly likely has a high secondary moist limestone evergreen and management of the habitat that the need for water because the species is and semi-deciduous forest, or young Puerto Rican harlequin butterfly shares active during the warmest time of the secondary moist limestone evergreen with other federally and Commonwealth day, from 9 a.m. to 4 p.m. (Service 2019, and semi-deciduous forest, or both listed species (e.g., the endangered p. 55). forest types, in subtropical moist forest Puerto Rican parrot (Amazona vittata), The capacity for Puerto Rican or subtropical wet forest life zones. threatened elfin-woods warbler harlequin butterfly populations to grow 2. Forest habitat types in the West- (Setophaga angelae), and several plants, and expand is limited by the quantity central Volcanic-serpentine region in among others) has become a high and quality of the habitat and the Puerto Rico: Mature secondary dry and priority. For example, the Maricao connectivity among habitat patches. moist serpentine semi-deciduous forest, Commonwealth Forest comprises Healthy Puerto Rican harlequin or young secondary dry and moist 3,996.2 ha (9,874.8 ac) of public land butterfly populations rely on discrete serpentine semi-deciduous forest, or managed for conservation (Caribbean high-quality habitat patches as small as both forest types, in subtropical moist LLC 2016, website data) that harbors 1 ac (0.4 ha), separated by less than 1 forest or subtropical wet forest life habitat for the Puerto Rican harlequin km (0.6 mi), and embedded in a zones. butterfly. Moreover, in 2000, DNER landscape with few barriers for 3. Components of the forest habitat acquired through the U.S. Forest Service dispersal of the species (Monzo´n 2007, types. The forest habitat types described (USFS) Forest Legacy Program a parcel p. 53; Morales and Estremera 2018, p. 1; in 1. and 2., above, contain: of land of 107 ha (264.4 ac), locally Barber 2019, p. 1). Populations in (i) Native forest area greater than 1 known as ‘‘Finca Busigo´,’’ adjacent to patches this small likely rely on the acre that is within 1 km (0.6 mi) of a the Maricao Commonwealth Forest. existence of populations in nearby water source (stream, pond, puddle, This parcel is located approximately 1 patches to ensure their long-term etc.) and other forested area. km (0.6 mi) from currently occupied persistence. (ii) Canopy cover between 50 to 85 Puerto Rican harlequin butterfly habitat Connectivity must be adequate not percent and canopy height ranging from and is managed for conservation only for an individual’s foraging needs, 4 to 8 m (13.1 to 26.2 ft). (Caribbean LLC 2016, website data). In but to connect individual butterflies to (iii) Oplonia spinosa covering more addition, over 64,683.4 ha (159,836.4 ac) a larger interbreeding population, than 30 percent of the understory. of native forest along the northern karst enhancing subpopulation resilience Special Management Considerations or belt are covered by the Karst Protection through both the rescue effect and Protection Law (Law for Protection and maintenance of genetic diversity. Conservation of the Karst Physiography Moreover, forest connectivity among When designating critical habitat, we of Puerto Rico, Law No. 292) providing suitable patches and water sources is assess whether the specific areas within protection of that habitat. essential for dispersal. Three factors are the geographical area occupied by the likely essential to ensure a healthy species at the time of listing contain Criteria Used To Identify Critical interaction among populations: Short features which are essential to the Habitat distances between patches, high-quality conservation of the species and which As required by section 4(b)(2) of the habitat, and few or no dispersal barriers. may require special management Act, we use the best scientific data The Puerto Rican harlequin butterfly considerations or protection. available to designate critical habitat. In may not typically move greater than 1 The features essential to the accordance with the Act and our km (0.6 mi) between habitat patches conservation of the Puerto Rican implementing regulations at 50 CFR separated by structurally similar natural harlequin butterfly may require special 424.12(b), we review available habitats, or through a mosaic of management considerations or information pertaining to the habitat disturbed habitat including houses, protections to reduce or mitigate the requirements of the species and identify roads, and grass-dominated fields or following threats: Land conversion for specific areas within the geographical pasture. Hence, habitat quality— urban and commercial use, road area occupied by the species at the time indicated by factors including density of construction and maintenance, utility of listing and any specific areas outside Oplonia spinosa, amount and quality of and communications structures and the geographical area occupied by the adult food sources, and water sources— corridors, and agriculture; fires and species to be considered for designation plays an important role in Puerto Rican garbage dumps (which are often the as critical habitat. The areas proposed harlequin butterfly colonization success. source of fires); and climate change and for designation as critical habitat drought. In particular, habitat that has at provide sufficient habitat for breeding, Summary of Essential Physical or any time supported a subpopulation nonbreeding, and dispersing adults of Biological Features will require protection from land use the Puerto Rican harlequin butterfly, as We derive the specific physical or change that would permanently remove well as the habitat needs for all larval biological features essential to the host plant patches and nectar sources, stages of this butterfly. The proposed conservation of the Puerto Rican or that would destroy habitat containing critical habitat areas contain all the harlequin butterfly from studies of the adult nectar sources that connects such physical and biological features defined species’ habitat, ecology, and life history host plant patches through which adults for the species. We are not currently as described in this document. are likely to move. These management proposing to designate any areas outside Additional information can be found in activities will protect from losses of the geographical area occupied by the the SSA report (Service 2019, entire; habitat large enough to preclude species because the occupied areas are available on http://www.regulations.gov conservation of the species. sufficient to promote conservation of the under Docket No. FWS–R4–ES–2020– Other special management protection species and because we have not 0083). We have determined that the considerations include conservation identified any unoccupied areas that following physical or biological features efforts that have been directed towards meet the definition of critical habitat. are essential to the conservation of the land acquisition and conservation In summary, for areas within the Puerto Rican harlequin butterfly: easements by government and geographic area occupied by the species

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at the time of listing, we delineated areas such as lands covered by history processes. All proposed units critical habitat unit boundaries using buildings, pavement, and other contain all of the identified region- the following criteria: structures because such lands lack specific forest habitat types and 1. Forested habitat is currently physical or biological features necessary components of the forest habitat types occupied and contains some or all of the for the Puerto Rican harlequin butterfly. that are the physical or biological physical or biological features. The scale of the maps we prepared features essential to the conservation of 2. Forested habitat is located between under the parameters for publication the Puerto Rican harlequin butterfly and the breeding sites, and a 1-km (0.6-mi) within the Code of Federal Regulations support multiple life-history processes. radius around each subpopulation both may not reflect the exclusion of such The critical habitat designation is serves as an extension of the habitat developed lands. There are developed defined by the maps, as modified by any within the geographic area of an areas (single houses and access roads) accompanying regulatory text, presented occupied unit and promotes within the proposed designation, which at the end of this document under connectivity among the breeding sites in could affect the suitability of habitat for Proposed Regulation Promulgation. We an occupied unit, which will foster the species. Any such lands include more detailed information on genetic exchange between inadvertently left inside critical habitat the boundaries of the critical habitat subpopulations. boundaries shown on the maps of this designation in the preamble of this We evaluated those occupied forested proposed rule have been excluded by habitats in criterion 1 and refined the document. We will make the text in the proposed rule and are not coordinates or plot points or both on boundaries of the critical habitat area by proposed for designation as critical evaluating the presence or absence of which each map is based available to habitat. Therefore, if the critical habitat the public on http:// appropriate physical or biological is finalized as proposed, a Federal features in criterion 2. We selected the www.regulations.gov at Docket No. action involving these lands would not FWS–R4–ES–2020–0083 and our forested habitat boundary cutoff points trigger section 7 consultation with (the edges or endpoints of the habitat internet site at https://www.fws.gov/ respect to critical habitat and the southeast/caribbean. with the physical or biological features) requirement of no adverse modification to exclude areas that are highly unless the specific action would affect Proposed Critical Habitat Designation degraded, already developed, or not the physical or biological features in the likely restorable; for example, areas We are proposing six units as critical adjacent critical habitat. permanently deforested by urban habitat for the Puerto Rican harlequin development or frequently deforested We propose to designate as critical butterfly. The critical habitat areas we for agricultural practices (e.g., cattle habitat lands that we have determined describe below constitute our current rearing). Additionally, we used the are occupied at the time of listing (i.e., best assessment of areas that meet the forested habitat cutoff points at the 2-km currently occupied), and that contain definition of critical habitat for the (1.2-mi) buffer zone around the species’ one or more of the physical or biological Puerto Rican harlequin butterfly. The breeding sites to mark the boundary of features that are essential to support six areas we propose as critical habitat a patch of land proposed for designation life-history processes of the species and are: (1) Isabela, Quebradillas and Camuy because 1 km (0.6 mi) is the maximum that may require special management (IQC), (2) Guajataca, (3) Rı´o Abajo, (4) distance the butterfly has been observed considerations. Rı´o Encantado, (5) Maricao, and (6) to disperse to a mating site (Monzon We are proposing to designate six Susu´ a. Table 4 shows the proposed 2007, p. 42). units as critical habitat based on one or critical habitat units and the When determining proposed critical more of the physical or biological approximate area of each unit. All six habitat boundaries, we made every features being present to support the units of proposed critical habitat are effort to avoid including developed Puerto Rican harlequin butterfly’s life- considered occupied by the species.

TABLE 4—PROPOSED CRITICAL HABITAT UNITS FOR THE PUERTO RICAN HARLEQUIN BUTTERFLY [Area estimates reflect all land within critical habitat unit boundaries.]

Size of unit in acres Critical habitat unit Land ownership by type (hectares) Occupied?

1. IQC ...... Public ...... 5.0 (2.0) Yes. Private ...... 1,670.7 (676.1) Total ...... 1,675.7 (678.1) 2. Guajataca ...... Public ...... 583.5 (236.1) Yes. Private ...... 3,255.5 (1,317.5) Total ...... 3,839.0 (1,553.6) 3. Rı´o Abajo ...... Public ...... 4,544.4 (1,839.1) Yes. Private ...... 1,394.8 (564.5) Total ...... 5,939.2 (2,403.6) 4. Rı´o Encantado ...... Public ...... 204.8 (82.9) Yes. Private * ...... 12,570.8 (5,087.2) Total ...... 12,775.6 (5,170.1) 5. Maricao ...... Public ...... 7,883.1 (3,190.2) Yes. Private ...... 2,971.5 (1,202.5) Total ...... 10,854.6 (4,392.7) 6. Susu´a ...... Public ...... 3,171.5 (1,283.5) Yes. Private ...... 3,010.4 (1,218.3) Total ...... 6,181.9 (2,501.8)

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TABLE 4—PROPOSED CRITICAL HABITAT UNITS FOR THE PUERTO RICAN HARLEQUIN BUTTERFLY—Continued [Area estimates reflect all land within critical habitat unit boundaries.]

Size of unit in acres Critical habitat unit Land ownership by type (hectares) Occupied?

Totals ...... Public ...... 16,392.3 (6,633.8) Private ...... 24,873.7 (10,066.0) Total ...... 41,266.0 (16,699.8) * 1,442.6 private ac owned by Para La Naturaleza (PLN) and managed for conservation. Note: Area sizes may not sum due to rounding.

We present brief descriptions of all around northern Puerto Rico. Special Unit 3: Rı´o Abajo units, and reasons why they meet the management considerations or Unit 3 consists of 5,939.2 ac (2,403.6 definition of critical habitat for the protections in Unit 1 may be required to ha) located 14.5 km (9 mi) south of Puerto Rican harlequin butterfly, below. address land conversion for urban and Arecibo. The proposed critical habitat is commercial use, road construction and Unit 1: IQC bound on the east by the Rı´o Grande de maintenance, utility and Arecibo, on the west by Santa Rosa Unit 1 consists of 1,675.7 ac (678.1 communications structures and Ward in Utuado, on the north by Hato ha) located along the northern coastal corridors, and agriculture; fires and Viejo Ward in Arecibo, and on the south cliff among the municipalities of garbage dumps (which are often the by Caguana and Sabana Grande Wards Isabela, Quebradillas, and Camuy (IQC), source of fires); and climate change and in Utuado. In this unit, all life stages of 23 km (15 mi) west of Arecibo. The drought. the species and the host plant have been proposed critical habitat is bound on the Unit 2: Guajataca found at four sites. Unit 3 is in the east by the community La Yeguada and subtropical moist/wet-northern Membrillo in Camuy, on the west by the Unit 2 consists of 3,839 ac (1,553.6 limestone forest life zone (Helmer et al. community Villa Pesquera and Pueblo ha) south of PR 2, between the 2002, p. 169). The species’ habitat in in Isabela, on the north by the Atlantic municipalities Isabela and Quebradillas, Unit 3 is composed of mature secondary Ocean, and on the south by urban 25 km (15.6 mi) southwest of Arecibo. moist limestone evergreen and developments, State road PR–2, the The proposed critical habitat is bounded semideciduous forest (Gould et al. 2008, Royal Isabela Golf Course, and some on the east by the San Antonio ward in p. 14). The Rı´o Abajo Commonwealth deforested areas used for agricultural Quebradillas, on the west by PR 446 at Forest, managed for conservation, practices such as cattle grazing. In this Galateo ward in Isabela, on the north by occupies 77 percent of the unit. The unit, all life stages of the species (i.e., Llanadas ward in Isabela and Cacao other 23 percent is a mosaic of imago, egg, larva, chrysalis, and adults) ward in Quebradillas, and on the south highways, roads, and private lands and the species’ host plant have been by Montan˜ as de Guarionex, between the subject to agriculture or rural found in 115 sites. development. Unit 3 contains all the Unit 1 is in the subtropical moist Planas ward in Isabela and Charcas ward in Quebradillas. Northern Karst region forest habitat forest life zone. The forested habitat is types and components of those habitat composed of young secondary lowland The Puerto Rican harlequin butterfly types that are the essential physical and moist limestone evergreen and was first found in Unit 2 in July 2019. biological features for the species. semideciduous forest and mature All life stages of the species and its host Special management considerations or secondary lowland moist limestone plant have been found at six sites. Unit protections in Unit 3 may be required to evergreen and semideciduous forest 2 is in the subtropical moist/wet- address land conversion for rural (Gould et al. 2008, p. 14). Plant species northern limestone forest life zone development, road construction and in this unit include Oplonia spinosa (Helmer et al. 2002, p. 169). Habitat in maintenance, utility and and several others that are sources of Unit 2 is composed of mature secondary communications structures and nectar for adult Puerto Rican harlequin moist limestone evergreen and corridors, and agriculture, as well as butterflies. The presence of rare plant semideciduous forest (Gould et al. 2008, climate change and drought. taxa in this unit suggests it contains p. 14). Fifteen percent of the proposed relict and mature forest that survived critical habitat in this unit overlaps Unit 4: Rı´o Encantado the massive deforestation of the 19th Guajataca Commonwealth Forest, an Unit 4 consists of 12,775.6 ac (5,170.1 century (Morales and Estremera 2018, p. area managed by the DNER for ha) located among the municipalities of 1) and has persisted as a refuge for the conservation. The other 85 percent is Arecibo, Florida, and Ciales, 17 km Puerto Rican harlequin butterfly. Unit 1 private land subjected to agriculture or (10.5 mi) southeast of Arecibo. The contains all the Northern Karst region rural development. Unit 2 contains all proposed critical habitat is bound on the forest habitat types and components of the Northern Karst region forest habitat east by Hato Viejo Ward in Ciales, on those habitat types that are the essential types and components of those habitat the west by the Rı´o Grande de Arecibo, physical and biological features for the types that are the essential physical and on the north by Arrozales Ward in species. biological features for the species. Arecibo and Pueblo Ward in Florida, A combination of habitat Special management considerations or and on the south by the PR 146 along fragmentation and high road density is protections in Unit 2 may be required to of the Limo´n Ward in Utuado and a current and future threat to the Puerto address land conversion for rural Fronto´n Ward in Ciales. All life stages Rican harlequin butterfly in Unit 1. development, road construction and of the species and the host plant have Habitat in Unit 1 has been lost to single maintenance, utility and been found in nine sites. The unit is in land parcels segregated for houses, and communications structures and the subtropical moist/wet-northern large-scale residential and tourist corridors, and agriculture, as well as limestone forest life zone (Helmer et al. projects, which are planned within and climate change and drought. 2002, p. 169). The species’ habitat in

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Unit 4 is composed of mature secondary Unit 6: Susu´ a the value of critical habitat as a whole moist limestone evergreen and for the conservation of a listed species. Unit 6 consists of 6,181.9 ac (2,501.8 semideciduous forest (Gould et al. 2008, If a Federal action may affect a listed ha) between the municipalities of p. 14). Thirteen percent of the proposed species or its critical habitat, the Sabana Grande and Yauco, 33.6 km (21 responsible Federal agency (action critical habitat is in areas managed by mi) northwest of Ponce. The proposed Para La Naturaleza (PLN), a private agency) must enter into consultation critical habitat is bound on the east by with us. Examples of actions that are organization, or by the DNER for the PR 371 in Almacigo Alto and conservation. The other 87 percent subject to the section 7 consultation Collores Wards in Yauco, on the west by process are actions on Commonwealth, consists of private lands subject to Pueblo Ward in Sabana Grande, on the agriculture or rural developments. Unit local, or private lands that require a north by Frailes Ward in Yauco, and on Federal permit (such as a permit from 4 contains all the Northern Karst region the south by PR 368 in Susu´ a Ward in forest habitat types and components of the U.S. Army Corps of Engineers under Sabana Grande. All life stages of the section 404 of the Clean Water Act (33 those habitat types that are the essential species and its host plant have been physical and biological features for the U.S.C. 1251 et seq.) or a permit from the found at three sites in this unit. Unit 6 Service under section 10 of the Act) or species. Special management is in the subtropical moist and considerations or protections in Unit 4 that involve some other Federal action subtropical wet forest life zones, and (such as funding from the Federal may be required to address land contains mature secondary dry and conversion for rural developments, road Highway Administration, Federal moist serpentine semi-deciduous forest Aviation Administration, or the Federal construction and maintenance, utility and young secondary moist serpentine Emergency Management Agency). and communications structures and evergreen and semi-deciduous forest. Federal actions not affecting listed corridors, and agriculture, as well as The Susu´ a Commonwealth Forest, species or critical habitat—and actions climate change and drought. managed by DNER for conservation, on Commonwealth, State, Tribal, local, occupies 51 percent of the proposed Unit 5: Maricao or private lands that are not federally critical habitat in this unit. The other 49 funded, authorized, or carried out by a Unit 5 consists of 10,854.6 ac (4,392.7 percent is on private lands subjected to Federal agency—do not require section ha) on the west end of the Cordillerra agriculture or rural developments. Unit 7 consultation. Central, among the municipalities of 6 contains all the West-central Volcanic- Compliance with the requirements of Maricao, San Germa´n, and Sabana serpentine region forest habitat types section 7(a)(2) is documented through Grande, 16.1 km (10 mi) southeast of and components of those habitat types our issuance of: Mayagu¨ ez. The proposed critical habitat that are the essential physical and (1) A concurrence letter for Federal is bound on the east by Tabonuco Ward biological features for the species. actions that may affect, but are not in Sabana Grande, on the west by Special management considerations or likely to adversely affect, listed species Rosario Ward in San Germa´n, on the protections in Unit 6 may be required to or critical habitat; or north by Pueblo Ward of Maricao, and address land conversion for rural (2) A biological opinion for Federal on the south by the Guama´ and Santana developments, road construction and actions that may affect, and are likely to Ward of San Germa´n. All life stages of maintenance, utility and adversely affect, listed species or critical the species and its host plant have been communications structures and habitat. found at seven sites in the unit. Unit 5 corridors, and agriculture; fires and When we issue a biological opinion is in the subtropical wet forest life zone garbage dumps (which are often the concluding that a project is likely to on serpentine-derived soil and contains source of fires); and climate change and jeopardize the continued existence of a three types of forest: (1) Mature drought. listed species and/or destroy or secondary montane wet serpentine Effects of Critical Habitat Designation adversely modify critical habitat, we evergreen forest, (2) wet serpentine provide reasonable and prudent shrub and woodland forest, and (3) Section 7 Consultation alternatives to the project, if any are identifiable, that would avoid the mature secondary montane wet non- Section 7(a)(2) of the Act requires likelihood of jeopardy and/or calcareous evergreen forest (Gould et al. Federal agencies, including the Service, destruction or adverse modification of 2008, p. 14). The Maricao to ensure that any action they fund, critical habitat. We define ‘‘reasonable Commonwealth Forest, managed for authorize, or carry out is not likely to and prudent alternatives’’ (at 50 CFR conservation by DNER, occupies 72 jeopardize the continued existence of 402.02) as alternative actions identified percent of the unit. The other 28 percent any endangered species or threatened during consultation that: is private land consisting of a mosaic of species or result in the destruction or (1) Can be implemented in a manner agriculture, rural developments, and adverse modification of designated consistent with the intended purpose of forest. Unit 5 contains all the West- critical habitat of such species. In the action, central Volcanic-serpentine region forest addition, section 7(a)(4) of the Act (2) Can be implemented consistent habitat types and components of those requires Federal agencies to confer with with the scope of the Federal agency’s habitat types that are the essential the Service on any agency action which legal authority and jurisdiction, physical and biological features for the is likely to jeopardize the continued (3) Are economically and species. Special management existence of any species proposed to be technologically feasible, and considerations or protections in Unit 5 listed under the Act or result in the (4) Would, in the Service Director’s may be required to address land destruction or adverse modification of opinion, avoid the likelihood of conversion for rural developments, road proposed critical habitat. jeopardizing the continued existence of construction and maintenance, utility We published a final rule revising the the listed species and/or avoid the and communications structures and definition of destruction or adverse likelihood of destroying or adversely corridors, and agriculture; fires and modification on August 27, 2019 (84 FR modifying critical habitat. garbage dumps (which are often the 44976). Destruction or adverse Reasonable and prudent alternatives source of fires); and climate change and modification means a direct or indirect can vary from slight project drought. alteration that appreciably diminishes modifications to extensive redesign or

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relocation of the project. Costs a whole for the conservation of the and our analyses of the relevant associated with implementing a Puerto Rican harlequin butterfly is impacts. reasonable and prudent alternative are appreciably diminished; or Consideration of Economic Impacts similarly variable. (3) Removal of native forest resulting Regulations at 50 CFR 402.16 set forth in fragmentation such that remaining Section 4(b)(2) of the Act and its requirements for Federal agencies to forest patches are greater than 1 km (0.6 implementing regulations require that reinitiate formal consultation on mi) apart or less than 1 ac (0.4 ha) in we consider the economic impact that previously reviewed actions. These size. may result from a designation of critical requirements apply when the Federal Such activities could include, but are habitat. To assess the probable agency has retained discretionary not limited to, residential and economic impacts of a designation, we involvement or control over the action commercial development, and must first evaluate specific land uses or (or the agency’s discretionary conversion to agricultural fields or activities and projects that may occur in involvement or control is authorized by pasture. Any of these activities could the area of the critical habitat. We then law) and, subsequent to the previous permanently eliminate or reduce the must evaluate the impacts that a specific consultation, we have listed a new habitat necessary for the growth and critical habitat designation may have on species or designated critical habitat reproduction of the Puerto Rican restricting or modifying specific land that may be affected by the Federal harlequin butterfly. uses or activities for the benefit of the action, or the action has been modified species and its habitat within the areas in a manner that affects the species or Exemptions proposed. We then identify which critical habitat in a way not considered Application of Section 4(a)(3) of the Act conservation efforts may be the result of in the previous consultation. In such the species being listed under the Act situations, Federal agencies sometimes Section 4(a)(3)(B)(i) of the Act (16 versus those attributed solely to the may need to request reinitiation of U.S.C. 1533(a)(3)(B)(i)) provides that the designation of critical habitat for this consultation with us, but the regulations Secretary shall not designate as critical particular species. The probable also specify some exceptions to the habitat any lands or other geographical economic impact of a proposed critical requirement to reinitiate consultation on areas owned or controlled by the habitat designation is analyzed by specific land management plans after Department of Defense, or designated comparing scenarios both ‘‘with critical subsequently listing a new species or for its use, that are subject to an habitat’’ and ‘‘without critical habitat.’’ designating new critical habitat. See the integrated natural resources The ‘‘without critical habitat’’ regulations for a description of those management plan (INRMP) prepared scenario represents the baseline for the exceptions. under section 101 of the Sikes Act (16 analysis, which includes the existing U.S.C. 670a), if the Secretary determines regulatory and socio-economic burden Application of the ‘‘Destruction or in writing that such plan provides a imposed on landowners, managers, or Adverse Modification’’ Standard benefit to the species for which critical other resource users potentially affected The key factor related to the habitat is proposed for designation. by the designation of critical habitat ‘‘destruction or adverse modification’’ There are no Department of Defense (e.g., under the Federal listing as well as determination is whether (DoD) lands with a completed INRMP other Federal, State, and local implementation of the proposed Federal within the proposed critical habitat regulations). The baseline, therefore, action directly or indirectly alters the designation. represents the costs of all efforts that provide protection to the species and its designated critical habitat in a way that Consideration of Impacts Under Section habitat even absent a critical habitat appreciably diminishes the value of the 4(b)(2) of the Act critical habitat as a whole for the designation (i.e., conservation of the conservation of the listed species. As Section 4(b)(2) of the Act states that species and its habitat incurred discussed above, the role of critical the Secretary shall designate and make regardless of whether critical habitat is habitat is to support physical or revisions to critical habitat on the basis designated). The ‘‘with critical habitat’’ biological features essential to the of the best available scientific data after scenario describes the incremental conservation of a listed species and taking into consideration the economic impacts associated specifically with the provide for the conservation of the impact, national security impact, and designation of critical habitat for the species. any other relevant impact of specifying species. The incremental conservation Section 4(b)(8) of the Act requires us any particular area as critical habitat. efforts and associated impacts would to briefly evaluate and describe, in any The Secretary may exclude an area from not be expected without the designation proposed or final regulation that critical habitat if he determines that the of critical habitat for the species. In designates critical habitat, activities benefits of such exclusion outweigh the other words, the incremental costs are involving a Federal action that may benefits of specifying such area as part those attributable solely to the violate section 7(a)(2) of the Act by of the critical habitat, unless he designation of critical habitat, above and destroying or adversely modifying such determines, based on the best scientific beyond the baseline costs. These are the habitat, or that may be affected by such data available, that the failure to costs we use when evaluating the designation. designate such area as critical habitat benefits of inclusion and exclusion of Activities that the Service may, will result in the extinction of the particular areas from the final during a consultation under section species. In making the determination to designation of critical habitat should we 7(a)(2) of the Act, find are likely to exclude a particular area, the statute on choose to conduct a discretionary destroy or adversely modify critical its face, as well as the legislative history, 4(b)(2) exclusion analysis. habitat include, but are not limited to: are clear that the Secretary has broad For this particular designation, we (1) Removal of Oplonia spinosa host discretion regarding which factor(s) to developed an incremental effects plants harboring eggs, caterpillars, or use and how much weight to give to any memorandum (IEM) considering the chrysalises; factor. probable incremental economic impacts (2) Removal of a significant amount of We describe below the process that that may result from this proposed O. spinosa or nectar source plants, such we undertook for taking into designation of critical habitat. The that the value of the critical habitat as consideration each category of impacts information contained in our IEM was

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then used to develop a screening 2020, probable incremental economic of the incremental effects has been used analysis of the probable effects of the impacts associated with the following as the basis to evaluate the probable designation of critical habitat for the categories of activities: (1) Construction incremental economic impacts of this Puerto Rican harlequin butterfly (IEc and maintenance of highways, roads, proposed designation of critical habitat. 2020, entire). We began by conducting powerlines, and communications The proposed critical habitat a screening analysis of the proposed towers; and (2) conservation projects designation for the Puerto Rican designation of critical habitat in order to conducted by the U.S. Department of harlequin butterfly includes 41,266 ac focus our analysis on the key factors Agriculture’s Natural Resources (16,699.8 ha) in six units, all which are that are likely to result in incremental Conservation Service and Farm Service occupied by the species. The proportion economic impacts. The purpose of the Agency, and the Service’s Partners for of private and public ownership by unit screening analysis is to filter out Fish and Wildlife program. We is listed above in Table 4. All public particular geographic areas of critical considered each industry or category ownership consists of Commonwealth habitat that are already subject to such individually. Additionally, we Forests managed by the DNER for protections and are, therefore, unlikely considered whether their activities have conservation, except 5 ac (2 ha) to incur incremental economic impacts. any Federal involvement. Critical managed for recreation in Unit 1. In particular, the screening analysis habitat designation generally will not Recreation is restricted to hiking trails considers baseline costs (i.e., absent affect activities that do not have any and, in a few areas, camping. In these critical habitat designation) and Federal involvement; under the Act, areas, it is unlikely that any additional includes probable economic impacts designation of critical habitat only conservation efforts would be where land and water use may be affects activities conducted, funded, recommended to address the adverse subject to conservation plans, land permitted, or authorized by Federal modification standard over and above management plans, best management agencies. If we list the species, in areas those recommended as necessary to practices, or regulations that protect the where the Puerto Rican harlequin avoid jeopardizing the continued habitat area as a result of the Federal butterfly is present, Federal agencies existence of the Puerto Rican harlequin listing status of the species. Ultimately, would be required to consult with the butterfly. Therefore, only administrative the screening analysis allows us to focus Service under section 7 of the Act on costs are expected throughout the our analysis on evaluating the specific activities they fund, permit, or proposed critical habitat designation. areas or sectors that may incur probable implement that may affect the species. While this additional analysis will incremental economic impacts as a If, when we list the species, we also require time and resources by both the result of the designation. If there are any finalize this proposed critical habitat Federal action agency and the Service, unoccupied units in the proposed designation, consultations to avoid the in most circumstances, these costs critical habitat designation, the destruction or adverse modification of would predominantly be administrative screening analysis also assesses whether critical habitat would be incorporated in nature and would not be significant. The entities most likely to incur any additional management or into the existing consultation process. incremental costs are parties to section conservation efforts may incur In our IEM, we attempted to clarify 7 consultations, including Federal incremental economic impacts. This the distinction between the effects that action agencies and, in some cases, third screening analysis combined with the will result from the species being listed parties, most frequently State agencies information contained in our IEM are and those attributable to the critical or municipalities. Activities we expect what we consider our draft economic habitat designation (i.e., difference would be subject to consultations that analysis (DEA) of the proposed critical between the jeopardy and adverse may involve private entities as third habitat designation for the Puerto Rican modification standards) for the Puerto parties are residential and commercial harlequin butterfly; our DEA is Rican harlequin butterfly’s critical development on private lands. However, summarized in the narrative below. habitat. Because the designation of based on coordination efforts with Executive Orders (E.O.s) 12866 and critical habitat for the Puerto Rican Commonwealth and local agencies, the 13563 direct Federal agencies to assess harlequin butterfly is proposed cost to private entities within these the costs and benefits of available concurrently with the listing, it has been sectors is expected to be relatively regulatory alternatives in quantitative our experience that it is more difficult minor (administrative costs of less than (to the extent feasible) and qualitative to discern which conservation efforts $10,000 per consultation effort, year terms. Consistent with the E.O. are attributable to the species being 2020 dollars); therefore, they would not regulatory analysis requirements, our listed and those which would result be significant. effects analysis under the Act may take solely from the designation of critical As previously mentioned, the into consideration impacts to both habitat. However, the following specific probable incremental economic impacts directly and indirectly affected entities, circumstances in this case help to of the Puerto Rican harlequin butterfly where practicable and reasonable. If inform our evaluation: (1) The essential critical habitat designation are expected sufficient data are available, we assess physical or biological features identified to be limited to additional to the extent practicable the probable for critical habitat are the same features administrative effort. In addition, there impacts to both directly and indirectly essential for the life-history may be minor costs of conservation affected entities. As part of our requirements of the species, and (2) any efforts resulting from a small number of screening analysis, we considered the actions that would adversely affect the future section 7 consultations. This is types of economic activities that are essential physical or biological features due to the species occupying all of the likely to occur within the areas likely of critical habitat would also likely critical habitat units—because the affected by the critical habitat result in jeopardy to the Puerto Rican species occupies all of the designated designation. In our evaluation of the harlequin butterfly The IEM outlines units of critical habitat, any action that probable incremental economic impacts our rationale concerning this limited would adversely modify any of the units that may result from the proposed distinction between baseline would also likely cause take of the designation of critical habitat for the conservation efforts and incremental species and jeopardize its continued Puerto Rican harlequin butterfly, first impacts of the designation of critical existence. From 2015 to 2019, there we identified, in the IEM dated April 7, habitat for this species. This evaluation were 4 technical assistance efforts, 14

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informal consultations, and 1 formal including homeland security, on lands authority of section 4(b)(2) and our consultation for three listed species that or areas not covered by section implementing regulations at 50 CFR overlap the range of the Puerto Rican 4(a)(3)(B)(i). Accordingly, we will 424.19. harlequin butterfly (IEc 2020, p. 11). always consider for exclusion from the Consideration of Other Relevant The cost for each of these categories of designation areas for which DoD, Impacts action related to section 7 was Department of Homeland Security approximately $420, $2,500, and $5,300, (DHS), or another Federal agency has During the development of a final respectively. We do not expect requested exclusion based on an designation, we will consider any designating critical habitat to result in assertion of national-security or information currently available or an increase in the number of these homeland-security concerns. received during the public comment categories of action under section 7 to We cannot, however, automatically period regarding other relevant impacts consider only impacts on critical habitat exclude requested areas. When DoD, of the proposed designation and will because all of the units are occupied. DHS, or another Federal agency requests determine whether any specific areas However, the cost of each action under exclusion from critical habitat on the should be excluded from the final section 7 may increase because of the basis of national-security or homeland- critical habitat designation under additional time and resources needed to security impacts, it must provide a authority of section 4(b)(2) and our consider the impacts on critical habitat reasonably specific justification of an implementing regulations at 50 CFR and not just the impact on the incremental impact on national security 424.19. continued existence of the species. We that would result from the designation anticipate that the additional cost per of that specific area as critical habitat. Exclusions year for all three of the categories of That justification could include Under section 4(b)(2) of the Act, we actions related to section 7 to consider demonstration of probable impacts, consider any other relevant impacts, in impacts on critical habitat for the Puerto such as impacts to ongoing border- addition to economic impacts and Rico harlequin butterfly—and therefore security patrols and surveillance impacts on national security discussed the incremental economic impact of activities, or a delay in training or above. We consider a number of designating critical habitat—would be facility construction, as a result of factors—including whether there are $42,300 (IEc 2020, p. 12). Thus, the compliance with section 7(a)(2) of the permitted conservation plans covering annual administrative burden will not Act. If the agency requesting the the species in the area such as HCPs, reach $100 million. exclusion does not provide us with a safe harbor agreements (SHAs), or We are soliciting data and comments reasonably specific justification, we will candidate conservation agreements with from the public on the DEA discussed contact the agency to recommend that it assurances (CCAAs), or whether there above, as well as all aspects of this provide a specific justification or are non-permitted conservation proposed rule and our required clarification of its concerns relative to agreements and partnerships that would determinations. During the development the probable incremental impact that be encouraged by designation of, or of a final designation, we will consider could result from the designation. If the exclusion from, critical habitat. In the information presented in the DEA agency provides a reasonably specific addition, we look at the existence of and any additional information on justification, we will defer to the expert Tribal conservation plans and economic impacts we receive during the judgment of DoD, DHS, or another partnerships and consider the public comment period to determine Federal agency as to: (1) Whether government-to-government relationship whether any specific areas should be activities on its lands or waters, or its of the United States with Tribal entities. excluded from the final critical habitat activities on other lands or waters, have We also consider any social impacts that designation under authority of section national-security or homeland-security might occur because of the designation. 4(b)(2) of the Act and our implementing implications; (2) the importance of those In preparing this proposal, we have regulations at 50 CFR 424.19. In implications; and (3) the degree to determined that there are currently no particular, we may exclude an area from which the cited implications would be HCPs or other management plans for the critical habitat if we determine that the adversely affected in the absence of an Puerto Rican harlequin butterfly, and benefits of excluding the area outweigh exclusion. In that circumstance, in the proposed designation does not the benefits of including the area, conducting a discretionary section include any Tribal lands or trust provided the exclusion will not result in 4(b)(2) exclusion analysis, we will give resources. Thus, we anticipate no the extinction of this species. great weight to national-security and impact on Tribal lands, partnerships, or homeland-security concerns in Consideration of National Security HCPs from this proposed critical habitat analyzing the benefits of exclusion. designation. Impacts In preparing this proposal, we have During the development of a final Section 4(a)(3)(B)(i) of the Act may determined that the lands within the designation, we will consider any not cover all DoD lands or areas that proposed designation of critical habitat additional information we receive pose potential national-security for the Puerto Rican harlequin butterfly through the public comment period concerns (e.g., a DoD installation that is are not owned, managed, or used by the regarding other relevant impacts to in the process of revising its INRMP for DoD or DHS, and, therefore, we determine whether any specific areas a newly listed species or a species anticipate no impact on national should be excluded from the final previously not covered). If a particular security or homeland security. However, critical habitat designation under area is not covered under section during the development of a final authority of section 4(b)(2) of the Act 4(a)(3)(B)(i), national-security or designation we will consider any homeland-security concerns are not a additional information received through and our implementing regulations at 50 factor in the process of determining the public comment period on the CFR 424.19. what areas meet the definition of impacts of the proposed designation on Required Determinations ‘‘critical habitat.’’ Nevertheless, when national security or homeland security designating critical habitat under to determine whether any specific areas Clarity of the Rule section 4(b)(2), the Service must should be excluded from the final We are required by Executive Orders consider impacts on national security, critical habitat designation under 12866 and 12988 and by the

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Presidential Memorandum of June 1, describes the effects of the rule on small Federal action agencies would be 1998, to write all rules in plain entities (i.e., small businesses, small directly regulated if we adopt the language. This means that each rule we organizations, and small government proposed critical habitat designation. publish must: jurisdictions). However, no regulatory There is no requirement under the RFA (1) Be logically organized; flexibility analysis is required if the to evaluate the potential impacts to (2) Use the active voice to address head of the agency certifies the rule will entities not directly regulated. readers directly; not have a significant economic impact Moreover, Federal agencies are not (3) Use clear language rather than on a substantial number of small small entities. Therefore, because no jargon; entities. The SBREFA amended the RFA small entities would be directly (4) Be divided into short sections and to require Federal agencies to provide a regulated by this rulemaking, the sentences; and certification statement of the factual Service certifies that, if made final as (5) Use lists and tables wherever basis for certifying that the rule will not proposed, the proposed critical habitat possible. have a significant economic impact on designation will not have a significant If you feel that we have not met these a substantial number of small entities. economic impact on a substantial requirements, send us comments by one According to the Small Business number of small entities. of the methods listed in ADDRESSES. To Administration, small entities include In summary, we have considered better help us revise the rule, your small organizations such as whether the proposed designation comments should be as specific as independent nonprofit organizations; would result in a significant economic possible. For example, you should tell small governmental jurisdictions, impact on a substantial number of small us the numbers of the sections or including school boards and city and entities. For the above reasons and paragraphs that are unclearly written, town governments that serve fewer than based on currently available which sections or sentences are too 50,000 residents; and small businesses information, we certify that, if made long, the sections where you feel lists or (13 CFR 121.201). Small businesses final, the proposed critical habitat tables would be useful, etc. include manufacturing and mining designation will not have a significant Regulatory Planning and Review concerns with fewer than 500 economic impact on a substantial (Executive Orders 12866 and 13563) employees, wholesale trade entities number of small business entities. with fewer than 100 employees, retail Therefore, an initial regulatory Executive Order 12866 provides that and service businesses with less than $5 flexibility analysis is not required. the Office of Information and Regulatory million in annual sales, general and Executive Order 13771 Affairs (OIRA) in the Office of heavy construction businesses with less Management and Budget will review all than $27.5 million in annual business, We do not believe this rule is an E.O. significant rules. OIRA has waived their special trade contractors doing less than 13771 (‘‘Reducing Regulation and review regarding their significance $11.5 million in annual business, and Controlling Regulatory Costs’’) (82 FR determination of this proposed rule. agricultural businesses with annual 9339, February 3, 2017) regulatory Executive Order 13563 reaffirms the sales less than $750,000. To determine action because we believe this proposed principles of E.O. 12866 while calling whether potential economic impacts to rule is not significant under E.O. 12866; for improvements in the nation’s these small entities are significant, we however, the Office of Information and regulatory system to promote considered the types of activities that Regulatory Affairs has waived their predictability, to reduce uncertainty, might trigger regulatory impacts under review regarding their E.O. 12866 and to use the best, most innovative, this designation as well as types of significance determination of this and least burdensome tools for project modifications that may result. In proposed rule. achieving regulatory ends. The general, the term ‘‘significant economic Energy Supply, Distribution, or Use— executive order directs agencies to impact’’ is meant to apply to a typical Executive Order 13211 consider regulatory approaches that small business firm’s business reduce burdens and maintain flexibility operations. Executive Order 13211 (Actions and freedom of choice for the public Under the RFA, as amended, and as Concerning Regulations That where these approaches are relevant, understood in the light of recent court Significantly Affect Energy Supply, feasible, and consistent with regulatory decisions, Federal agencies are required Distribution, or Use) requires agencies objectives. E.O. 13563 emphasizes to evaluate the potential incremental to prepare Statements of Energy Effects further that regulations must be based impacts of rulemaking on those entities when undertaking certain actions. In on the best available science and that directly regulated by the rulemaking our economic analysis, we did not find the rulemaking process must allow for itself; in other words, the RFA does not that this proposed critical habitat public participation and an open require agencies to evaluate the designation would significantly affect exchange of ideas. We have developed potential impacts to indirectly regulated energy supplies, distribution, or use. this proposed rule in a manner entities. The regulatory mechanism There are currently not any new consistent with these requirements. through which critical habitat planned power line or pipeline protections are realized is section 7 of corridors in the proposed critical habitat Regulatory Flexibility Act (5 U.S.C. 601 the Act, which requires Federal units. If there is a Federal nexus for et seq.) agencies, in consultation with the maintenance of existing power supply Under the Regulatory Flexibility Act Service, to ensure that any action structures and rights-of-way under (RFA; 5 U.S.C. 601 et seq.), as amended authorized, funded, or carried out by the section 7 of the Act, any section 7 by the Small Business Regulatory agency is not likely to destroy or consultation for potential effects to Enforcement Fairness Act of 1996 adversely modify critical habitat. critical habitat would also be (SBREFA; 5 U.S.C. 801 et seq.), Therefore, under section 7, only Federal undertaken due to the presence of the whenever an agency is required to action agencies are directly subject to Puerto Rican harlequin butterfly as a publish a notice of rulemaking for any the specific regulatory requirement threatened species and several other proposed or final rule, it must prepare (avoiding destruction and adverse federally listed species that occupy the and make available for public comment modification) imposed by critical critical habitat. Therefore, any activities a regulatory flexibility analysis that habitat designation. Consequently, only to preclude destruction of adverse

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modification of critical habitat—such as upon the private sector, except (i) a destroy or adversely modify critical larval host plant and adult nectar source condition of Federal assistance or (ii) a habitat. A takings implications plant surveys, avoidance of host plants duty arising from participation in a assessment has been completed for the that may have eggs or larvae of the voluntary Federal program.’’ proposed designation of critical habitat Puerto Rican harlequin butterfly, and The designation of critical habitat for the Puerto Rican harlequin butterfly, avoidance of insecticide and pesticide does not impose a legally binding duty and it concludes that, if adopted, this applications at project sites—would also on non-Federal Government entities or designation of critical habitat does not be needed to avoid jeopardy. Thus, costs private parties. Under the Act, the only pose significant takings implications for of considering critical habitat alone for regulatory effect is that Federal agencies lands within or affected by the a section 7 consultation would be must ensure that their actions do not designation. entirely administrative and less than destroy or adversely modify critical $10,000 (IEc, 2020), with the burden habitat under section 7. While non- Federalism—Executive Order 13132 solely on the Service and Federal action Federal entities that receive Federal In accordance with E.O. 13132 agency. As such, energy supply, funding, assistance, or permits, or that (Federalism), this proposed rule does distribution, or use would not be otherwise require approval or affected significantly if we adopt this authorization from a Federal agency for not have significant Federalism effects. proposed critical habitat designation. an action, may be indirectly impacted A federalism summary impact statement Therefore, this action is not a significant by the designation of critical habitat, the is not required. In keeping with energy action, and no Statement of legally binding duty to avoid Department of the Interior and Energy Effects is required. destruction or adverse modification of Department of Commerce policy, we critical habitat rests squarely on the requested information from, and Unfunded Mandates Reform Act (2 Federal agency. Furthermore, to the coordinated development of this U.S.C. 1501 et seq.) extent that non-Federal entities are proposed critical habitat designation In accordance with the Unfunded indirectly affected because they receive with, appropriate State resource Mandates Reform Act (2 U.S.C. 1501 et Federal assistance or participate in a agencies. From a federalism perspective, seq.), we make the following finding: voluntary Federal aid program, the the designation of critical habitat (1) This proposed rule would not Unfunded Mandates Reform Act would directly affects only the responsibilities produce a Federal mandate. In general, not apply, nor would critical habitat of Federal agencies. The Act imposes no a Federal mandate is a provision in shift the costs of the large entitlement other duties with respect to critical legislation, statute, or regulation that programs listed above onto State habitat, either for States and local would impose an enforceable duty upon governments. governments, or for anyone else. As a State, local, or Tribal governments, or (2) We do not believe that this rule result, the proposed rule does not have the private sector, and includes both would significantly or uniquely affect substantial direct effects either on the ‘‘Federal intergovernmental mandates’’ small governments because it will not States, or on the relationship between and ‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 the national government and the States, These terms are defined in 2 U.S.C. million or greater in any year; that is, it or on the distribution of powers and 658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ responsibilities among the various mandate’’ includes a regulation that under the Unfunded Mandates Reform levels of government. The proposed ‘‘would impose an enforceable duty Act. Therefore, a Small Government designation may have some benefit to upon State, local, or Tribal Agency Plan is not required. these governments because the areas governments’’ with two exceptions. It Takings—Executive Order 12630 that contain the features essential to the excludes ‘‘a condition of Federal conservation of the species are more assistance.’’ It also excludes ‘‘a duty In accordance with E.O. 12630 clearly defined, and the physical or arising from participation in a voluntary (Government Actions and Interference biological features of the habitat Federal program,’’ unless the regulation with Constitutionally Protected Private necessary for the conservation of the Property Rights), we have analyzed the ‘‘relates to a then-existing Federal species are specifically identified. This potential takings implications of program under which $500,000,000 or information does not alter where and designating critical habitat for the more is provided annually to State, what federally sponsored activities may Puerto Rican harlequin butterfly in a local, and Tribal governments under occur. However, it may assist State and entitlement authority,’’ if the provision takings implications assessment. The local governments in long-range would ‘‘increase the stringency of Act does not authorize the Service to planning because they no longer have to conditions of assistance’’ or ‘‘place caps regulate private actions on private lands wait for case-by-case section 7 upon, or otherwise decrease, the Federal or confiscate private property as a result consultations to occur. Government’s responsibility to provide of critical habitat designation. funding,’’ and the State, local, or Tribal Designation of critical habitat does not Where State and local governments governments ‘‘lack authority’’ to adjust affect land ownership, or establish any require approval or authorization from a accordingly. At the time of enactment, closures, or restrictions on use of or Federal agency for actions that may these entitlement programs were: access to the designated areas. affect critical habitat, consultation Medicaid; Aid to Families with Furthermore, the designation of critical under section 7(a)(2) of the Act would Dependent Children work programs; habitat does not affect landowner be required. While non-Federal entities Child Nutrition; Food Stamps; Social actions that do not require Federal that receive Federal funding, assistance, Services Block Grants; Vocational funding or permits, nor does it preclude or permits, or that otherwise require Rehabilitation State Grants; Foster Care, development of habitat conservation approval or authorization from a Federal Adoption Assistance, and Independent programs or issuance of incidental take agency for an action, may be indirectly Living; Family Support Welfare permits to permit actions that do require affected by the designation of critical Services; and Child Support Federal funding or permits to go habitat, the legally binding duty to Enforcement. ‘‘Federal private sector forward. However, Federal agencies are avoid destruction or adverse mandate’’ includes a regulation that prohibited from carrying out, funding, modification of critical habitat rests ‘‘would impose an enforceable duty or authorizing actions that would squarely on the Federal agency.

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Civil Justice Reform—Executive Order published a notice outlining our reasons authorized the undersigned to sign and 12988 for this determination in the Federal submit the document to the Office of the In accordance with Executive Order Register on October 25, 1983 (48 FR Federal Register for publication 12988 (Civil Justice Reform), the Office 49244). This position was upheld by the electronically as an official document of of the Solicitor has determined that the U.S. Court of Appeals for the Ninth the U.S. Fish and Wildlife Service. rule would not unduly burden the Circuit (Douglas County v. Babbitt, 48 Aurelia Skipwith, Director, U.S. Fish judicial system and that it meets the F.3d 1495 (9th Cir. 1995), cert. denied and Wildlife Service, approved this requirements of sections 3(a) and 3(b)(2) 516 U.S. 1042 (1996)). document on September 25, 2020, for publication. of the Order. We have proposed Government-to-Government designating critical habitat in Relationship With Tribes Dated: September 25, 2020. accordance with the provisions of the Madonna Baucum, Act. To assist the public in In accordance with the President’s memorandum of April 29, 1994, Regulations and Policy Chief, Division of understanding the habitat needs of the Policy, Economics, Risk Management, and species, this proposed rule identifies the ‘‘Government-to-Government Relations Analytics, Joint Administrative Operations, elements of physical or biological with Native American Tribal U.S. Fish and Wildlife Service. features essential to the conservation of Governments’’ (59 FR 22951), Executive List of Subjects in 50 CFR Part 17 the species. The proposed areas of Order 13175, and the Department of the designated critical habitat are presented Interior’s manual at 512 DM 2, we Endangered and threatened species, on maps, and the proposed rule readily acknowledge our responsibility Exports, Imports, Reporting and provides options for the interested to communicate meaningfully with recordkeeping requirements, public to obtain more detailed location recognized Federal Tribes on a Transportation. information, if desired. government-to-government basis. We have determined that no Tribal lands Proposed Regulation Promulgation Paperwork Reduction Act of 1995 (44 fall within the boundaries of the Accordingly, we propose to amend U.S.C. 3501 et seq.) proposed critical habitat for the Puerto part 17, subchapter B of chapter I, title This rule does not contain Rican harlequin butterfly, so no Tribal 50 of the Code of Federal Regulations, information collection requirements, lands would be affected by the proposed as set forth below: and a submission to the Office of designation. PART 17—ENDANGERED AND Management and Budget (OMB) under References Cited the Paperwork Reduction Act of 1995 THREATENED WILDLIFE AND PLANTS (44 U.S.C. 3501 et seq.) is not required. A complete list of references cited in ■ We may not conduct or sponsor and you this rulemaking is available on the 1. The authority citation for part 17 are not required to respond to a internet at http://www.regulations.gov continues to read as follows: collection of information unless it and upon request from the Caribbean Authority: 16 U.S.C. 1361–1407; 1531– displays a currently valid OMB control Ecological Services Field Office (see FOR 1544; and 4201–4245, unless otherwise number. FURTHER INFORMATION CONTACT). noted. ■ National Environmental Policy Act (42 Authors 2. Amend § 17.11(h) by adding an U.S.C. 4321 et seq.) entry for ‘‘Butterfly, Puerto Rican The primary authors of this proposed harlequin’’ to the List of Endangered It is our position that, outside the rule are the staff members of the Fish and Threatened Wildlife in alphabetical jurisdiction of the U.S. Court of Appeals and Wildlife Service’s Species order under INSECTS to read as set for the Tenth Circuit, we do not need to Assessment Team and the Caribbean forth below: prepare environmental analyses Ecological Services Field Office. pursuant to the National Environmental § 17.11 Endangered and threatened Policy Act (NEPA; 42 U.S.C. 4321 et Signing Authority wildlife. seq.) in connection with designating The Director, U.S. Fish and Wildlife * * * * * critical habitat under the Act. We Service, approved this document and (h) * * *

Listing citations and Common name Scientific name Where listed Status applicable rules

******** INSECTS

******* Butterfly, Puerto Rican Atlantea tulita ...... Wherever found ...... T [Federal Register citation when published as a harlequin. final rule]; 50 CFR 17.47(d);4d 50 CFR 17.95(i).CH

********

■ 3. Amend § 17.47 by adding a (d) Puerto Rican harlequin butterfly under paragraph (d)(2) of this section paragraph (d) to read as set forth below: (Atlantea tulita). and §§ 17.4 and 17.5, it is unlawful for any person subject to the jurisdiction of § 17.47 Special rules—insects. (1) Prohibitions. The following prohibitions that apply to endangered the United States to commit, to attempt * * * * * wildlife also apply to the Puerto Rican to commit, to solicit another to commit, harlequin butterfly. Except as provided

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or cause to be committed, any of the with and reported to the Service in or young secondary dry and moist following acts in regard to this species: writing and approved the first time an serpentine semi-deciduous forest, or (i) Import or export, as set forth at individual or agency undertakes them. both forest types, in subtropical moist § 17.21(b). (E) Projects requiring removal of the forest or subtropical wet forest life (ii) Take, as set forth at § 17.21(c)(1). host plant to access and remove illicit zones. (iii) Possession and other acts with garbage dumps that are potential (iii) Components of forest habitat unlawfully taken specimens, as set forth sources of intentionally set fires, types: The forest habitat types described at § 17.21(d)(1). provided such projects are conducted in in paragraphs (2)(i) and (ii) of this entry (iv) Interstate or foreign commerce in coordination with and reported to the contain: the course of commercial activity, as set Service. (A) Forest area greater than 1 acre that forth at § 17.21(e). (F) Fruit fly trapping by the U.S. is within 1 kilometer of a water source (v) Sale or offer for sale, as set forth Department of Agriculture’s Animal and (stream, pond, puddle, etc.) and other at § 17.21(f). Plant Health Inspection Service, forested area; (2) Exceptions from prohibitions. In provided trapping activities do not (B) Canopy cover between 50 to 85 regard to this species, you may: disturb the host plant. percent and average canopy height (i) Conduct activities as authorized by (v) Possess and engage in other acts ranging from 4 to 8 meters (13.1 to 26.2 a permit under § 17.32. with unlawfully taken wildlife, as set feet); and (ii) Take, as set forth at § 17.21(c)(2) forth at § 17.21(d)(2) for endangered (C) Oplonia spinosa covering more through (c)(4) for endangered wildlife. wildlife. than 30 percent of the understory. (iii) Take as set forth at § 17.31(b). ■ 4. Amend § 17.95(i) by adding an (iv) Take incidental to an otherwise entry for ‘‘Puerto Rican Harlequin (3) Critical habitat does not include lawful activity caused by: Butterfly (Atlantea tulita)’’ in the same manmade structures (such as buildings, (A) Normal agricultural practices, alphabetical order that it appears in the aqueducts, runways, roads, and other including pesticide use, which are table at § 17.11(h), to read as set forth paved areas) and the land on which they carried out in accordance with any below: are located existing within the legal existing regulations, permit and label boundaries on the effective date of the requirements, and best management § 17.95 Critical habitat—fish and wildlife. rule. practices, as long as the practices do not * * * * * (4) Critical habitat map units. Data include clearing or disturbing forest or (i) Insects. layers defining map units were created Oplonia spinosa to create or expand * * * * * by delineating habitats that contain at agricultural areas; or applying pesticides least one or more of the physical or illegally (i.e., in violation of label Puerto Rican Harlequin Butterfly biological features defined in paragraph restrictions) in or adjacent to habitat (Atlantea tulita) (2) of this entry. We use the digital known to be occupied by Puerto Rican (1) Critical habitat units are depicted landcover layer created by the Puerto harlequin butterfly that may result in for Isabela, Quebradillas, Camuy, Rico GAP Analysis Project over a U.S. death or injury of adults, eggs, larvae, or Arecibo, Florida, Ciales, Utuado, Department of Agriculture 2007 digital pupae. Maricao, Yauco, Sabana Grande, and orthophoto mosaic. The resulting (B) Normal residential and urban San Germa´n municipalities, Puerto critical habitat unit was then mapped activities, such as mowing, weeding, Rico, on the maps in this entry. using State Plane North American edging, and fertilizing. (2) Within these areas, the physical or Datum 83 coordinates. The maps in this (C) Maintenance of recreational trails biological features essential to the entry, as modified by any accompanying in Commonwealth Forests by conservation of the Puerto Rican regulatory text, establish the boundaries mechanically clearing vegetation, only harlequin butterfly consist of the of the critical habitat designation. The when approved by or under the following components: coordinates or plot points or both on auspices of the Puerto Rico Department (i) Forest habitat types in the Northern which each map is based are available of Natural and Environmental Karst region in Puerto Rico: Mature to the public at the Service’s internet Resources, or conducted on lands secondary moist limestone evergreen site at https://www.fws.gov/southeast/ established by private organizations or and semi-deciduous forest, or young caribbean, at http:// individuals solely for conservation or secondary moist limestone evergreen www.regulations.gov at Docket No. recreation. and semi-deciduous forest, or both FWS–R4–ES–2020–0083, and at the (D) Habitat management or restoration forest types, in subtropical moist forest field office responsible for this activities expected to provide a benefit or subtropical wet forest life zones. designation. You may obtain field office to Puerto Rican harlequin butterfly or (ii) Forest habitat types in the West- location information by contacting one other sensitive species, including central Volcanic-serpentine region in of the Service regional offices, the removal of nonnative, invasive plants. Puerto Rico: Mature secondary dry and addresses of which are listed at 50 CFR These activities must be coordinated moist serpentine semi-deciduous forest, 2.2.

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(5) Note: Index map follows: BILLING CODE 4333–15–P

(6) Unit 1: IQC; Isabela, Quebradillas, kilometers (15 miles) west of Arecibo. developments, State road PR–2, the and Camuy Municipalities, Puerto Rico. The critical habitat is bounded on the Royal Isabela Golf Course, and some (i) General description: Unit 1 east by the community La Yeguada and deforested areas utilized for agricultural consists of 1,675.7 acres (678.1 hectares) Membrillo in Camuy, on the west by the practices such as cattle grazing. All but located along the northern coastal cliff community Villa Pesquera and Pueblo 5 acres (2 hectares) of Unit 1 are in among the municipalities of Isabela, in Isabela, on the north by the Atlantic private ownership. Quebradillas, and Camuy (IQC), 23 Ocean, and on the south by urban

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(ii) Map of Units 1 and 2 follows:

(7) Unit 2: Guajataca; Isabela and acres (236.1 hectares) are public land, Grande de Arecibo, on the west by Santa Quebradillas Municipalities, Puerto the Guajataca Commonwealth Forest, Rosa Ward in Utuado, on the north by Rico. managed by the Puerto Rico Department Hato Viejo Ward in Arecibo, and on the (i) General description: Unit 2 of Natural and Environmental Resources south by Caguana and Sabana Grande consists of 3,839 acres (1,553.6 hectares) for conservation. Private land in Unit 2 Wards in Utuado. The Rı´o Abajo south of PR 2, between the is 3,255.5 acres (1,317.5 hectares) that is Commonwealth Forest, managed for municipalities Isabela and Quebradillas, a mosaic of agricultural land, roads, conservation by the Puerto Rico 25 kilometers (15.6 miles) southwest of rural developments, and forest. Department of Natural and Arecibo. The critical habitat is bounded (ii) Map of Unit 2 is set forth at Environmental Resources, occupies 77 on the east by the San Antonio ward in paragraph (6)(ii) of this entry. percent (4,544.4 acres (1,839.1 hectares)) Quebradillas, on the west by PR 446 at (8) Unit 3: Rı´o Abajo; Arecibo and of the unit. The other 23 percent Galateo Ward in Isabela, on the north by Utuado Municipalities, Puerto Rico. (1,394.8 acres (564.5 hectares)) is Llanadas Ward in Isabela and Cacao (i) General description: Unit 3 privately owned and is a mosaic of Ward in Quebradillas, and on the south consists of 5,939.2 acres (2,403.6 highways, roads, agriculture, or rural by Montan˜ as de Guarionex, between hectares) located 14.5 kilometers (9 Planas Ward in Isabela and Charcas miles) south of Arecibo. The critical development. Ward in Quebradillas. In Unit 2, 583.5 habitat is bound on the east by the Rı´o

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(ii) Map of Units 3 and 4 follows:

(9) Unit 4: Rı´o Encantado; Arecibo, Department of Natural and miles) southeast of Mayagu¨ ez. The Florida, Ciales, and Utuado Environmental Resources for critical habitat is bound on the east by Municipalities, Puerto Rico. conservation. The other 87 percent Tabonuco Ward in Sabana Grande, on (i) General description: Unit 4 (12,570.8 acres (5,087.2 hectares)) the west by Rosario Ward in San consists of 12,775.6 acres (5,170.1 consists of private lands, some of which Germa´n, on the north by Pueblo Ward hectares) located among the are agricultural fields, roads, and rural in Maricao, and on the south by Guama´ municipalities of Arecibo, Florida, developments, but a majority of which and Santana Wards in San Germa´n. The Ciales, and Utuado, 17 kilometers (10.5 is mature native forest. Maricao Commonwealth Forest, miles) southeast of Arecibo. The critical (ii) Map of Unit 4 is set forth at managed for conservation by the Puerto habitat is bound on the east by Hato paragraph (8)(ii) of this entry. Rico Department of Natural and Viejo Ward in Ciales, on the west by the (10) Unit 5: Maricao; Maricao, Sabana Environmental Resources, occupies 72 ´ ´ Rıo Grande de Arecibo, on the north by Grande, and San German percent (7,883.1 acres (3,190.2 hectares)) Arrozales Ward in Arecibo and Pueblo Municipalities, Puerto Rico. of the unit. The other 28 percent Ward in Florida, and on the south by PR (i) General description: Unit 5 (2,971.5 acres (1,202.5 hectares)) is 146 along Limo´n Ward in Utuado and consists of 10,854.6 acres (4,392.7 Fronto´n Ward in Ciales. Thirteen hectares) on the west end of the private land consisting of a mosaic of percent of the critical habitat (204.8 Cordillerra Central, among the agriculture, rural developments, and acres (82.9 hectares)) is managed by municipalities of Maricao, San Germa´n, forest. Para La Naturaleza or by the Puerto Rico and Sabana Grande, 16.1 kilometers (10

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(ii) Map of Units 5 and 6 follows:

(11) Unit 6: Susu´ a; Sabana Grande west by Pueblo Ward in Sabana Grande, percent (3,010.4 acres (1,218.3 hectares)) and Yauco Municipalities, Puerto Rico. on the north by Frailes Ward in Yauco, is on private lands that are a mosaic of (i) General description: Unit 6 and on the south by PR 368 in Susu´ a agriculture, rural developments, and consists of 6,181.9 acres (2,501.8 Ward in Sabana Grande. The Susu´ a forest. hectares) between the municipalities of Commonwealth Forest, managed by the (ii) Map of Unit 6 is set forth at Sabana Grande and Yauco, 33.6 Puerto Rico Department of Natural and paragraph (10)(ii) of this entry. kilometers (21 miles) northwest of Environmental Resources for * * * * * Ponce. The critical habitat is bound on conservation, occupies 51 percent [FR Doc. 2020–21620 Filed 10–9–20; 8:45 am] the east by the PR 371 in Almacigo Alto (3,171.5 acres (1,283.5 hectares)) of the BILLING CODE 4333–15–C and Collores Wards in Yauco, on the critical habitat in this unit. The other 49

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