Federal Register / Vol. 71, No. 162 / Tuesday, August 22, 2006 / Proposed Rules 48883

18 AAC 50.311. Nonattainment Area Major DEPARTMENT OF THE INTERIOR Office, Road 301 Km. 5.1, Boquero´n, Stationary Source Permits (effective 10/01/ (telephone 787–851–7297). 04) Fish and Wildlife Service FOR FURTHER INFORMATION CONTACT: 18 AAC 50.316. Preconstruction Review for Marelisa Rivera, Fish and Construction or Reconstruction of a Major 50 CFR Part 17 Wildlife Office (see ADDRESSES), Source of Hazardous Air Pollutants RIN 1018–AU76 telephone 787–851–7297 ext. 231; (effective 10/01/04) except (c) facsimile 787–851–7440. 18 AAC 50.326. Title V Operating Permits Endangered and Threatened Wildlife (effective 10/01/04) except (j)(1), (k)(3), SUPPLEMENTARY INFORMATION: and ; Designation of Critical (k)(5), and (k)(6) Habitat for melanocarpa Public Comments Solicited 18 AAC 50.345. Construction and Operating Permits: Standard Permit Conditions We intend that any final action AGENCY: Fish and Wildlife Service, resulting from this proposal will be as (effective 1/18/97) Interior. 18 AAC 50.346. Construction and Operating accurate and as effective as possible. ACTION: Proposed rule. Permits: Other Permit Conditions (effective Therefore, comments or suggestions from the public, other concerned 10/01/04) SUMMARY: We, the U.S. Fish and governmental agencies, the scientific Wildlife Service (Service), propose to Table 7. Emission Unit or Activity, Standard community, industry, or any other designate critical habitat for the Permit Condition interested party concerning this endangered Catesbaea proposed rule are hereby solicited. Article 4. User Fees melanocarpa (no common name) under Comments particularly are sought 18 AAC 50.400. Permit Administration Fees the Endangered Species Act of 1973, as concerning: (effective 1/18/97) except (a), (b), (c)(1), amended (Act). In total, approximately (1) The reasons any habitat should or (c)(3), (c)(6), (i)(2), (i)(3), (m)(3) and (m)(4) 50 acres (ac) (20.2 hectares (ha)) fall should not be determined to be critical 18 AAC 50.403. Negotiated Service within the boundaries of the proposed habitat as provided by section 4 of the Agreements (effective 1/29/05) except (8) critical habitat designation for C. Act (16 U.S.C. 1531 et seq.), including and (9) melanocarpa in one unit located in whether the benefit of designation will 18 AAC 50.405. Transition Process for Permit Christiansted, St. Croix, U.S. Virgin outweigh any threats to the species due Fees (effective 1/29/05) Islands. If made final, this proposal may to designation; 18 AAC 50.410. Emission Fees (effective 1/ result in additional requirements under 18/97) (2) Specific information on the section 7 of the Act for Federal agencies. amount and distribution of Catesbaea 18 AAC 50.499. Definition for User Fee No additional requirements are Requirements (effective 1/29/05) melanocarpa habitat, including areas expected for non-Federal actions. The occupied by C. melanocarpa at the time Article 5. Minor Permits Service seeks comments on all aspects of listing and containing features of this proposal from the public. 18 AAC 50.502. Minor Permits for Air essential to the conservation of the Quality Protection (effective 10/1/04) DATES: We will accept comments from species, and areas not occupied at the except (b)(1), (b)(2), (b)(3) and (b)(5) all interested parties until October 23, listing that are essential to the 18 AAC 50.508. Minor Permits Requested by 2006. We must receive requests for conservation of the species and why; the Owner or Operator (effective 10/1/04) public hearings, in writing, at the (3) Land use designations and current 18 AAC 50.509. Construction of a Pollution address shown in the ADDRESSES section or planned activities in the subject areas Control Project without a Permit (effective by October 6, 2006. and their possible impacts on proposed 10/1/04) ADDRESSES: If you wish to comment, critical habitat; 18 AAC 50.540. Minor Permit: Application you may submit your comments and (4) We have not included lands (effective 10/1/04) materials concerning this proposal by containing features essential to the 18 AAC 50.542. Minor Permit: Review and any one of several methods: conservation of C. melanocarpa within Issuance (effective 10/1/04) except (b)(1), 1. You may submit written comments the Gu´nica and Susu´ a Commonwealth (b)(2), (b)(5), and (d) and information by mail or hand- Forests in Puerto Rico in this proposed 18 AAC 50.544. Minor Permits: Content delivery to Edwin E. Mun˜ iz, Field designation because we believe that the (effective 10/1/04) Supervisor, U.S. Fish and Wildlife Commonwealth Forests provide 18 AAC 50.546. Minor Permits: Revisions Service, Caribbean Fish and Wildlife conservation management and (effective 10/1/04) Office, Road 301 Km. 5.1, P.O. Box 491, protection for these features such that 18 AAC 50.560. General Minor Permits Boquero´n, Puerto Rico 00622. the specific areas do not meet the (effective 10/1/04) except (b) 2. You may send comments by definition of critical habitat. We are Article 9. General Provisions electronic mail (e-mail) to seeking specific comments related to: [email protected]. Please see the (a) Whether our determination to not 18 AAC 50.990. Definitions (effective 1/18/ Public Comments Solicited section include these specific areas in critical 97) below for file format and other habitat is appropriate, and * * * * * information about electronic filing. (b) if our determination is not [FR Doc. E6–13860 Filed 8–21–06; 8:45 am] 3. You may fax your comments to appropriate, then how should we define BILLING CODE 6560–50–P 787–851–7440. the specific areas essential to 4. You may submit comments via the conservation of this plant. Federal E-Rulemaking Portal at http:// (5) Any foreseeable economic, www.regulations.gov. national security, or other potential Comments and materials received, as impacts resulting from the proposed well as supporting documentation used designation and, in particular, any in the preparation of this proposed rule, impacts on small entities; will be available for public inspection, (6) Whether our approach to by appointment, during normal business designating critical habitat could be hours at the Caribbean Fish and Wildlife improved or modified in any way to

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provide for greater public participation Service, have designated critical habitat. Procedural and Resource Difficulties in and understanding, or to assist us in We address the habitat needs of all Designating Critical Habitat accommodating public concerns and 1,310 listed species through We have been inundated with comments; conservation mechanisms such as lawsuits for our failure to designate If you wish to comment, you may listing, section 7 consultations, the critical habitat, and we face a growing submit your comments and materials section 4 recovery planning process, the number of lawsuits challenging critical concerning this proposal by any one of section 9 protective prohibitions of habitat determinations once they are several methods (see ADDRESSES unauthorized take, section 6 funding to made. These lawsuits have subjected the section). Please submit electronic the States, the section 10 incidental take Service to an ever-increasing series of comments to [email protected] in permit process, and cooperative, non- court orders and court-approved ASCII file format and avoid the use of regulatory efforts with private special characters or any form of settlement agreements, compliance with landowners. The Service believes that which now consumes nearly the entire encryption. Please also include ‘‘Attn: these measures may make the difference ’’ in your e-mail listing program budget. This leaves the between extinction and survival for Service with little ability to prioritize its subject header and your name and many species. return address in the body of your activities to direct scarce listing In considering exclusions of areas resources to the listing program actions message. If you do not receive a proposed for designation, we evaluated confirmation from the system that we with the most biologically urgent the benefits of designation in light of species conservation needs. have received your message, contact us Gifford Pinchot Task Force v. U.S. Fish directly by calling our Caribbean Fish The consequence of the critical and Wildlife Service, 378 F. 3d 1059 habitat litigation activity is that limited and Wildlife Office at phone number (9th Cir 2004) (hereinafter Gifford 787–851–7297. listing funds are used to defend active Pinchot). In that case, the Ninth Circuit lawsuits, to respond to Notices of Intent Our practice is to make comments, invalidated the Service’s regulation including names and home addresses of (NOIs) to sue relative to critical habitat, defining ‘‘destruction or adverse and to comply with the growing number respondents, available for public review modification of critical habitat.’’ In during regular business hours. We will of adverse court orders. As a result, response, on December 9, 2004, the not consider anonymous comments, and listing petition responses, the Service’s Director issued guidance to be we will make all comments available for own proposals to list critically considered in making section 7 adverse public inspection in their entirety. imperiled species, and final listing modification determinations. This Comments and materials received will determinations on existing proposals are proposed critical habitat designation be available for public inspection, by all significantly delayed. does not use the invalidated regulation appointment, during normal business The accelerated schedules of court- in our consideration of the benefits of hours at the Caribbean Fish and Wildlife ordered designations have left the including areas in this final designation. Office (see ADDRESSES). Service with limited ability to provide The Service will carefully manage for public participation or to ensure a Role of Critical Habitat in Actual future consultations that analyze defect-free rulemaking process before Practice of Administering and impacts to designated critical habitat, making decisions on listing and critical Implementing the Act particularly those that appear to be habitat proposals, due to the risks Attention to and protection of habitat resulting in an adverse modification associated with noncompliance with is paramount to successful conservation determination. Such consultations will judicially imposed deadlines. This in actions. The role that designation of be reviewed by the Regional Office prior turn fosters a second round of litigation critical habitat plays in protecting to finalizing to ensure that an adequate in which those who fear adverse habitat of listed species, however, is analysis has been conducted that is impacts from critical habitat often misunderstood. As discussed in informed by the Director’s guidance. designations challenge those more detail below in the discussion of On the other hand, to the extent that designations. The cycle of litigation exclusions under section 4(b)(2) of the designation of critical habitat provides appears endless and is very expensive, Act, there are significant limitations on protection, that protection can come at thus diverting resources from the regulatory effect of designation significant social and economic cost. In conservation actions that may provide under section 7(a)(2) of the Act. In brief, addition, the mere administrative relatively more benefit to imperiled (1) Designation provides additional process of designation of critical habitat species. protection to habitat only where there is is expensive, time-consuming, and The costs resulting from the a Federal nexus; (2) the protection is controversial. The current statutory designation include legal costs, the cost relevant only when, in the absence of framework of critical habitat, combined of preparation and publication of the designation, destruction or adverse with past judicial interpretations of the designation, the analysis of the modification of the critical habitat statute, make critical habitat the subject economic effects and the cost of would take place (in other words, other of excessive litigation. As a result, requesting and responding to public statutory or regulatory protections, critical habitat designations are driven comment, and in some cases the costs policies, or other factors relevant to by litigation and courts rather than of compliance with the National agency decision-making would not biology, and made at a time and under Environmental Policy Act (NEPA; 42 prevent the destruction or adverse a time frame that limits our ability to U.S.C. 4321 et seq.). These costs, which modification); and (3) designation of obtain and evaluate the scientific and are not required for many other critical habitat triggers the prohibition other information required to make the conservation actions, directly reduce the of destruction or adverse modification designation most meaningful. funds available for direct and tangible of that habitat, but it does not require In light of these circumstances, the conservation actions. specific actions to restore or improve Service believes that additional agency Background habitat. discretion would allow our focus to Currently, only 475 species or 36 return to those actions that provide the We intend to discuss topics directly percent of the 1,310 listed species in the greatest benefit to the species most in relevant to the designation of critical U.S. under the jurisdiction of the need of protection. habitat in this proposed rule. For more

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information on C. melanocarpa, fruits, but none germinated. Two plants Providencias Saltflats; and another at including characteristics and life previously germinated from St. Croix Punta Meseta, close to the Gua´nica history, refer to the final listing rule seeds were donated to the Gua´nica Lighthouse within the Gua´nica published in the Federal Register on Commonwealth Forest. These plants Commonwealth Forest. Service March 17, 1999 (64 FR 13116) and the died before being planted. Fairchild biologists visited the last location on final recovery plan (July 15, 2005). Tropical Garden in Miami, Florida, March 7, 2006 with personnel from the C. melanocarpa is a perennial spiny collected seeds in 1994 or 1995 and had DNER and did not observe the species of the Madder family (). good germination and survival results in the area. In 2001, C. melanocarpa was Most members of this family are found (O’Reilly 2004). rediscovered at the Gua´nica in the tropics. The Catesbaea Commonwealth Forest (Trejo-Torres Distribution and Abundance consists of 10 or more other species of 2001, p. 62; Axelrod 2004; Trejo-Torres spiny and is generally confined The historical and current range of 2006) in the subtropical dry forest life to the Antilles, but some may extend this species includes Halfpenny Bay in zone. Service biologists visited the site into and the Florida Keys St. Croix, USVI; Gua´nica and Susu´ a in March 2006, and confirmed the (Breckon and Kolterman 1993, p. 1). C. Commonwealth Forests and Pen˜ ones de presence of the species in a slope facing melanocarpa is found in both dry and Melones, PR; and Barbuda, Antigua, and northwest of the Fuerte Trail. moist forest life zones in the Caribbean islands. Prior to 1995, C. Approximately 12 individuals were on the island of Puerto Rico (PR) and in melanocarpa was only known from found within the deciduous forest type. the U.S. Virgin Islands (USVI). The dry Gua´nica, PR; St. Croix in the USVI; and However, this does not represent a forest life zone in PR and USVI occupies Barbuda, Antigua, and Guadeloupe population estimate for this species at about 165,030 ha (407,798 acres) or 18 (Liogier and Martorell 1982, p. 172; the Gua´nica Commonwealth Forest. percent of PR and USVI. The moist Proctor 1991, p. 44; Breckon and This forest contains habitat that is forest life zone occupies 548,220 ha Kolterman 1993, p. 1). Little was known difficult to traverse. It is composed of (1,354,681 acres) or 58 percent of PR about the status of this plant on the dry shrub—scrub vegetation that is and USVI. islands of Antigua, Barbuda, and essentially a dense, thorny thicket of Guadeloupe. One specimen, apparently Life History vegetation. Comprehensive surveys of originating from the Susu´ a the entire forest have not been C. melanocarpa is a branching shrub Commonwealth Forest in Sabana conducted to determine all the locations that may reach approximately 9.8 feet Grande and Yauco, PR, was collected in of C. melanocarpa. Surveys thus far (ft) (3.0 meters (m)) in height. Spines are 1974 and is located in the of have been limited due to habitat from 0.39 to 0.78 inches (in) (1.00 to the University of Puerto Rico in San constraints and resources to existing 2.00 centimeters (cm)) long. Leaves are Juan, PR. Because of the poor condition trails within the forests and have not small, from 0.19 to 1.0 in (5.00 to 25.00 of the specimen, it was not possible to been specifically designed yet to millimeters (mm)) long, and 0.07 to 0.58 confirm its identification as C. systematically look for C. melanocarpa. in (2.00 to 15.00 mm) wide, often melanocarpa (Breckon and Kolterman Axelrod (2004) anticipates, though, that opposite. The flowers are white, solitary 1993, p. 1). this plant will be found in more or paired, and almost lacking a stalk in In St. Croix, USVI, C. melanocarpa locations in Gua´nica Commonwealth the axils (angle formed by a leaf or was first collected in 1881 by the Danish Forest and other places as more branch with the stem) (Proctor 1991, p. collector Baron H.F.A. von Eggers inventories are conducted. 44). (Proctor 1991, p. 43). The species was Within the subtropical moist forest Biological and ecological information re-discovered in Halfpenny Bay by Rudy life zone, the species has only been on C. melanocarpa is scarce. In July G. O’Reilly, Jr., who found a small reported from the Susu´ a Commonwealth 1992, Breckon and Kolterman (1993, p. population (approximately seven Forest. C. melanocarpa has been 2) measured stem height and basal individuals) in a dry coastal plain reported in Susu´ a twice in thirty years: diameter for the 24 individuals known located about 2.5 miles (4 km) south of in 1974 by Woodbury (Breckon and from St. Croix. Stem height ranged from Christiansted in August 1988 (Breckon Kolterman 1993, p. 1) and in 2003 0.36 to 9.91 ft (0.11 to 3.02 m) and and Kolterman 1993, pp. 1–2). Voucher (Trejo-Torres 2003, 2006). The averaged 2.59 ft (0.79 m). Basal stem specimens of these plants were occurrence of C. melanocarpa in Susu´ a diameter ranged from 0.16 to 2.20 in collected by G.R. Proctor on September, Commonwealth Forest was confirmed in (0.40 to 5.60 cm). In December 1992, 1988 (Proctor 1991, p. 43). The voucher 2003 when Trejo-Torres found the reproduction was checked, and while describes the plants growing in pasture, species in flower at the forest (Trejo- no flowers were observed, many adults shaded by Cassia poplyphylla (retama Torres 2003, 2006). Trejo-Torres (greater than 1.64 ft (0.50 m) in height) prieta) and other tall shrubs in the submitted the collection voucher and were in fruit (Breckon and Kolterman subtropical dry forest life zone. This the photography of the individual to the 1993, p. 2). In St. Croix, we observed the population was estimated to consist of Service. Similar to the Gua´nica species with fruit in early March 2006. 24 individuals in July 1992 (Breckon Commonwealth Forest, we do not have Only a few seed germination and and Kolterman 1993, p. 2). In October a comprehensive population estimate propagation experiments have been 2002, one hundred individuals were for the Susu´ a Commonwealth Forest conducted on C. melanocarpa (Breckon estimated to occur at this same location because systematic surveys of all and Kolterman 1993, p. 2). In August (Lombard 2002). suitable habitat have not been 1988, seeds and plants were collected In Gua´nica, PR, C. melanocarpa was conducted. This forest also is composed from the St. Croix location. Most of the first collected by the German collector of dense vegetation, making it difficult transplanted seedlings have survived, Paul Sintenis in 1886 (Proctor 1991, p. to traverse. and two have produced flowers and 43). Based on information in the Natural At the time of listing in 1999, C. fruits. Of 57 seeds collected in Heritage Program of the Puerto Rico melanocarpa was known from one December 1990, 92 percent germinated, Department of Natural and individual located on the Pen˜ ones de but only five of the seedlings survived. Environmental Resources (DNER), two Melones in Cabo Rojo, PR (about 16 In 1993, two fruits were collected. Ten historical collections are reported from miles (mi) or 25 kilometers (km) from seeds were obtained from these two Gua´nica: one in Cerro Montalva, west to Gua´nica); about 24 individuals located

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on one privately owned farm in common tree or shrub species of associated tree and shrub species in this Halfpenny Bay near Christiansted in St. subtropical dry forest include: Prosopis vegetation type are Bucida buceras Croix, USVI; and an undetermined juliflora (mesquite or bayahonda), (u´ car), Bursera simaruba (alma´cigo), number of individuals on Barbuda, Bursera simaruba (alma´cigo), Coccoloba microstachya (uvillo), C. Antigua, and Guadeloupe (64 FR 13116, Cephalocereus royenii (sebuca´n), krugii, and Reynosia uncinata March 17, 1999; Puerto Rico Planning Bucida buceras (u´ car), and Guaiacum (chicharro´n) (Silander et al. 1986, p. 69). Board 1995, p. 29; Proctor 1991, p. 44; officinalis (guayaca´n). Tree heights C. melanocarpa is currently known Breckon and Kolterman 1993, p. 1; usually do not exceed 49.2 ft (15 m), from Susu´ a Commonwealth Forest, USFWS 2005, p. 3). At the time of and crowns are typically broad, which is within the subtropical moist listing, Susu´ a Commonwealth Forest spreading, and flattened. Successional life zone of Puerto Rico. The subtropical was recognized as part of the historical vegetation includes grasses, and the moist forest is delineated by a mean distribution of the species; however, the accumulated organic debris serves as annual rainfall ranging from 39 to 86 in occurrence within the forest could not fuel for human-induced fires (Ewel and (100 to 220 cm) (Ewel and Whitmore be confirmed since the collection Whitmore 1973, pp. 10–29). Extensive 1973, pp. 20–29). Vegetation material deposited at the herbarium in areas of this life zone in Puerto Rico lie associations within this life zone are San Juan was in poor condition. over limestone. Within the subtropical characterized by trees up to 65.6 ft (20 Currently, we have observed that the dry forest life zone, the species m) tall with rounded crowns. Many of species, within U.S. jurisdiction (PR and currently occurs in Gua´nica the woody species are deciduous during USVI), occupies three discrete localities: Commonwealth Forest in PR and the dry season and epiphytes are (1) Approximately 100 individuals at a Halfpenny Bay in St. Croix, USVI. common. Some common tree or shrub privately owned farm in Halfpenny Bay In Halfpenny Bay, the currently species of subtropical moist forest (Lombard 2002); (2) approximately 12 known population consists of about 100 include: Roystonea borinquena (palma individuals located at the Fuerte Trail in individuals located in a dry, coastal real), Tabebuia heterophylla (roble Gua´nica Commonwealth Forest, plain with soils belonging to the Glynn- blanco), Nectandra spp. (laurel), Gua´nica, Guayanilla, and Yauco, PR Hogensborg Unit (NRCS 1998, pp. 63– Erythrina poeppigiana (bucayo gigante), (Axelrod 2004; Trejo-Torres 2001, p. 64). The vegetation as observed by the Inga vera (guaba), Inga laurina (guama´), 62), and (3) one individual located at Service in 2006 is composed of patches and Didymopanax morototoni (yagrumo the Susu´ a Commonwealth Forest, of dry woody vegetation (trees and macho) (Ewel and Whitmore 1973, pp. Sabana Grande and Yauco, PR (Trejo- shrubs), surrounded by grasses and C. 20–29). The Susu´ a Commonwealth Torres 2006). melanocarpa is found under the canopy Forest represents not only the influence The site in Pen˜ ones de Melones, of these forested patches. The habitat of a climatic transition zone (dry to where the species was reported in 1995, characteristics of the site coincide with moist), but also a combination of has experienced periodic land clearing previous habitat descriptions for the volcanic and serpentine soils. Two activities and road construction based species (Liogier and Martorell 1982, p. vegetation associations (dry slope forest on our observations in 2002 and 2006 172; USFWS 2005, p. 6). The average and gallery forest) have been delineated (Foote 2002; Axelrod 2004; Axelrod annual precipitation in the area ranges in the subtropical moist life zone (DNR 2006). Several survey efforts have been from 30.0 to 54.7 in (762.0 to 1389.0 1976, p. 224). C. melanocarpa is found conducted in the area by the Service mm) (NRCS 1998, pp. 63–64). within the dry slope forest type. The and others; however, to date, no The currently known population in climatic conditions and serpentine- individuals of C. melanocarpa have the Gua´nica Commonwealth Forest derived soils contribute to more xeric been located (Foote 2002; Axelrod 2004; consists of approximately 12 conditions and a forest structure and Axelrod 2006; Oikos Environmental individuals located on a slope species composition very similar to the Services 2005, p. 27). northwest of the Fuerte Trail. In 2006, Gua´nica Commonwealth Forest. In we observed that the vegetation within Habitat Description 2001, Trejo-Torres (2003, 2006) this locality is characterized by dry rediscovered the species in the Susu´ a C. melanocarpa has been found to forest with semi-closed canopy on Commonwealth Forest. One individual occur only in the subtropical dry and limestone soils and the species is found in flower was located in the forest. The subtropical moist forest life zones. under the canopy. The Gua´nica individual was found on a rocky ravine Based on our field observations, the Commonwealth Forest is located in west of Quebrada los Peces, at the currently occupied sites for this plant southwestern PR in the municipalities southwestern corner of the public forest. all fall into these forest life zones, and of Gua´nica, Guayanilla, and Yauco. The The habitat is described as low forest on have similar habitat characteristics. The forest was designated as a forest reserve serpentine soil. subtropical dry forest is considered the in 1919 and a United Nations Biosphere In Pen˜ ones de Melones, Cabo Rojo, driest life zone in PR and the USVI, Reserve in 1981. It is managed by the PR, C. melanocarpa was discovered by receiving a mean annual rainfall ranging DNER. The Gua´nica Forest supports a Dr. F. Axelrod of the University of from 24 to 40 in (60 to 100 cm). Ewel variety of vegetation types, including Puerto Rico in February 1995 (PRPB and Whitmore (1973, pp. 10–20) cactus scrub, littoral forest, deciduous 1995, p. 29). The collection voucher described the vegetation in this zone as forest, and semi-evergreen forest deposited in the University of Puerto deciduous on most soils with most tree (Silander et al. 1986, pp. 60–66). The Rico in San Juan describes the location species dropping leaves during the dry forest is underlain by limestone in Boquero´n Ward, Cabo Rojo, PR, at the season. The vegetation usually consists sedimentary rocks of Tertiary Period upper west slopes of Pen˜ ones de of a nearly continuous single-layered origin, and soils are shallow, well- Melones from 164 to 295 ft (50 to 90 m) canopy with little ground cover. The drained, and alkaline (Silander et al. above sea level. The voucher described leaves of dry forest species are often 1986, p. 51). Outcrops cover much of the habitat as dry forget on limestone, succulent or coriaceous (leathery), and the area. Mean annual precipitation in and the collection was made from a 7 species with spines and thorns are the Gua´nica area is approximately 31 in ft (2 m) shrub with green globose common. The vegetation in these areas (790 mm). C. melanocarpa is found in (spherical) fruit. The Pen˜ ones de is more xerophilous (drought resistant), the deciduous forest. In this forest type, Melones area consists of several chains and cacti are more abundant. Some trees often reach 33 ft (10 m). Some of limestone hills and drainages

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(ravines) surrounded by mangrove drainage area facing north, demonstrates critical habitat to the Federal Register forests, mud flats, saltwater and vegetation characteristics consistent by August 15, 2006, and a final freshwater lagoons, wooded lands, with previous land clearing activities. designation by August 15, 2007. extensive pastures, and residential The area consists of dense woodland Critical Habitat projects. The elevation ranges from 3.3 dominated by mesquite trees. The to 347.7 ft (1 to 106 m) above sea level. ravine and hillsides located to the south Critical habitat is defined in section 3 The limestone hill soils belong to San of Pen˜ ones de Melones have also been of the Act as: (i) The specific areas Germa´n Series (San Germa´n Stony Clay cleared by bulldozing activities and within the geographical area occupied Loam or SmE) described as shallow and consist of dense woodlands dominated by a species, at the time it is listed in very shallow, strongly sloping and by mesquite trees in the lower area and accordance with the Act, on which are steep, well-drained, cobbly and stony a solid stand of fire bush (Croton found those physical or biological soils on the limestone hills and lucidus) on the hillsides. Based on features (I) Essential to the conservation mountains (Soil Conservation Survey Service observations, the secondary dry of the species and (II) that may require 1965, pp. 114–115). Average annual forest vegetation that supported habitat special management considerations or precipitation in Cabo Rojo is for C. melanocarpa has been eliminated. protection; and (ii) specific areas approximately 34 in (874 mm) (USFWS outside the geographical area occupied Summary of Threats 2004). by a species at the time it is listed, upon Several vegetation surveys have been C. melanocarpa is threatened by small a determination that such areas are conducted in the Pen˜ ones de Melones population sizes characterized by the essential for the conservation of the area in the last 20 years. Dr. Axelrod limited number of individuals and species. Conservation, as defined under reported 84 species at the distribution, habitat destruction or section 3 of the Act, means to use and site in 1995 (PRPB 1995, pp. 25–29). In modification for residential and tourist the use of all methods and procedures 2005, Dr. H.E. Quintero conducted a development, fire, and catastrophic that are necessary to bring any flora and fauna study at the site and natural events such as hurricanes endangered species or threatened found that vegetation types are not (USFWS 2005, p. 8). Periodic land- species to the point at which the uniform and there were patches of clearing activities have been measures provided under the Act are no distinct forests, woodlands, shrub lands, documented by the Service and others longer necessary. and grasslands (Oikos Environmental in the Pen˜ ones de Melones area in Cabo Critical habitat receives protection Services 2005, p. 10). In August 2002, Rojo (Foote 2002; Axelrod 2004; 2006). under section 7 of the Act through the Service biologists visited the Pen˜ ones de The Halfpenny Bay site is a privately prohibition against destruction or Melones area with Dr. Axelrod to owned agricultural tract that is subject adverse modification of critical habitat identify the site where the species was to intense but periodic grazing. Based with regard to actions carried out, discovered in 1995. The main part of the on information gathered during our site funded, or authorized by a Federal drainage, where C. melanocarpa was visit, most of the site was burned by a agency. Section 7 requires consultation previously observed, showed signs of human-induced fire in 1997 (Hamada on Federal actions that are likely to disturbance from periodic land clearing 2006). This population is subject to result in the destruction or adverse and road construction. They observed in impacts from cattle grazing activities as modification of critical habitat. The August 2002 that the area had not been well as pressure for a golf course designation of critical habitat does not disturbed for several years and showed development (USFWS 2005, p. 8). The affect land ownership or establish a excessive growth of Acacia sp. in limited number of individuals and refuge, wilderness, reserve, preserve, or disturbed areas exposed to more restricted distribution make the species other conservation area. Such sunlight. They noted that the area was vulnerable to catastrophic events, such designation does not allow government covered with secondary vegetation with as hurricane damage and human- or public access to private lands. such species as Acacia farnesiana induced fires. To be included in a critical habitat designation, the habitat within the area (aroma) and Prosopis juliflora Previous Federal Actions (mesquite). Although the species was occupied by the species at the time it not found, Service biologists concluded For more information on previous was listed must first have features that that C. melanocarpa may be present, but Federal actions concerning C. are essential to the conservation of the the conditions of the habitat were not melanocarpa, refer to the final listing species. Critical habitat designations suitable to appropriately locate and rule (64 FR 13116, March 17, 1999). We identify, to the extent known using the identify the species (Foote 2002). listed C. melanocarpa as endangered best scientific data available, habitat In 2004, Dr. Axelrod provided under the Act on March 17, 1999 (64 FR areas that provide essential life cycle comments to the Service regarding the 13116) and approved a final recovery needs of the species (areas on which are occurrence of the species in the Pen˜ ones plan for this plant on July 15, 2005 found the primary constituent elements de Melones area. He reported that, since (USFWS 2005). In the 1999 final listing (PCEs), as defined at 50 CFR 424.12(b)). his report of the species on the north rule, we determined designation of Habitat occupied at the time of listing side of Punta Melones, he found it once critical habitat was not prudent. On may be included in critical habitat only again in 2002 in a ravine on the south September 17, 2004, the Center for if the essential features thereon may side of Punta Melones. He reported that, Biological Diversity filed a lawsuit require special management or when he returned to the site in 2004, the against the Department of the Interior protection. Thus, we do not include ravine on the south had been entirely and the Service [Center for Biological areas where existing management is bulldozed. In March 2006, Service Diversity v. Norton (CV–00293-JDB) sufficient to conserve the species. [As biologists visited these two sites on (D.D.C.)], challenging the failure to discussed below, such areas may also be three occasions. The drainage area designate critical habitat for C. excluded from critical habitat.] facing north of the Pen˜ ones de Melones melanocarpa. In a settlement agreement Furthermore, when the best available (area reported by Axelrod in 1995) was dated June 3, 2005, the Service agreed scientific data do not demonstrate that searched for the species, as well as the to reevaluate the prudency of critical the conservation needs of the species hills, the slopes, and drainages facing habitat for this species and, if prudent, require additional areas, we will not south of the hills. The original site, the submit a proposed designation of designate critical habitat in areas

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outside the geographical area occupied the section 7(a)(2) jeopardy standard, as thus, we cannot say that designation by the species at the time of listing. determined on the basis of the best would increase the likelihood of take. However, an area that was not known to available information at the time of the Accordingly, we withdraw our be occupied at the time of listing but is action. Federally funded or permitted previous determination that the currently occupied by the species will projects affecting listed species outside designation of critical habitat will not likely be essential to the conservation of their designated critical habitat areas benefit C. melanocarpa and will the species and, therefore, typically may still result in jeopardy findings in increase the degree of threat to the included in the critical habitat some cases. Similarly, critical habitat species. We determine that the designation. designations made on the basis of the designation of critical habitat is prudent The Service’s Policy on Information best available information at the time of for this species. At this time, we have Standards Under the Endangered designation will not control the sufficient information necessary to Species Act, published in the Federal direction and substance of future identify specific areas that meet the Register on July 1, 1994 (59 FR 34271), recovery plans, habitat conservation definition of critical habitat and are, and Section 515 of the Treasury and plans, or other species conservation therefore, proposing critical habitat for General Government Appropriations planning efforts if new information C. melanocarpa. Act for Fiscal Year 2001 (P.L. 106–554; available to these planning efforts calls Methods H.R. 5658) and the associated for a different outcome. Information Quality Guidelines issued As required by section 4(b) of the Act, by the Service, provide criteria, Prudency Determination we use the best scientific data available establish procedures, and provide Section 4(a)(3) of the Act and its in determining areas that were occupied guidance to ensure that decisions made implementing regulations (50 CFR at the time of listing that contain the by the Service represent the best 424.12) require that, to the maximum features that are essential to the scientific data available. They require extent prudent and determinable, we conservation of C. melanocarpa and Service biologists to the extent designate critical habitat at the time a other areas that are essential to the consistent with the Act and with the use species is listed as endangered or conservation of this species. We of the best scientific data available, to threatened. Our regulations at 50 CFR reviewed the approach to conservation use primary and original sources of 424.12(a)(1) state that the designation of of the species undertaken by local, information as the basis for critical habitat is not prudent when one State, and Federal agencies operating recommendations to designate critical or both of the following situations exist: within the species’ range since its habitat. When determining which areas (1) The species is threatened by taking listing, as well as the actions necessary are critical habitat, a primary source of or other activity and the identification for this plant’s conservation as information is generally the listing of critical habitat can be expected to identified in the final recovery plan package for the species. Additional increase the degree of threat to the (USFWS 2005). We reviewed available information sources include the species; or (2) such designation of information that pertains to the habitat recovery plan for the species, articles in critical habitat would not be beneficial requirements of this species. This peer-reviewed journals, conservation to the species. In our March 17, 1999, information included: data from our plans developed by States and counties, final rule (64 FR 13116), we determined files that we used for listing the species; scientific status surveys and studies, that designating critical habitat was not peer-reviewed scientific publications; biological assessments, or other prudent for C. melanocarpa because it biological field surveys and reports; unpublished materials and expert would result in no known benefit to the resource agencies’ and universities’ opinion or personal knowledge. All species and could further pose a threat unpublished status reports; information information is used in accordance with to the species through publication of and GIS maps (forest boundaries, the provisions of Section 515 of the site-specific localities. topography, drainages, roads) from the Treasury and General Government We are already working with Federal Puerto Rico Planning Board and Puerto Appropriations Act for Fiscal Year 2001 and State agencies, private individuals, Rico Department of Natural and (Pub. L. 106–554; H.R. 5658) and the and organizations in carrying out Environmental Resources; soil maps and associated Information Quality conservation activities for C. manuals from Natural Resources Guidelines issued by the Service. melanocarpa, conducting surveys for Conservation Service (former Soil Section 4 of the Act requires that we additional occurrences, and assessing Conservation Service); U.S. Geological designate critical habitat on the basis of habitat conditions. However, critical Survey topographic maps (scale the best scientific data available. Habitat habitat designation may be beneficial by 1:20,000); recent aerial photography; is often dynamic, and species may move providing additional information to unpublished data and observations from one area to another over time. individuals, local and State collected by Service biologists during Furthermore, we recognize that governments, and other entities engaged recent field surveys; forest management designation of critical habitat may not in long-range planning, because areas plans from local agencies; the C. include all of the habitat areas that may with features essential to the melanocarpa recovery plan; information eventually be determined to be conservation of the species are clearly received from and discussions with necessary for the recovery of the delineated and, to the extent currently local (PR and USVI) botanists and species. For these reasons, critical feasible, the primary constituent researchers working with the species habitat designations do not signal that elements of the habitat essential for and its habitat; and herbarium habitat outside the designation is conservation of the species are collections. We also made several recent unimportant or may not be required for specifically identified. Furthermore, visits to all currently known localities recovery. although the low numbers of this plant (Halfpenny Bay, Pen˜ ones de Melones, Areas that support populations, but make it unlikely that its populations Gua´nica Commonwealth Forest, and are outside the critical habitat could withstand even moderate Susu´ a Commonwealth Forest) to gather designation, will continue to be subject collecting pressure or vandalism, we do abundance and distribution data and to conservation actions implemented not have specific evidence of taking, conduct habitat observations. under section 7(a)(1) of the Act and to collection, vandalism, trade, or Information from all sources was the regulatory protections afforded by unauthorized human disturbance and utilized to determine the species’ range

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and habitat features needed to support presence of sexual reproduction Some associated dry forest vegetation in life history functions essential to the indicates that the species has the this locality include uvillo (Coccoloba conservation of the species. potential to produce viable populations, microstachya), C. diversifolia (uvilla), Fewer than 115 individuals are with the assistance of appropriate Thouinia portoricensis (quebracho), known to occur in three discrete conservation strategies. Guettarda elliptica (cucubano liso), localities throughout PR and the USVI, C. melanocarpa is currently known alhelı´, Croton lucidus, Savia sessiliflora and no additional sightings for the from both the subtropical dry forest and (amansa guapo), Pithecellobium unguis- species have been reported in other subtropical moist forest life zones of PR cati (un˜ a de gato), Guaiacum sanctum areas. The locality where the majority of and the USVI. Except for one locality, (guayaca´n), Leucaena leucocephala the individuals occur (about 100 plants) the historical and current range of the (zarcilla), among other common species is a relatively small (50 ac, or 20 ha) species is within dry forest life zone. (Trejo-Torres 2001, pp. 59–63). privately owned cattle grazing parcel The Susu´ a Commonwealth Forest is the Susu´ a Commonwealth Forest is under current threat of development only locality that is not dry forest; located in southwestern Puerto Rico in pressure in St. Croix. The two other however, based on our observations the municipalities of Yauco and Sabana localities are publicly owned and because of its serpentine soils, the Grande. The Susu´ a Forest lies between support the only known individuals of vegetation structure and species the humid Central Cordillera and the C. melanocarpa in PR. In the three composition are similar to dry forest dry coastal plains typical of the south areas, C. melanocarpa is associated with habitat (Breckon and Garcı´a 2001; coast. The forest represents not only the dry woody vegetation occupying the Silander et al. 1986, p. 243). In all three influence of a climatic transition zone understory strata. The conservation of C. localities, the species is under the (dry to moist), but also a combination of melanocarpa depends upon the canopy of trees and shrubs, and all volcanic and serpentine soils protection of existing populations and localities in PR are forested hills (Department of Natural Resources 1976, the maintenance of ecological functions associated with either limestone or p. 24). The majority of the forest (90 within these sites, including vegetation serpentine soils. The locality in St. percent) is underlain by serpentine and soils characteristics essential to the Croix, based on Service observations, is outcrop. The rest of the forest (10 conservation of the species. Therefore, a coastal plain with patches or thickets percent) has nine other soil types that we considered, but are not proposing of trees and shrubs characteristic of dry belong to the Caguabo-Mu´ caro any areas outside the geographical area forest habitat. association (Silander et al. 1986, p. 224– presently occupied by the species. Within the subtropical dry and moist 226; Soil Conservation Survey 1975, p. forest life zones, C. melanocarpa has 9). These soils are described as slightly Primary Constituent Elements (PCEs) been reported from four discrete sites leached, loamy and clay, sticky and In accordance with section 3(5)(A)(i) within the U.S. Caribbean: Halfpenny plastic soils underlain by hard or of the Act and regulations at 50 CFR Bay, Pen˜ ones de Melones, the Gua´nica weathered rock at a depth of less than 424.12, we are required to base critical Commonwealth Forest, and the Susu´ a 30 inches (Soil Conservation Survey habitat determinations on the best Commonwealth Forest. However, the 1975, p. 9). Serpentine-derived soils scientific data available and to consider species presently occupies only create stressful conditions for the within areas occupied by the species at Halfpenny Bay in St. Croix, USVI, the establishment and growth of plants, and the time of listing those physical and Gua´nica Commonwealth Forest, PR, and their associated floras are characterized biological features that are essential to the Susu´ a Commonwealth Forest, PR. by high diversity and endemism the conservation of the species (PCEs), Vegetation at the Halfpenny Bay site (Ceden˜ o-Maldonado and Breckon 1996, and that may require special comprised of dry thicket scrub p. 348). Two vegetation associations management considerations or vegetation, dominated by grasses with (dry slope forest and gallery forest) have protection. These include, but are not patches of trees and shrubs (USFWS been delineated in the subtropical moist limited to, space for individual and 2005, pp. 6–7). Based on Service life zone (Department of Natural population growth and for normal observations during a site visit Resources 1976, p. 224). The trees are behavior; food, water, air, light, conducted on March 1 and 2, 2006, C. slender, open-crowned, and usually less minerals, or other nutritional or melanocarpa is an understory species, than 39.4 ft (12m) tall. The forest floor physiological requirements; cover or currently growing below trees and is open because the excessively drained shelter; sites for reproduction, shrubs characteristic of dry forest soil supports little herbaceous growth germination, or seed dispersal; and habitat. Associated flora include (Ewel and Whitmore 1973, p. 25). C. habitats that are protected from introduced grass species, Caesalpinia melanocarpa is found in the dry slope disturbance or are representative of the coriaria (dividive), Tamarindus indica forest type. The climatic conditions and historic geographical and ecological (tamarind), Castela erecta (goat-bush), serpentine-derived soils contribute to distributions of a species. Acacia turtuosa (acacia), Cassia more xeric conditions and a forest The specific PCEs required for C. poplyphylla (retama prieta), Leucaena structure and species composition melanocarpa are derived from the leucocephala (tan-tan), Randia aculeata similar to the Gua´nica Commonwealth biological needs of the species, and (box-briar or tintillo), and Cordia alba Forest based on observations by the include those habitat components (white manjack). Soils in the Halfpenny Service and others (Silander et al. 1986, needed for growth and development, Bay site have been described as pp. 239–245; Breckon and Garcı´a 2001). flower production, pollination, seed set belonging to the Glynn-Hogensborg unit, and fruit production, and genetic which consists of very deep, well Primary Constituent Elements for C. exchange. Although at present time the drained, nearly level to moderately melanocarpa information on the species’ biological steep soils (NRCS 1998, pp. 63–64). In accordance with our regulations, and ecological needs is limited (USFWS We observed the vegetation within the we are required to identify the known 2005, p. 7), habitat characteristics Gua´nica Commonwealth Forest locality physical and biological features (PCEs) supporting all three currently known in 2006 as dry forest with semi-closed essential to the conservation of C. localities are known. Additionally, canopy on limestone soils. The species melanocarpa. All proposed critical individuals in all three localities have is found under the canopy. In this forest habitat for C. melanocarpa is occupied, been documented in fruit or flower. The type, trees often reach 33 ft (10 m). within the species’ current and historic

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

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conservation of the subspecies, they are the public comment period. If fire-breaks adjacent to existing roads not being included in this proposal (see additional information becomes and farm boundaries during dry season, Application of section 3(5)(A) of the Act available on the species’ biology, establishing conservation agreements section) because they do not meet the distribution, and threats, we will with landowners to protect individuals definition of critical habitat under evaluate the need to revise critical within the property, collecting seeds section 3(5)(A) of the Act. habitat, or refine the boundaries of and cuttings to establish a propagation When determining proposed critical critical habitat as appropriate. Sites that program, and establishing additional habitat boundaries, we made every are occupied by this plant that are not patches of forest vegetation to plant effort to avoid including within the being designated for critical habitat will additional individuals to augment boundaries of the map contained in this continue to receive protection under the existing populations within the site proposed rule areas already developed Act’s section 7 jeopardy standard where Proposed Critical Habitat Designation such as buildings, paved areas, and a Federal nexus may occur (see ‘‘Critical other structures in areas where the PCEs Habitat’’ section). We are proposing Halfpenny Bay in for C. melanocarpa are not present. The We are proposing to designate critical Christiansted, St. Croix, USVI as critical scale of the maps prepared under the habitat on lands in need of special habitat for C. melanocarpa. This critical parameters for publication within the management or protection and on those habitat unit described below constitutes Code of Federal Regulations may not that we have determined to be currently our best assessment at this time of areas reflect the exclusion of such developed occupied by the species or occupied at we determined to be occupied at the areas. Any such structures and the land the time of listing and which contain time of listing, containing the primary under them inadvertently left inside sufficient PCEs to support life history constituent elements, and which may critical habitat boundaries shown on the functions essential for the conservation require special management. All of the maps of this proposed rule have been of the species. areas identified in this rule as occupied, excluded by text in the proposed rule including those in the Commonwealth and are not proposed for designation as Special Management Considerations or Forests managed by DNER that do not critical habitat. Therefore, Federal Protections meet the definition of critical habitat actions limited to these areas would not When designating critical habitat, we (see Application of Section 3(5)(A) of trigger section 7 consultation, unless assess whether the areas determined to the Act section), are necessary to they affect the species or primary be occupied at the time of listing conserve the species. Appropriate constituent elements in adjacent critical contain the PCEs that may require management and protection will habitat. To the extent feasible, we will special management considerations or support reproduction, recruitment, continue, with the assistance of other protection. As discussed in detail here adaptation to catastrophic events and State, Federal, and private researchers, and in the unit descriptions below, we genetic diversity (Primack 2000, pp. to conduct surveys, research, and find that all of the PCEs in Halfpenny 124–133; Falk et al. 1996, pp. 113–119) conservation actions on the species and Bay may require special management as identified using the best available its habitat in areas designated and not considerations or protection due to data. designated as critical habitat. We threats to the species or its habitat. Such Table 1 provides the approximate area anticipate that the boundaries of the management considerations and (acres, hectares) and land ownership of mapped units may be refined based on protections include: fencing off forest lands determined to meet the definition additional information received during patches to exclude cattle, developing of critical habitat and proposed.

TABLE 1.—LANDS DETERMINED TO MEET THE DEFINITION OF CRITICAL HABITAT FOR C. Melanocarpa, LAND OWNERSHIP, APPROXIMATE AREA (ACRES, HECTARES)

Definitional area Critical habitat unit, location Land ownership acres (hectares)

Halfpenny Bay St. Croix, USVI ...... Private ...... 50 (20.23) Total ...... 50 (20.23)

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

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

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Application of the Jeopardy and habitat and therefore result in will provide the same level of protection Adverse Modification Standards for consultation for C. melanocarpa that designation of critical habitat Actions Involving Effects to C. include, but are not limited to: would provide. The plan need not lead melanocarpa and Its Critical Habitat (1) Actions that would reduce or to exactly the same result as a degrade dry thicket scrub areas designation in every individual Jeopardy Standard dominated by patches of trees and application, as long as the protection it Prior to and following designation of shrubs in the Halfpenny Bay area. Such provides is equivalent, overall. In critical habitat, the Service has applied activities could include vegetation making this determination, we examine an analytical framework for C. clearing, intensive and extensive cattle whether the plan provides management, melanocarpa jeopardy analyses that grazing activities, and fire. Dry forest protection, or enhancement of the PCEs relies on the importance of core area species in the Caribbean are not fire- that is at least equivalent to that populations to the survival and recovery resistant species. provided by a critical habitat of C. melanocarpa. The section 7(a)(2) (2) Earth movement activities using designation, and whether there is a analysis is focused not only on these heavy machinery within critical habitat reasonable expectation that the populations but also on the habitat that may result in changes in quantity management, protection, or conditions necessary to support them. and quality of soils within designated enhancement actions will continue into The jeopardy analysis usually critical habitat. the foreseeable future. Each review is expresses the survival and recovery We consider the proposed critical particular to the species and the plan, needs of C. melanocarpa in a qualitative habitat to contain features essential to and some plans may be adequate for fashion without making distinctions the conservation of C. melanocarpa and some species and inadequate for others. between what is necessary for survival to be in the geographic range of the We consider a current plan to provide and what is necessary for recovery. species. The Halfpenny Bay area was adequate management or protection if it Generally, if a proposed Federal action occupied by the species at the time of meets three criteria: (1) The plan is is incompatible with the viability of the listing (64 FR 13116, March 17, 1999; complete and provides the same or affected core area population(s), Proctor 1991, pp. 43–44; Breckon and better level of protection from adverse inclusive of associated habitat Kolterman 1993, p. 1). Federal agencies modification or destruction than that conditions, a jeopardy finding is already consult with us on activities in provided through a consultation under warranted because of the relationship of areas currently occupied by C. section 7 of the Act; (2) there is a each core area population to the melanocarpa, or if the species may be reasonable expectation that the survival and recovery of the species as affected by the action, to ensure that conservation management strategies and a whole. their actions do not jeopardize the actions will be implemented based on continued existence of C. melanocarpa. Adverse Modification Standard past practices, written guidance, or Application of Section 3(5)(A) of the Act regulations; and (3) the plan provides The analytical framework described conservation strategies and measures in the Director’s December 9, 2004, Section 3(5)(A) of the Act defines consistent with currently accepted memorandum is used to complete critical habitat as the specific areas principles of conservation biology. section 7(a)(2) analyses for Federal within the geographic area occupied by actions affecting C. melanocarpa critical the species at the time of listing on Gua´nica and Susu´ a Commonwealth habitat. The key factor related to the which are found those physical and Forests: Commonwealth of Puerto Rico adverse modification determination is biological features (i) Essential to the We have determined that the lands whether, with implementation of the conservation of the species and (ii) that containing the features essential to the proposed Federal action, the affected may require special management conservation of C. melanocarpa within critical habitat would remain functional considerations or protection. Therefore, the Gua´nica and Susu´ a Commonwealth (or retain the current ability for the PCEs areas within the geographical area forests do not meet the definition of to be functionally established) to serve occupied by the species at the time of critical habitat under section 3(5)(A) of the intended conservation role for the listing that do not contain the features the Act as those features do not require species. Generally, the conservation role essential for the conservation of the special management or protections. As of C. melanocarpa critical habitat units species are not, by definition, critical such, they are not being included in this is to support viable core area habitat. Similarly, areas within the proposal. Both forests are public lands populations. geographic area occupied by the species owned by the Commonwealth of Puerto Section 4(b)(8) of the Act requires us at the time of listing that do not require Rico and managed by the DNER. to briefly evaluate and describe in any special management or protection also The DNER developed a master plan proposed or final regulation that are not, by definition, critical habitat. for the Commonwealth forests of Puerto designates critical habitat those There are multiple ways to provide Rico in 1976. The master plan identified activities involving a Federal action that management for species habitat. soil and land types, climate, wildlife, may destroy or adversely modify such Statutory and regulatory frameworks vegetation, land use, recreation habitat, or that may be affected by such that exist at a local level can provide opportunities, and future research needs designation. Activities that may destroy such protection and management, as can for all Commonweath forests, including or adversely modify critical habitat may lack of pressure for change, such as Gua´nica and Susu´ a forests. The master also jeopardize the continued existence areas too remote for anthropogenic plan also identified management of the species. disturbance. Finally, State, local, or recommendations to address identified Activities that may destroy or private management plans as well as issues for each forest unit. adversely modify critical habitat are management under Federal agencies In Gua´nica, the master plan identified those that alter the PCEs to an extent jurisdictions can provide protection and special management considerations in that the conservation value of critical management to avoid the need for accordance with the uniqueness of the habitat for C. melanocarpa is designation of critical habitat. When we forest, proposed to manage the forest appreciably reduced. Activities that, consider a plan to determine its and associated vegetation types for non- when carried out, funded, or authorized adequacy in protecting habitat, we consumptive use by the public, and by a Federal agency, may affect critical consider whether the plan, as a whole reserved and managed the entire unit as

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a wildlife sanctuary (DNR 1976, pp. 56– enhance the populations of all resident previously accessed and are a result of 58). Because of the forest condition, it endangered and threatened fish, wildlife a graduate student’s thesis work that has was designated as a United Biosphere and plants within the Commonwealth of not been published yet. As stated earlier Reserve in 1981 by the United Nations Puerto Rico. in this rule, past collections exist for Educational, Scientific and Cultural The DNER approved laws and Gua´nica Commonwealth Forest. We Organization (UNESCO). regulations to protect threatened and believe additional occurrences of C. For Susu´ a, the master plan also endangered species within lands under melanocarpa will be found in both identified special management their jurisdiction. In 1999, the forests. For example, when Trejo-Torres considerations, including locating Commonwealth of Puerto Rico approved went to Gua´nica in 2001, specifically to representative areas of all plant Law Number 241, Wildlife Law of the search for and identify the species, he communities and rare and endangered Commonwealth of Puerto Rico (Ley de accomplished confirmation on an species and limiting public use on these Vida Silvestre del Estado Libre individual. When Service biologists areas; not issuing new permits for Asociado de Puerto Rico—Ley Nu´ m. returned to Gu´nica Commonwealth transmission lines; and delineating all 241 del 15 Ago. 1999). The purpose of Forest with this species’ expert in 2006 unique areas and preserving them in this law is to protect, conserve, and to specifically search for this plant, they their natural condition (DNR 1976, pp. enhance native and migratory wildlife found 12 additional individuals in the 230–232). species; declare all wildlife species vicinity. Both forests are currently managed as within its jurisdiction as the property of We believe that extensive surveys in wildlife sanctuaries, protecting wildlife Puerto Rico; regulate permits; regulate the Susu´ a Commonwealth Forest would and plants in perpetuity and allowing hunting activities; and regulate exotic also result in additional sightings of the only non-consumptive use by the public species. In 2004, the DNER approved species. It has been the Service’s in designated areas and trails. Active Commonwealth of Puerto Rico’s experience that, if extensive surveys are management includes developing and Regulation Number 6766, which conducted additional individuals or maintaining fire breaks, conducting regulates the management of threatened populations may be found. For example, prescribed burning adjacent to roads to and endangered species in Puerto Rico the endemic plant Calliandra locoensis reduce fuel load, removing exotic plant (Reglamento para Regir el Manejo de las was discovered in the Susu´ a Forest in species along roads, and promoting Especies Vulnerables y en Peligro de 1991 (Garcı´a and Kolterman 1992, pp. scientific data collection, and Extincio´n en el Estado Libre Asociado 57–60), and only one population was conducting outreach and education de Puerto Rico—Nu´ m. 6766 del 11 de known at the time (Breckon and activities within adjacent communities. Feb 2004). C. melanocarpa has been Kolterman 1994, p. CL–1). Recent Forest management also provides included in the list of protected species. additional survey efforts have resulted opportunities for scientific research and Article 2.06 of this regulation prohibits in three additional localities and about the use of existing trails for passive collecting, cutting, and removing 1,000 individuals (Gonza´lez 1998, pp. recreation and education. The Gua´nica (among other activities) listed plant 41–42; Breckon and Kolterman 2000). Forest also provides for beach use. individuals within the jurisdiction of Protection of such areas as the These current management activities PR. Commonwealth forests conveys stability have not been identified as threats for C. Threats identified for C. melanocarpa of forest development, since most forest melanocarpa. on the Gua´nica and Susu´ a land in Puerto Rico was destroyed for The Gua´nica and Susu´ a Commonwealth forests are human- agriculture. Forest reserves like Commonwealth forests and adjacent induced fires during dry season and Gua´nica, protected since 1919, provide lands are designated as Critical Wildlife cutting of vegetation for trail and the necessary structure to support the Areas (CWA) by the Commonwealth of powerline maintenance. The DNER has conservation of the species. Puerto Rico (DNER 2005, pp. 211 and regulatory mechanisms to protect Thus on the basis that Susu´ a and the 221). The CWA designation constitutes individuals of C. melanocarpa from Gua´nica Commonwealth Forests are a special recognition by the these threats within the forest being adequately managed as wildlife Commonwealth with the purpose of boundaries, and forest managers are sanctuaries by DNER, where they are providing information to aware of the occupied localities within protecting wildlife and plants in Commonwealth and Federal agencies the forests. We believe that management perpetuity and allowing only non- about the conservation needs of these guidelines for both forests, current local consumptive use by the public in areas and assisting permitting agencies laws and regulations and the close designated areas and trails, we have in precluding negative impacts as a coordination and excellent working determined that features essential to the result of permit approvals or partnership with DNER will adequately conservation of C. melanocarpa on endorsements (DNER 2005, pp. 2–3). address identified threats to C. lands within these forests do not require Since 1984, the Service and DNER melanocarpa, features essential to its special management considerations or have a signed cooperative agreement conservation, and its habitat on DNER protection. As such, these lands do not pursuant to section 6(c) of the Act, lands. Therefore, we do not believe that meet the definition of critical habitat for establishing a partnership agreement for special management or protection is C. melanocarpa as defined in section the purpose of implementing an required for C. melanocarpa and its 3(5)(A) of the Act and are not included endangered and threatened fish, wildlife primary constituent elements. in the proposal. and plants species conservation Recent, more extensive surveys program in the Commonwealth of conducted in Gua´nica Commonwealth Conservation Partnerships on Non- Puerto Rico. Both parties agree that Forest have expanded the known range Federal Lands programs of the Commonwealth of of other federally listed species such, as Most federally listed species in the Puerto Rico are designed to assist bariaco (Trichilia triacantha) and palo United States will not recover without resident endangered and threatened de rosa (Ottoschulzia rhodoxylon), and the cooperation of non-Federal species; it is their mutual desire to work other State-protected species all landowners. More than 60 percent of the in harmony for the common purpose of previously known for only a few United States is privately owned planning, developing and conducting individuals within the forest. These (National Wilderness Institute 1995) and programs to protect, manage and surveys were conducted in areas not at least 80 percent of endangered or

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threatened species occur either partially endangered species and the ecosystems the Caribbean Fish and Wildlife Office or solely on private lands (Crouse et al. upon which they depend. The outcome directly (see ADDRESSES). 2002). Stein et al. (1995) found that only of the designation, triggering regulatory Peer Review about 12 percent of listed species were requirements for actions funded, found almost exclusively on Federal authorized, or carried out by Federal In accordance with our joint policy lands (90 to 100 percent of their known agencies under section 7 of the Act, can published in the Federal Register on occurrences restricted to Federal lands) sometimes be counterproductive to its July 1, 1994 (59 FR 34270), and based and that 50 percent of federally listed intended purpose. According to some on our implementation of the Office of species are not known to occur on researchers, the designation of critical Management and Budget’s Final Federal lands at all. habitat on private lands significantly Information Quality Bulletin for Peer Given the distribution of listed reduces the likelihood that landowners Review, dated December 16, 2004, we species with respect to land ownership, will support and carry out conservation will seek the expert opinions of at least conservation of listed species in many actions (Main et al. 1999; Bean 2002; five appropriate and independent peer parts of the United States is dependent Brook et al. 2003). The magnitude of reviewers regarding the science in this upon working partnerships with a wide this negative outcome is greatly proposed rule. The purpose of such variety of entities and the voluntary amplified in situations where active review is to ensure that our critical cooperation of many non-Federal management measures (such as habitat designation is based on landowners (Wilcove and Chen 1998; reintroduction, fire management, scientifically sound data, assumptions, Crouse et al. 2002; James 2002). control of invasive species) are and analyses. We will send copies of Building partnerships and promoting necessary for species conservation (Bean this proposed rule to these peer voluntary cooperation of landowners is 2002). reviewers immediately following essential to understanding the status of Cooperative conservation is the publication in the Federal Register. We species on non-Federal lands and is foundation of the Service’s actions to will invite these peer reviewers to necessary to implement recovery actions protect species, and the Service has comment during the public comment such as reintroducing listed species, many tools by which it can encourage period on the specific assumptions and habitat restoration, and habitat and implement partnerships for conclusions regarding the proposed protection. conservation. These tools include designation of critical habitat. Many non-Federal landowners derive We will consider all comments and conservation grants, funding for satisfaction from contributing to information received during the Partners for Fish and Wildlife Program, endangered species recovery. The comment period on this proposed rule the Coastal Program, and cooperative- Service promotes these private-sector during preparation of a final conservation challenge cost-share efforts through the Four Cs rulemaking. Accordingly, the final grants. Our Private Stewardship Grant philosophy—conservation through decision may differ from this proposal. communication, consultation, and Program and Landowner Incentive cooperation. This philosophy is evident Program provide assistance to private Public Hearings in Service programs such as Habitat landowners in their voluntary efforts to The Act provides for one or more Conservation Plans (HCPs), Safe protect threatened, imperiled, and public hearings on this proposal, if Harbors, Candidate Conservation endangered species, including the requested. Requests for public hearings Agreements, Candidate Conservation development and implementation of must be made in writing within 45 days Agreements with Assurances, and Habitat Conservation Plans. of publication of this proposal in the conservation challenge cost-share. Many Conservation agreements with non- Federal Register. We intend to schedule private landowners, however, are wary Federal landowners (such as HCPs, a public hearing on this proposal, if any of the possible consequences of contractual conservation agreements, are requested, once the draft economic encouraging endangered species to their easements, and stakeholder-negotiated analysis is available so that we can property, and there is mounting State regulations) enhance species receive public comment on the draft evidence that some regulatory actions conservation by extending species economic analysis and proposed rule by the Federal government, while well- protections beyond those available simultaneously. However, we can intentioned and required by law, can through section 7 consultations. In the schedule a public hearing prior to that (under certain circumstances) have past decade, we have encouraged non- time, if specifically requested. We will unintended negative consequences for Federal landowners to enter into announce the date, time, and place of the conservation of species on private conservation agreements, based on a the hearing in the Federal Register and lands (Wilcove et al. 1996; Bean 2002; view that we can achieve greater species local newspapers at least 15 days prior Conner and Mathews 2002; James 2002; conservation on non-Federal land to the first hearing. Koch 2002; Brook et al. 2003). Many through such partnerships than we can landowners fear a decline in their through other methods (61 FR 63854; Clarity of the Rule property value due to real or perceived December 2, 1996). Executive Order 12866 requires each agency to write regulations and notices restrictions on land-use options where Economic Analysis threatened or endangered species are that are easy to understand. We invite found. Consequently, harboring An analysis of the economic impacts your comments on how to make this endangered species is viewed by many of proposing critical habitat for C. proposed rule easier to understand, landowners as a liability, resulting in melanocarpa is being prepared. We will including answers to questions such as anti-conservation incentives because announce the availability of the draft the following: (1) Are the requirements maintaining habitats that harbor economic analysis as soon as it is in the proposed rule clearly stated? (2) endangered species represents a risk to completed, at which time we will seek Does the proposed rule contain future economic opportunities (Main et public review and comment. At that technical jargon that interferes with the al. 1999; Brook et al. 2003). time, copies of the draft economic clarity? (3) Does the format of the The purpose of designating critical analysis will be available for proposed rule (grouping and order of habitat is to contribute to the downloading from the Internet at http:// the sections, use of headings, conservation of threatened and www.southeast.fws.gov or by contacting paragraphing, and so forth) aid or

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reduce its clarity? (4) Is the description when promulgating a designation of economic impact on a substantial of the notice in the SUPPLEMENTARY critical habitat. number of small entities accompanied INFORMATION section of the preamble In developing our designations of by the factual basis for that helpful in understanding the proposed critical habitat, we consider economic determination. The Service has rule? (5) What else could we do to make impacts, impacts to national security, concluded that deferring the RFA this proposed rule easier to understand? and other relevant impacts pursuant to finding until completion of the draft Send a copy of any comments on how section 4(b)(2) of the Act. Based on the economic analysis is necessary to meet we could make this proposed rule easier discretion allowable under this the purposes and requirements of the to understand to: Office of Regulatory provision, we may exclude any RFA. Deferring the RFA finding in this Affairs, Department of the Interior, particular area from the designation of manner will ensure that the Service Room 7229, 1849 C Street, NW., critical habitat providing that the makes a sufficiently informed Washington, DC 20240. You may e-mail benefits of such exclusion outweigh the determination based on adequate your comments to this address: benefits of specifying the area as critical economic information and provides the [email protected]. habitat and that such exclusion would necessary opportunity for public not result in the extinction of the comment. Required Determinations species. As such, we believe that the Executive Order 13211 Regulatory Planning and Review evaluation of the inclusion or exclusion of particular areas, or combination On May 18, 2001, the President issued In accordance with Executive Order thereof, in a designation constitutes our an Executive Order (E.O. 13211) on 12866, this document is a significant regulatory alternative analysis. regulations that significantly affect rule in that it may raise novel legal and energy supply, distribution, and use. policy issues, but it is not anticipated to Regulatory Flexibility Act (5 U.S.C. 601 Executive Order 13211 requires agencies have an annual effect on the economy et seq.) to prepare Statements of Energy Effects of $100 million or more or affect the Under the Regulatory Flexibility Act when undertaking certain actions. This economy in a material way. Due to the (5 U.S.C. 601 et seq., as amended by the proposed rule to designate critical timeline for publication in the Federal Small Business Regulatory Enforcement habitat for C. melanocarpa is a Register, the Office of Management and Fairness Act (SBREFA) of 1996), significant regulatory action under Budget (OMB) has not formally whenever an agency is required to Executive Order 12866 as it may raise reviewed this rule. We are preparing a publish a notice of rulemaking for any novel legal and policy issues. However, draft economic analysis of this proposed proposed or final rule, it must prepare it is not expected to significantly affect action, which will be available for and make available for public comment energy supplies, distribution, or use. public comment, to determine the a regulatory flexibility analysis that Therefore, this action is not a significant economic consequences of designating describes the effects of the rule on small energy action and no Statement of the specific area as critical habitat. This entities (small businesses, small Energy Effects is required. We will economic analysis also will be used to organizations, and small government further evaluate this in our draft determine compliance with Executive jurisdictions). However, no regulatory economic analysis and revise this Order 12866, Regulatory Flexibility Act, flexibility analysis is required if the assessment if appropriate. Small Business Regulatory Enforcement head of the agency certifies the rule will Fairness Act, and Executive Order not have a significant economic impact Unfunded Mandates Reform Act (2 12630. on a substantial number of small U.S.C. 1501 et seq.) Within these areas, the types of entities. The SBREFA amended the In accordance with the Unfunded Federal actions or authorized activities Regulatory Flexibility Act (RFA) to Mandates Reform Act (2 U.S.C. 1501), that we have identified as potential require Federal agencies to provide a the Service makes the following concerns are listed above in the statement of the factual basis for findings: ‘‘Adverse Modification Standard’’ certifying that the rule will not have a (a) This rule will not produce a section. The availability of the draft significant economic impact on a Federal mandate. In general, a Federal economic analysis will be announced in substantial number of small entities. mandate is a provision in legislation, the Federal Register and in local At this time, the Service lacks the statute, or regulation that would impose newspapers so that it is available for available economic information an enforceable duty upon State, local, public review and comments. When it is necessary to provide an adequate factual Tribal governments, or the private sector completed, the draft economic analysis basis for the required RFA finding. and includes both ‘‘Federal can be obtained from the internet Web Therefore, the RFA finding is deferred intergovernmental mandates’’ and site at http://www.southeast.fws.gov or until completion of the draft economic ‘‘Federal private sector mandates.’’ by contacting the Caribbean Fish and analysis prepared in accordance with These terms are defined in 2 U.S.C. Wildlife Office directly (see ADDRESSES). section 4(b)(2) of the Act and Executive 658(5)–(7). ‘‘Federal intergovernmental Further, Executive Order 12866 Order 12866. This draft economic mandate’’ includes a regulation that directs Federal Agencies promulgating analysis will provide the required ‘‘would impose an enforceable duty regulations to evaluate regulatory factual basis for the RFA finding. Upon upon State, local, or tribal governments’’ alternatives (Office of Management and completion of the draft economic with two exceptions. It excludes ‘‘a Budget, Circular A–4, September 17, analysis, the Service will publish a condition of Federal assistance.’’ It also 2003). Pursuant to Circular A–4, once it notice of availability of the draft excludes ‘‘a duty arising from has been determined that the Federal economic analysis of the proposed participation in a voluntary Federal regulatory action is appropriate, the designation and reopen the public program,’’ unless the regulation ‘‘relates agency will need to consider alternative comment period for the proposed to a then-existing Federal program regulatory approaches. Since the designation. The Service will include under which $500,000,000 or more is determination of critical habitat is a with the notice of availability, as provided annually to State, local, and statutory requirement pursuant to the appropriate, an initial regulatory tribal governments under entitlement Act, we must then evaluate alternative flexibility analysis or a certification that authority,’’ if the provision would regulatory approaches, where feasible, the rule will not have a significant ‘‘increase the stringency of conditions of

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assistance’’ or ‘‘place caps upon, or proposed critical habitat designation Ninth Circuit (Douglas County v. otherwise decrease, the Federal with appropriate State resource agencies Babbitt, 48 F.3d 1495 (9th Cir. Ore. Government’s responsibility to provide in Puerto Rico and the U.S. Virgin 1995), cert. denied 116 S. Ct. 698 funding,’’ and the State, local, or Tribal Islands. The designation of critical (1996)). governments ‘‘lack authority’’ to adjust habitat in areas currently occupied by C. Government-to-Government accordingly. At the time of enactment, melanocarpa imposes no additional these entitlement programs were: restrictions to those currently in place Relationship With Tribes Medicaid; AFDC work programs; Child and, therefore, has little incremental In accordance with the President’s Nutrition; Food Stamps; Social Services impact on State and local governments memorandum of April 29, 1994, Block Grants; Vocational Rehabilitation and their activities. The designation ‘‘Government-to-Government Relations State Grants; Foster Care, Adoption may have some benefit to these with Native American Tribal Assistance, and Independent Living; governments in that the areas that Governments’’ (59 FR 22951), Executive Family Support Welfare Services; and contain the features essential to the Order 13175, and the Department of Child Support Enforcement. ‘‘Federal conservation of the species are more Interior’s manual at 512 DM 2, we private sector mandate’’ includes a clearly defined, and the primary readily acknowledge our responsibility regulation that ‘‘would impose an constituent elements of the habitat to communicate meaningfully with enforceable duty upon the private necessary to the conservation of the recognized Federal Tribes on a sector, except (i) A condition of Federal species are specifically identified. While government-to-government basis. We assistance or (ii) a duty arising from making this definition and have determined that there are no Tribal participation in a voluntary Federal identification does not alter where and lands occupied at the time of listing program.’’ what federally sponsored activities may containing the features essential for the The designation of critical habitat occur, it may assist these local conservation of C. melanocarpa and no does not impose a legally binding duty governments in long-range planning Tribal lands that are unoccupied areas on non-Federal government entities or (rather than waiting for case-by-case that are essential for the conservation of private parties. Under the Act, the only section 7 consultations to occur). C. melanocarpa. Therefore, critical regulatory effect is that Federal agencies Civil Justice Reform habitat for C. melanocarpa has not been must ensure that their actions do not proposed for designation on Tribal destroy or adversely modify critical In accordance with Executive Order lands. habitat under section 7. While non- 12988, the Office of the Solicitor has Federal entities that receive Federal determined that the rule does not References Cited funding, assistance, or permits, or that unduly burden the judicial system and A complete list of all references cited otherwise require approval or meets the requirements of sections 3(a) in this rulemaking is available upon authorization from a Federal agency for and 3(b)(2) of the Order. We propose request from the Field Supervisor, an action, may be indirectly impacted designating critical habitat in Caribbean Fish and Wildlife Office (see by the designation of critical habitat, the accordance with the provisions of the ADDRESSES). legally binding duty to avoid Act. This proposed rule uses standard destruction or adverse modification of property descriptions and identifies the Author(s) critical habitat rests squarely on the primary constituent elements within the The primary authors of this package Federal agency. Furthermore, to the designated area to assist the public in are the staff of Caribbean Fish and extent that non-Federal entities are understanding the habitat needs of C. Wildlife Office (see FOR FURTHER indirectly impacted because they melanocarpa. INFORMATION CONTACT section). receive Federal assistance or participate in a voluntary Federal aid program, the Paperwork Reduction Act of 1995 (44 List of Subjects in 50 CFR Part 17 U.S.C. 3501 et seq.) Unfunded Mandates Reform Act would Endangered and threatened species, not apply, nor would critical habitat This rule does not contain any new Exports, Imports, Reporting and shift the costs of the large entitlement collections of information that require recordkeeping requirements, programs listed above on to State approval by OMB under the Paperwork Transportation. governments. Reduction Act. This rule will not (b) We do not believe that this rule impose recordkeeping or reporting Proposed Regulation Promulgation will significantly or uniquely affect requirements on State or local Accordingly, we propose to amend small governments because the publicly governments, individuals, businesses, or part 17, subchapter B of chapter I, title owned units are owned by the organizations. An agency may not 50 of the Code of Federal Regulations, Commonwealth of Puerto Rico, which conduct or sponsor, and a person is not as set forth below: does not fit the definition of ‘‘small required to respond to, a collection of governmental jurisdiction.’’ As such, a information unless it displays a PART 17—[AMENDED] Small Government Agency Plan is not currently valid OMB control number. 1. The authority citation for part 17 required. We will, however, further National Environmental Policy Act continues to read as follows: evaluate this issue as we conduct our economic analysis and revise this It is our position that, outside the Authority: 16 U.S.C. 1361–1407; 16 U.S.C. assessment if appropriate. Tenth Circuit, we do not need to 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– prepare environmental analyses as 625, 100 Stat. 3500; unless otherwise noted. Federalism defined by the NEPA in connection with 2. In § 17.12(h), revise the entry for In accordance with Executive Order designating critical habitat under the ‘‘Catesbaea melanocarpa’’ under 13132, the rule does not have significant Endangered Species Act of 1973, as ‘‘FLOWERING PLANTS’’ to read as Federalism effects. A Federalism amended. We published a notice follows: assessment is not required. In keeping outlining our reasons for this with DOI and Department of Commerce determination in the Federal Register § 17.12 Endangered and threatened plants. policy, we requested information from, on October 25, 1983 (48 FR 49244). This * * * * * and coordinated development of, this assertion was upheld in the courts of the (h) * * *

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Species Historic range Family Status When listed Critical Special Scientific name Common name habitat rules

******* FLOWERING PLANTS

******* Catesbaea melanocarpa None ...... U.S.A. (PR, VI), Antigua, Rubiaceae ...... E ...... 657 17.96(a) NA Barbuda, Guadalupe.

*******

3. In § 17.96, amend paragraph (a) by contain at least two of the PCEs, as 1958915.10; 319391.33, 1958905.57; adding an entry for Catesbaea defined in paragraph (2) of this section, 319412.76, 1958900.81; 319446.09, melanocarpa in alphabetical order on U.S. Geological Survey (USGS) 1958893.67; 319462.76, 1958893.67; under Family Rubiaceae to read as topographic maps (UTM 20, NAD 27). 319484.19, 1958884.14; 319500.86, follows: (5) Halfpenny Bay, St. Croix, U.S. 1958874.62; 319534.20, 1958850.80; Virgin Islands. 319548.49, 1958831.75; 319558.01, § 17.96 Critical habitat—plants. (i) General description: The 1958812.70; 319558.01, 1958793.65; (a) * * * Halfpenny Bay unit consists of 319534.20, 1958774.60; 319512.77, Family Rubiaceae: Catesbaea approximately 50-ac (20.23-ha) on 1958767.46; 319477.05, 1958753.17; melanocarpa (no common name) privately owned property located about 319438.95, 1958750.79; 319407.99, (1) Critical habitat is depicted on the 1958750.79; 319391.33, 1958753.17; map below for Halfpenny Bay, St. Croix, 2.48 mi (4 km) south of Christiansted, St. Croix, U.S. Virgin Islands. The area 319381.80, 1958746.03; 319355.61, U.S. Virgin Islands. 1958748.41; 319332.84, 1958757.39; (2) The primary constituent elements is delimited by Road 62 to the north, 319322.93, 1958759.64; 319311.66, (PCEs) of critical habitat for C. South Shore Road to the west, the local 1958776.76; 319308.51, 1958787.58; melanocarpa are the habitat road to Halfpenny Bay to the east, and 319310.36, 1958805.56; 319306.26, components that provide: by the 33-ft (10-m) topography contour 1958826.78; 319291.31, 1958843.66; (i) Single-layered canopy forest with line to the south. This unit encompasses 319271.56, 1958860.13; 319253.53, little ground cover and open forest floor the habitat features essential to the 1958870.94; 319231.78, 1958879.38; that supports patches of dry vegetation conservation of C. melanocarpa within 319220.24, 1958896.22; 319208.81, with grasses, and Estate Halfpenny, Christiansted, St. (ii) Well to excessively drained, Croix, and does not contain any 1958913.94; 319199.67, 1958924.80; limestone and serpentine-derived soils manmade structures. 319172.23, 1958965.37; 319153.20, (including soils of the San Germa´n, (ii) Coordinates: From Christiansted 1958993.68; 319141.29, 1959019.87; Nipe, and Rosario series and Glynn and USGS 1:24,000 quadrangle map, St. 319124.63, 1959053.21; 319115.10, Hogensborg series). Croix land bounded by the following 1959077.02; 319105.58, 1959103.22; (3) Critical habitat does not include UTM 20 NAD 27 coordinates (E,N): 319250.83, 1959146.08; 319203.21, manmade structures (such as buildings, 319053.46, 1959358.06; 319363.69, 1959269.90; 319059.77, 1959230.54; aqueducts, airports, roads, and other 1959455.15; 319476.85, 1959132.82; 319057.97, 1959244.96; 319058.87, paved areas) and the land on which they 319505.42, 1959046.53; 319551.84, 1959263.88; 319066.98, 1959282.81; are located existing on the effective date 1958916.00; 319534.20, 1958929.38; 319064.72, 1959303.09; 319059.77, of this rule and not containing one or 319519.91, 1958929.38; 319498.48, 1959323.82; 319055.57, 1959353.25; more of the primary constituent 1958938.91; 319484.19, 1958946.05; 319053.46, 1959358.06. elements. 319458.00, 1958943.67; 319434.19, (iii) Note: Map of Halfpenny Bay (4) Critical habitat map. Data layers 1958934.15; 319405.61, 1958927.00; follows: were created by overlaying habitats that 319372.28, 1958924.62; 319372.28, BILLING CODE 4310–55–P

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

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