[Federal Register: August 28, 2007 (Volume 72, Number 166)]
[Rules and Regulations]               
[Page 49212-49228]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU76

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (the Service), are 
designating critical habitat for the endangered plant Catesbaea 
melanocarpa (no common name) under the Endangered Species Act of 1973, 
as amended (Act). Approximately 10.5 acres (ac) (4.3 hectares (ha)) 
fall within the boundaries of the critical habitat designation for C. 
melanocarpa in one unit located in Halfpenny Bay in Christiansted, St. 
Croix, U.S. Virgin Islands (USVI).

DATES: This rule becomes effective on September 27, 2007.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Caribbean Fish and 
Wildlife Office, Road 301 Km. 5.1, P.O. Box 491, Boquer[oacute]n, PR 
00622; telephone 787-851-7297; facsimile 787-851-7440.


[[Page 49213]]


    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this rule. For more information 
on Catesbaea melanocarpa, please refer to the final listing rule 
published in the Federal Register on March 17, 1999 (64 FR 13116), and 
the proposed rule to designate critical habitat published in the 
Federal Register on August 22, 2006 (71 FR 48883).

Previous Federal Actions

    On September 17, 2004, the Center for Biological Diversity filed a 
lawsuit against the Department of the Interior and the Service [Center 
for Biological Diversity v. Norton (CV-00293-JDB) (D.D.C.)], 
challenging the failure to designate critical habitat for Catesbaea 
melanocarpa. In a settlement agreement dated June 3, 2005, the Service 
agreed to reevaluate the prudency of critical habitat for this species 
and, if prudent, submit a proposed designation of critical habitat to 
the Federal Register by August 15, 2006, and a final designation by 
August 15, 2007. For more information on previous Federal actions 
concerning C. melanocarpa, refer to the proposed critical habitat 
designation published in the Federal Register on August 22, 2006 (71 FR 
48883), and in our notice of availability of the draft economic 
analysis published on March 14, 2007 (72 FR 11819). This final rule 
complies with the settlement agreement.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Catesbaea melanocarpa in the 
proposed rule published on August 22, 2006 (71 FR 48883), and again in 
a subsequent notice of the availability of a draft economic analysis 
published in the Federal Register on March 14, 2007 (72 FR 11819). We 
also contacted appropriate Federal, Commonwealth, and Territorial 
agencies; scientific organizations; local researchers; and other 
interested parties and invited them to comment on the proposed rule.
    The first comment period on the proposed designation opened August 
22, 2006 and closed on October 23, 2006. During that time, we received 
comments from three individuals: One from a peer reviewer working for 
the USVI government, and two from private individuals. We received one 
letter during the second comment period, opened from March 14 to April 
13, 2007, which covered both the proposed designation and the draft 
economic analysis. This comment letter was submitted by one of the 
private individuals who provided comments during the first comment 
period. In total, we received four comment letters from three 
individuals. One commenter supported the designation of critical 
habitat and one opposed the designation. The third commenter did not 
indicate support or opposition for the designation. We reviewed the 
comments for substantive issues and new information regarding critical 
habitat. We grouped the comments by issue and we addressed them in the 
following summary. We incorporated information into the final rule as 
appropriate. We did not receive requests for public hearings.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from seven knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received a response from one peer 
reviewer representing the USVI Department of Planning and Natural 
Resources, Division of Fish and Wildlife (DPNR-FW). The peer reviewer 
did not mention if the DPNR-FW generally concurred or not with our 
methods and conclusions, but provided additional information and 
suggestions to improve the final critical habitat rule.

Peer Reviewer Comments

    Comment 1: The peer reviewer expressed concern that the description 
of the habitat in the proposed rule had lumped the habitat on USVI and 
Puerto Rico (PR) together, making it seem that there is much more 
habitat available for the plants. The peer reviewer suggested that the 
habitat description be differentiated between the islands.
    Our Response: The proposed rule published in the Federal Register 
on August 22, 2006 (71 FR 48883) described the habitat of Catesbaea 
melanocarpa in PR and the USVI separately. The description of the 
habitat in the Halfpenny Bay area was described based on the site-
specific soil type and the vegetation as observed by the Service in 
2006. The habitat characteristics of the site coincide with the 
previous habitat description referenced in the scientific literature. 
However, the introductory paragraph of the Habitat Description section 
provided a general discussion of the main characteristics of the 
subtropical dry forest life zone as described by Ewel and Whitmore 
(1973, pp. 10-20). The subtropical dry forest life zone covers the 
Halfpenny Bay area, as well as other areas where the species has been 
reported in the past and is currently present in Puerto Rico (Guanica 
Commonwealth Forest and Penones de Melones). The general description of 
the life zone does not substitute for the site-specific habitat 
description we provided in the proposed rule. Furthermore, the primary 
constituent elements (PCEs) for C. melanocarpa are based on the habitat 
components that are essential for the conservation of the species and 
not based on the life zones.
    Comment 2: The peer reviewer mentioned information received from 
Mr. Rudy O'Reilly, District Conservationist for the U.S. Department of 
Agriculture National Resources Conservation Service, about two 
individual plants of Catesbaea melanocarpa previously observed on a 
property located to the west of the proposed designation. The commenter 
specified that he did not investigate the sighting report to establish 
if the species is still present in the area. However, the commenter 
suggested including this new locality in the designation of critical 
habitat for C. melanocarpa.
    Our Response: We contacted Mr. O'Reilly, District Conservationist 
for the U.S. Department of Agriculture Natural Resources Conservation 
Service (NRCS) and requested additional information about the sighting 
mentioned by the peer reviewer. Mr. O'Reilly is the botanist who 
rediscovered the species in St. Croix in 1988. Mr. O'Reilly provided 
written information on January 23, 2007, and confirmed the information 
provided by the peer reviewer. Mr. O'Reilly explained that one plant of 
C. melanocarpa was observed during a casual drive-through on the west 
side of the South Shore Road (eastern boundary of the proposed critical 
habitat unit) in April, 2006. The area where the individual was 
observed is located outside of the proposed designation. Mr. O'Reilly 
mentioned that this location was the site where he first discovered the 
two individuals of C. melanocarpa reported in 1988, but that had been 
destroyed by a hurricane before the species was listed.
    At the time of listing, we described the population near 
Christiansted, St. Croix consisting of about 24 individual plants. This 
information was obtained from Breckon and Kolterman (1993, p. 2). These 
authors made reference to the individuals they found in July, 1992; and 
revisited in December, 1992, and June, 1993. They described the 
locality east of the existing road (the other side of the road in 
reference to the site where

[[Page 49214]]

O'Reilly discovered the original individuals in 1988). The authors 
estimated the population as about 24 individuals, described the size of 
the plants and documented the presence of flowers and fruits. When the 
Service was gathering information to draft the recovery plan for the 
species in 2002, we surveyed the population reported by Breckon and 
Kolterman (1993, pp.1-2), collected GPS points and estimated the 
population to be 100 individuals (Lombard 2002). The site where this 
population is found is located east of the existing road and 
corresponds to the site identified in the proposed rule (Halfpenny Bay 
area). Although Breckon and Kolterman (1993, pp. 1-2) made referenced 
to the individuals Mr. O'Reilly discovered in 1988, they mentioned that 
individuals were affected by Hurricane Hugo in 1989. These authors did 
not mentioned that they visited the individuals reported in the west 
side of the road and did not provide information supporting that the 
individuals were alive at the time they conducted their studies.
    Based on the above information and the information currently 
available to us, the individual referenced by the peer reviewer was not 
present at the time of listing. At the time of listing, the individuals 
first reported by Mr. O'Reilly in 1988 were considered extirpated by 
previous hurricanes. Mr. O'Reilly in his letter of January 23, 2007 
confirmed the information that the two individuals he discovered in 
1988 were destroyed by Hurricane Marilyn, and as a consequence the site 
was not considered occupied at the time of listing.
    Since the area was not occupied at the time of listing we would 
have to find it essential to the conservation of the species in order 
to designate it as critical habitat. Because the only evidence of the 
existence of the species at this location is a casual drive-by, and no 
surveys have recently been conducted in this area, we do not have 
enough information at this time to determine that the area is essential 
to the conservation of the species.
    Comment 3: The peer reviewer suggested mentioning in the rule that 
Catesbaea melanocarpa is protected by the Territorial law.
    Our Response: In the proposed rule for the designation of critical 
habitat for Catesbaea melanocarpa published in the Federal Register on 
August 22, 2006, we discussed topics directly relevant to the 
designation of critical habitat. However, we incorporated by reference 
the information of the listing final rule we published in the Federal 
Register on March 17, 1999 (64 FR 13116). In the listing rule, under 
the ``Summary of Factors Affecting the Species'' section, we stated 
that the territory of the USVI had amended its regulations to protect 
endangered and threatened wildlife and plants and considered Catesbaea 
melanocarpa to be endangered. In the listing rule, we referred to 
prohibitions by this local regulation under the ``Available 
Conservation Measures'' section.

Public Comments Related to the Designation

    Comment 1: The commenter believes that the area to be designated as 
critical habitat was based on the ownership of private property rather 
than the location of the species. The commenter provided a color aerial 
photo of the site.
    Our Response: The Halfpenny Bay is currently occupied by 
approximately 100 individuals of C. melanocarpa. With the assistance of 
the aerial photo provided by the commenter, we re-examined the 
boundaries of the proposed area and removed from the designation highly 
degraded areas dominated by pastures located south of Road 62. We also 
redefined the boundaries utilizing GPS-located sightings of individuals 
collected by Service personnel within the property (Lombard 2002). The 
areas within the redefined boundaries meet the criteria we used to 
designate critical habitat. We also confirmed that the area occupied by 
the species contains the PCEs essential for the conservation of the 
species. Therefore, we reduced the size of the designated critical 
habitat to 10.5 ac (4.3 ha).
    Comment 2: The commenter mentioned information received from Mr. 
Rudy O'Reilly about one Catesbaea melanocarpa plant previously observed 
in a property located to the west of the proposed designation. The 
commenter recommended we conduct additional research and prepare the 
planned 5-year review of the status of the species before finalizing 
the proposed designation of critical habitat.
    Our Response: The presence of one individual in a site located west 
of the proposed designation was also documented by the peer reviewer. 
We responded to comments under Peer Reviewer Comment 2. We initiated 
the 5-year review process for Catesbaea melanocarpa on September 27, 
2006 (71 FR 56545), and requested information and comments from the 
public. The purpose of the 5-year review is to ensure that the 
classification of species as threatened or endangered of the Lists of 
Endangered and Threatened Wildlife and Plants (50 CFR 17.11 and 17.12) 
is accurate. A 5-year review is an assessment of the best scientific 
and commercial data available at the time of the review. It does not 
include additional research on the species.
    Comment 3: The commenter believes that the designation will destroy 
the property's economic value and result in a ``taking'' of private 
    Our Response: The designation of critical habitat does not mean 
that private lands would be taken by the Federal Government or 
continued private uses would not be allowed. The designation of 
critical habitat does not affect private lands if there is no Federal 
nexus in other words, if the landowner does not need a Federal permit 
or other Federal approval, or Federal funding, for his activities, then 
the designation will impose no Federal restriction on his property. If 
a species is listed or critical habitat is designated, section 7(a)(2) 
of the Act requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or to destroy or adversely modify 
its critical habitat. All regulatory effect of the designation of 
critical habitat comes from this requirement. Therefore, if a Federal 
permit or approval is not required, or if Federal funding is not 
involved, there will be no regulatory burden for actions on private 
    If there is a Federal action that may affect a listed species or 
its critical habitat, the responsible Federal agency must enter into 
consultation with us. When we issue a biological opinion we can include 
measures to reduce take of the species, or measures to offset any 
actions that would jeopardize the existence of the species or adversely 
modify critical habitat. Such measures must be consistent with the 
scope of the Federal agency's legal authority and jurisdiction, and 
must also be economically and technologically feasible.
    The parcel that includes the critical habitat designation is 
currently zoned as District 2: Low Intensity, which permits low-density 
residential construction and small-scale agriculture. This zoning 
category allows a maximum of four residential units per acre for single 
and multi-family construction and a maximum of six units per acre for 
larger-scale condominium or hotel development. This zoning category 
does not prohibit development of the site.
    We anticipate that any potential development could go forward on 
this site even if there was a Federal nexus. If we consulted on the 
site were would likely propose recommended conservation measures for 
the plants. We have identified likely recommended

[[Page 49215]]

measures, which would include establishing a buffer zone of 20 meters 
(m) (66 feet (ft)) around the existing population as a setback from the 
development. The buffer zone is included in the designation, and the 
total area to be designated is approximately 10.5 ac (4.3 ha). Given 
the size of the parcel and location of the plants, it is unlikely that 
the setback would significantly affect development plans.

Public Comments Related to the Economic Analysis

    Comment 1: The commenter requested an extension of the public 
comment period opened on March 14, 2007, for a minimum of 60 days to 
provide additional time for the owner of the land to effectively 
respond to the proposed rule.
    Our Response: We provided two comment periods, totaling 90 days, 
for the designation of critical habitat for Catesbaea melanocarpa 
between August 2006 and April 2007. Additionally, we contacted the 
commenter in February 2006 to request permission to visit the site, and 
we provided information about the proposed designation. Service 
biologists met with the commenter on March 1, 2006, and provided 
information about critical habitat.
    Comment 2: The commenter requested the postponement or termination 
of the rulemaking process until legal review is made. He also suggests 
we should investigate opportunities to conserve the species on 
government-owned lands.
    Our Response: We have a statutory obligation to designate critical 
habitat, and we are operating under a settlement agreement that 
requires us to finalize this designation by August 15, 2007. We are 
finalizing this rule in compliance with applicable legal standards.
    Regarding opportunities to conserve the species on government-owned 
lands, the species is not currently present on government-owned lands 
in the USVI. The recovery plan identifies the establishment of a 
propagation program as the top priority for the recovery of the 
species. Once the appropriate propagation techniques are established 
and necessary funding allocated, we would direct our efforts toward the 
establishment of self-sustainable populations on protected lands. The 
recovery plan also identifies the need to establish conservation 
agreements with private landowners to provide protection to the 
existing individuals and their habitat in the USVI.
    Comment 3: The commenter believes that the economic impact of 
designation would not range from $132,300 to $441,000 over 20 years, as 
discussed in the draft economic analysis, but rather would range from 
$630,000 to $2,100,000 over 20 years.
    Our Response: The commenter confused the economic impact of the 
critical habitat designation with the assessment of the market value 
for the site. The draft economic analysis summarized the procedure 
taken to assess the market value of the property. Exhibit 2 of the 
draft economic analysis included the market value per acre of the 
proposed designated area, which ranges from $630,000 to $2,100,000. The 
economic impact of the designation was based on conservation 
recommendations we would provide as technical assistance to a developer 
to conserve the species within the property, if a development project 
is proposed. The conservation measures would include establishing a 
buffer zone of 20 meters (m) (66 feet (ft)) around the existing 
population as a setback from the development. The buffer zone is 
included in the designation, and the total area to be designated is 
approximately 10.5 ac (4.3 ha). The calculation of the economic impact 
of the designation to the landowner was based on the implementation of 
this conservation measure and ranged from $132,000 to $441,000 over 20 
    Comment 4: The commenter stated that the draft economic analysis 
recommends a modification to the designation, specifically limiting the 
proposed designation to 21 percent of the property.
    Our Response: With the assistance of the aerial photo provided by 
the commenter during the comment period, we reexamined the boundaries 
of the proposed area and removed highly degraded areas dominated by 
pastures located south of Road 62. We also redefined the boundaries 
utilizing GPS recorded sightings of individuals collected by Service 
personnel within the property (Lombard 2002). We verified that these 
redefined areas meet both criteria we are utilizing to designate 
critical habitat, they are occupied by the species and they support the 
PCEs essential for the conservation of the species. We reduced the size 
of the designated critical habitat to 10.5 ac (4.3 ha).
    Comment 5: The commenter stated that the draft economic analysis 
incorrectly states that the site is not being used for agriculture and 
that the site is currently subject to an agricultural lease. The 
commenter mentioned that the site is subject to periodic grazing, which 
reduces the fire hazard and is beneficial for the protection of the 
species. The commenter interpreted the proposed designation as 
prohibiting agricultural activities in the area and stated that this 
would adversely affect the prospects of this population's survival.
    Our Response: The draft economic analysis stated that the property 
proposed for critical habitat was no longer used for grazing 
activities. The revised analysis states: ``The property is subject to 
an agricultural lease that has not been terminated, and is periodically 
grazed by livestock. The owner notes that this grazing activity reduces 
the threat of brush fires and may benefit the species.''

Comments From the Territory of the USVI

    Section 4(i) of the Act states that ``the Secretary shall submit to 
the State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from Territorial agencies (USVI Department of 
Planning and Natural Resources, Division of Fish and Wildlife) 
regarding the proposal to designate critical habitat for Catesbaea 
melanocarpa are addressed in the Peer Reviewer Comments section.

Summary of Changes From Proposed Rule

    On the basis of comments received on the proposed rule and the 
draft economic analysis, we have developed our final designation of 
critical habitat for Catesbaea melanocarpa. Specifically, we adjusted 
the boundaries of the proposed critical habitat designation to remove 
the areas that were dominated by pastures, and as such did not contain 
the first primary constituent element and the area not currently 
occupied by the species. This adjustment resulted in the removal of 
39.5 ac (16 ha) from the original boundaries and a final designation of 
10.5 ac (4.3 ha). The boundaries of the designation were refined by 
utilizing an aerial photograph provided during the public comment 
period for the proposed rule and a layer created in GIS with the GPS 
readings of the sightings of the approximately 100 plants in the area. 
We used a 100-meter grid to establish Universal Transverse Mercator 
(UTM) North American Datum 27 (NAD 27) coordinates that, when 
connected, provided the boundaries of the critical habitat for 
Catesbaea melanocarpa.
    In the proposed rule published on August 22, 2006 (71 FR 48883), we 
stated that the Gu[aacute]nica and the Sus[uacute]a Commonwealth 
Forests in PR were not

[[Page 49216]]

included in the proposed designation because they are adequately 
protected under the management of the DNER and the master plan for the 
forests, and therefore do not require special management or protection. 
Under section 3(5)(A) of the Act, an area that was occupied at the time 
of listing on which are found those physical or biological features 
essential to the conservation of the species and which may require 
special management considerations or protection meets the definition of 
critical habitat. We have determined that these areas do meet the 
definition of critical habitat as there are additional management 
actions beyond those already in effect, that can be taken to conserve 
the plants in these areas. However, we believe the forests have 
management plans that appropriately address the conservation needs of 
the species and therefore minimize any benefits of designation (see 
``Exclusions Under Section 4(b)(2)'' below). Thus, we are invoking the 
Secretary's discretion to exclude the two forests under section 4(b)2 
of the Act, after taking into consideration the efforts by the 
Commonwealth of Puerto Rico to protect habitat under its jurisdiction.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation, as defined under section 3 of the Act, means 
``to use and the use of all methods and procedures which are necessary 
to bring any endangered species or threatened species to the point at 
which the measures provided under the Act are no longer necessary.'' 
Such methods and procedures include, but are not limited to, all 
activities associated with scientific resources management, such as 
research, census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time of listing must 
first have features that are essential to the conservation of the 
species. Critical habitat designations identify, to the extent known 
using the best scientific data available, habitat areas that provide 
essential life cycle needs of the species (areas where PCEs are found, 
as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. As discussed below, 
such areas may also be excluded from critical habitat under section 
4(b)(2) of the Act. Areas outside of the geographical area occupied by 
the species at the time of listing may only be included in critical 
habitat if they are essential to the conservation of the species. 
Accordingly, when the best available scientific data do not demonstrate 
that the conservation needs of the species require additional areas, we 
will not designate critical habitat in areas outside the geographical 
area occupied by the species at the time of listing. However, an area 
that is currently occupied by the species, but which was not known at 
the time of listing to be occupied, will likely, but not always, be 
essential to the conservation of the species and, therefore, considered 
for inclusion in the critical habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific data available. They require Service biologists, to the 
extent consistent with the Act and with the use of the best scientific 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information is generally the listing package for the species. 
Additional information sources include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion or personal knowledge. All information is used in 
accordance with the provisions of Section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations of Catesbaea melanocarpa, but are 
outside the critical habitat designation, will continue to be subject 
to conservation actions implemented under section 7(a)(1) of the Act 
and to the regulatory protections afforded by the section 7(a)(2) 
jeopardy standard, as determined on the basis of the best available 
information at the time of the action. Section 7(a)(1) directs all 
other Federal agencies to utilize their authorities in furtherance of 
the purposes of the Act by carrying out programs for the conservation 
of listed species. Federally funded or permitted projects affecting 
listed species outside their designated critical habitat areas may 
still result in jeopardy findings in some cases. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if

[[Page 49217]]

new information available to these planning efforts calls for a 
different outcome.

Primary Constituent Elements (PCEs)

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

Primary Constituent Elements for Catesbaea melanocarpa

    The area designated as critical habitat for Catesbaea melanocarpa 
is occupied, is within the species' current and historic geographic 
range, and contains sufficient primary constituent elements (PCEs) to 
support at least one of the plant's life-history functions. Based on 
our current knowledge of the species and the requirements of the 
habitat to sustain the essential life-history functions of the species, 
as discussed above, we have determined that the PCEs for C. melanocarpa 
    (1) Single-layered canopy forest with little ground cover and open 
forest floor that supports patches of dry vegetation with grasses, and
    (2) Well to excessively drained, limestone and serpentine-derived 
soils (including soils of the San Germ[aacute]n, Nipe, and Rosario 
series and Glynn and Hogensborg series).
    Open forest floor, canopy, and little ground cover are important 
requirements for an understory species like Catesbaea melanocarpa. The 
canopy provides shade, and the open forest floor reduces competition by

[[Page 49218]]

herbaceous species. Limestone and serpentine-derived soils that are 
well to excessively drained provide essential nutrients to this plant 
and sustain the dry conditions needed by the species. This designation 
is designed for the conservation of areas supporting PCEs necessary to 
support the life-history functions that were the basis for the 
proposal. The area designated as critical habitat in this rule has been 
determined to contain sufficient PCEs to support one or more of the 
life-history functions of C. melanocarpa.

Criteria Used To Identify Critical Habitat

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

[[Page 49219]]

structures that lack PCEs for Catesbaea melanocarpa. The scale of the 
maps prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the exclusion of such developed 
areas. Any such structures and the land under them inadvertently left 
inside critical habitat boundaries shown on the maps of this final rule 
have been excluded by text in the final rule and are not designated as 
critical habitat. Therefore, Federal actions limited to these areas 
would not trigger section 7 consultation, unless they affect the 
species or primary constituent elements in adjacent critical habitat.
    The area of approximately 10.5 ac (4.3 ha) identified within the 
Halfpenny Bay area meets all criteria used to identify critical 
habitat: The site was occupied at the time of listing and contains 
sufficient PCEs to support the life-history functions essential for the 
conservation of the species that are in need of special management and 
protection. A brief discussion of the Halfpenny Bay area is provided in 
the unit description below. Additional detailed documentation 
concerning the essential nature of this area is contained in our 
documentation record for this rulemaking.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain the PCEs that 
may require special management considerations or protection. As 
discussed in this section and in the unit description below, we find 
that all of the PCEs in Halfpenny Bay may require special management 
considerations or protection due to threats to the species or its 
habitat from periodic but intense grazing, human-induced fires, and 
potential development for a tourist project (USFWS 2005, p. 8). Such 
management considerations and protections include fencing off forest 
patches to exclude cattle, developing fire-breaks adjacent to existing 
roads and farm boundaries during dry season, and establishing 
conservation agreements with landowners to protect habitat within the 

Critical Habitat Designation

    We are designating one unit in the Halfpenny Bay area in 
Christiansted, St. Croix, USVI as critical habitat for Catesbaea 
melanocarpa. This critical habitat area described below (see Table 1) 
constitutes our best assessment at this time of areas determined to be 
occupied at the time of listing, that contain the PCEs that are 
essential for the conservation of the species, and that may require 
special management considerations or protection. Appropriate management 
and protection will support reproduction, recruitment, adaptation to 
catastrophic events, and genetic diversity (Primack 2000, pp. 124-133; 
Falk et al. 1996, pp. 113-119) as identified using the best available 

Table 1.--Lands Determined To Meet the Definition of Critical Habitat for Catesbaea melanocarpa, Land Ownership,
                                       Approximate Area (acres, hectares).
                                                                                 Areas meeting the definition of
       Critical habitat unit, location                  Land ownership               critical habitat acres
Halfpenny Bay, St. Croix, USVI...............  Private........................                        10.5 (4.3)
    Total....................................  ...............................                        10.5 (4.3)

    Presented below is a brief description and rationale for the 
designated critical habitat for Catesbaea melanocarpa.

Halfpenny Bay, St. Croix

    The Halfpenny Bay critical habitat area consists of an area of 
approximately 10.5 ac (4.3 ha) on a privately owned agricultural tract 
located in a dry coastal plain about 2.48 miles (4 km) south of 
Christiansted, St. Croix, USVI. This unit encompasses the habitat 
features essential to the conservation of Catesbaea melanocarpa and 
does not contain manmade structures, such as existing private homes or 
barns. The species is located within dry thickets of scrub vegetation 
in this unit, which is dominated by grasses with patches of trees and 
shrubs. The unit contains both PCEs and is important to conserving the 
genetic diversity of this plant. Since this is the locality with the 
highest number of individuals (100 plants), we believe that it should 
be considered the core population to maintain genetic representation of 
this plant in the U.S. Caribbean.
    At the time of the 1999 listing, the population was estimated at 24 
individuals, but in 2002 the population was estimated at 100 
individuals (Lombard 2002). The presence of the species at this site 
was confirmed by the Service in March 2006. This USVI population has 
the highest number of plants and has been documented in its 
reproductive condition (with fruit and flowers). The site and the PCEs 
contained thereon are currently threatened by periodic but intense 
grazing, human-induced fires, potential development for a tourist 
project (USFWS 2005, p. 8), and may require special management 
considerations and protection as discussed in the ``Special Management 
Considerations or Protections'' section above.

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent court decisions have invalidated this 
definition (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife 
Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish 
and Wildlife Service et al., 245 F. 3d 434, 442 (5th Cir. 2001)). 
Pursuant to current national policy and the statutory provisions of the 
Act, destruction or adverse modification is determined on the basis of 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would remain functional (or retain the 
current ability for the primary constituent elements to be functionally 
established) to serve the intended conservation role for the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations

[[Page 49220]]

implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. This is a procedural requirement only. 
However, once a proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report, while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) a concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that may affect, but are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable. 
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
jeopardy to the listed species or destruction or adverse modification 
of critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where a new 
species is listed or critical habitat is subsequently designated that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action or such discretionary 
involvement or control is authorized by law. Consequently, some Federal 
agencies may request reinitiation of consultation with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat.
    Federal activities that may affect Catesbaea melanocarpa or its 
designated critical habitat will require section 7 consultation under 
the Act. Activities on State, Tribal, local or private lands requiring 
a Federal permit (such as a permit from the Corps under section 404 of 
the Clean Water Act or a permit under section 10 of the Act from the 
Service) or involving some other Federal action (such as funding from 
the Federal Highway Administration, Federal Aviation Administration, or 
the Federal Emergency Management Agency) will also be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat, and actions on State, Tribal, local or 
private lands that are not federally funded, authorized, or permitted, 
do not require section 7 consultations.

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

Jeopardy Standard
    When performing jeopardy analysis for Catesbaea melanocarpa, the 
Service applies an analytical framework that relies heavily on the 
importance of core area populations to the survival and recovery of 
this plant. The section 7(a)(2) analysis is focused not only on these 
populations but also on the habitat conditions necessary to support 
    The jeopardy analysis usually expresses the survival and recovery 
needs of Catesbaea melanocarpa in a qualitative fashion without making 
distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, if a proposed Federal action is 
incompatible with the viability of the affected core area 
population(s), inclusive of associated habitat conditions, a jeopardy 
finding is considered to be warranted, because of the relationship of 
each core area population to the survival and recovery of the species 
as a whole.
Adverse Modification Standard
    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would remain functional (or retain the 
current ability for the primary constituent elements to be functionally 
established) to serve its intended conservation role of the critical 
habitat unit for this plant is to support viable core area populations.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the species.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the PCEs to an extent that the conservation value 
of critical habitat for Catesbaea melanocarpa is appreciably reduced. 
Activities that, when carried out, funded, or authorized by a Federal 
agency, may affect critical habitat and therefore result in 
consultation for C. melanocarpa include, but are not limited to:
    (1) Actions that would reduce or degrade dry thicket scrub areas

[[Page 49221]]

dominated by patches of trees and shrubs in the Halfpenny Bay area. 
Such activities could include vegetation clearing, intensive and 
extensive cattle grazing activities, and fire. Dry forest species in 
the Caribbean are not fire-resistant species.
    (2) Earth movement activities using heavy machinery within critical 
habitat that may result in changes in quantity and quality of soils 
within designated critical habitat.
    We consider the area designated as critical habitat, as well as 
those that were excluded, to contain features essential to the 
conservation of Catesbaea melanocarpa. The designated area is within 
the geographic range of the species, was occupied by the species at the 
time of listing (64 FR 13116, March 17, 1999; Proctor 1991, pp. 43-44; 
Breckon and Kolterman 1993, p. 1), and is currently occupied by the 
species. Federal agencies already consult with us on activities in 
areas currently occupied by C. melanocarpa, or if the species may be 
affected by the action, to ensure that their actions do not jeopardize 
the continued existence of C. melanocarpa.

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

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species at the time of 
listing on which are found those physical and biological features (i) 
essential to the conservation of the species and (ii) which may require 
special management considerations or protection. Therefore, areas 
within the geographical area occupied by the species at the time of 
listing that do not contain the features essential for the conservation 
of the species are not, by definition, critical habitat. Similarly, 
areas within the geographic area occupied by the species at the time of 
listing that do not require special management or protection also are 
not, by definition, critical habitat. Following a review of all areas, 
we have determined that each area meets the definition of critical 
    There are multiple ways to provide management for species habitat. 
Statutory and regulatory frameworks that exist at a local level can 
provide such protection and management, as can lack of pressure for 
change, such as areas too remote for anthropogenic disturbance. 
Finally, State, local, or private management plans as well as 
management under Federal agencies' jurisdictions can provide protection 
and management to avoid the need for designation of critical habitat. 
When we consider a plan to determine its adequacy in protecting 
habitat, we consider whether the plan, as a whole, will provide the 
same level of protection that designation of critical habitat would 
provide. The plan need not lead to exactly the same result as a 
designation in every individual application, as long as the protection 
it provides is equivalent, overall. In making this determination, we 
examine whether the plan provides management, protection, or 
enhancement of the PCEs that is at least equivalent to that provided by 
a critical habitat designation, and whether there is a reasonable 
expectation that the management, protection, or enhancement actions 
will continue into the foreseeable future. Each review is particular to 
the species and the plan, and some plans may be adequate for some 
species and inadequate for others.

Application of Section (4)(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude an area 
from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Secretary is afforded broad discretion, and the 
Congressional record is clear that, in making a determination under the 
section, the Secretary has discretion as to which factors and how much 
weight will be given to any factor.
    Under section 4(b)(2), in considering whether to exclude a 
particular area from the designation, we must identify the benefits of 
including the area in the designation, identify the benefits of 
excluding the area from the designation, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If an 
exclusion is contemplated, then we must determine whether excluding the 
area would result in the extinction of the species. In the following 
sections, we address a number of general issues that are relevant to 
the exclusions we considered.
    The following is our analysis of the benefits of including lands 
within versus excluding such lands from this critical habitat 
(1) Benefits of Inclusion of Gu[aacute]nica and Sus[uacute]a 
Commonwealth Forests
    The principal regulatory benefit of critical habitat is that 
federally authorized, funded, or carried out activities require 
consultation pursuant to section 7 of the Act to ensure that they will 
not destroy or adversely modify critical habitat. In the Gifford 
Pinchot decision, the U.S. Court of Appeals for the Ninth Circuit ruled 
that adverse modification evaluations require consideration of impacts 
on the recovery of species (379 F.3d 1059, 1070-1072). Conducting 
section 7 consultations would provide benefits by protecting plants on 
lands with a Federal nexus. For example, if a federally funded road 
project was proposed to cross these lands that were designated as 
critical habitat, a consultation would need to be conducted to ensure 
the designated critical habitat was not destroyed or adversely 
modified. Section 7 consultations only commit Federal agencies to 
prevent adverse modification to critical habitat caused by the 
particular project, and they are not committed to provide conservation 
or long-term benefits to areas not affected by the proposed project. 
Thus, any management plan that considers enhancement or recovery as the 
management standard will always provide as much or more benefit than a 
consultation for critical habitat designation conducted under the 
standards required by the Ninth Circuit in the Gifford Pinchot 
decision. Without a critical habitat designation, Federal agencies 
remain obligated under section 7 to consult with us on actions that may 
affect a federally listed species to ensure such actions do not 
jeopardize the species' continued existence. The DNER does not utilize 
Federal funding to manage forest reserves in PR; however, the DNER 
routinely consults with us on research activities and projects on the 
forests that may affect federally listed species to ensure that the 
continued existence of such species is not adversely affected. Thus, 
under the Gifford Pinchot decision, critical habitat designations may 
provide greater benefits to the recovery of a species. However, we 
believe the conservation achieved through implementing habitat 
management plans is typically greater than would be achieved through 
multiple site-by-site, project-by-project, section 7 consultations 
involving consideration of critical habitat. Management plans commit 
resources to implement long-term management and protection to 
particular habitat for at

[[Page 49222]]

least one and possibly other listed or sensitive species.
    Designation of critical habitat also serves to educate landowners, 
State and local governments, and the public, regarding the potential 
conservation value of the area. This helps focus, prioritize, and 
revitalize conservation efforts, such as restoration projects, or more 
extensive monitoring of populations. This benefit is closely related to 
a second, more indirect benefit: that designation of critical habitat 
would inform State agencies and local governments about areas that 
could be conserved under State laws or local ordinances.
    However, the benefits of inclusion are low, since the forests are 
already managed in an appropriate manner and education of the public is 
already occurring. For instance, extensive management plans already 
cover these forests. The DNER developed a master plan for the 
Commonwealth forests of Puerto Rico in 1976. The master plan identified 
soil and land types, climate, wildlife, vegetation, land use, 
recreation opportunities, and future research needs for all 
Commonwealth forests, including Gu[aacute]nica and Sus[uacute]a 
forests. The master plan also identified management recommendations to 
address identified issues for each forest unit.
    In Gu[aacute]nica, the master plan identified special management 
considerations in accordance with the uniqueness of the forest, 
proposed to manage the forest and associated vegetation types for 
nonconsumptive use by the public, and reserved and managed the entire 
unit as a wildlife sanctuary (DNR 1976, pp. 56-58). Because of the 
forest condition, it was designated as a United Biosphere Reserve in 
1981 by the United Nations Educational, Scientific and Cultural 
Organization (UNESCO).
    For Sus[uacute]a, the master plan identified special management 
considerations, including locating representative areas of all plant 
communities and rare and endangered species and limiting public use on 
these areas; not issuing new permits for transmission lines; and 
delineating all unique areas and preserving them in their natural 
condition (DNR 1976, pp. 230-232).
    Additionally, both forests are currently managed as wildlife 
sanctuaries, protecting wildlife and plants in perpetuity and allowing 
only nonconsumptive use by the public in designated areas and trails. 
Active management includes developing and maintaining fire breaks, 
conducting prescribed burning adjacent to roads to reduce fuel load, 
removing exotic plant species along roads, and promoting scientific 
data collection, and conducting outreach and education activities 
within adjacent communities. Forest management also provides 
opportunities for scientific research and the use of existing trails 
for passive recreation and education. The Gu[aacute]nica Forest also 
provides for beach use. These current management activities have not 
been identified as threats for Catesbaea melanocarpa. Also, the DNER 
has an island-wide education program that produces educational 
materials, talks, seminars and presentations on threatened and 
endangered species in Puerto Rico and their conservation needs, 
therefore there is no appreciable educational benefit to the 
designation of critical habitat in these areas.
    The Gu[aacute]nica and Sus[uacute]a Commonwealth Forests and 
adjacent lands are designated as Critical Wildlife Areas (CWA) by the 
Commonwealth of Puerto Rico (DNER 2005, pp. 211 and 221). The CWA 
designation constitutes a special recognition by the Commonwealth with 
the purpose of providing information to Commonwealth and Federal 
agencies about the conservation needs of these areas and assisting 
permitting agencies in precluding negative impacts as a result of 
permit approvals or endorsements (DNER 2005, pp. 2-3).
    We believe there may be some benefits of inclusion, but they would 
be low because of the ongoing efforts of the Commonwealth. Critical 
habitat designation alone does not require specific steps toward 
recovery. The benefits of including these DNER-managed lands in 
designated critical habitat are minimal because the land managers and 
landowners are currently implementing conservation actions for C. 
melanocarpa and its habitat that encompass more than a critical habitat 
designation would. The DNER manages the forests as wildlife 
sanctuaries, does not allow for economic use of the forests and 
conducts management activities consistent with the conservation of the 
species and its habitat, including educating the public. Additionally, 
the purpose normally served by the designation, that of informing State 
agencies and local governments about areas that would benefit from 
protection and enhancement of habitat for Catesbaea melanocarpa, is 
already well established among State and local governments and Federal 
agencies in those areas that we are excluding from critical habitat in 
this rule on the basis of other existing habitat management 
    (2) Benefits of Exclusion of Gu[aacute]nica and Sus[uacute]a 
Commonwealth Forests
    Exclusion would further enhance the cooperative working 
relationship with the Forests by focusing on activities that are 
designed to protect and recover the species, and allowing resources to 
go toward on-the-ground efforts rather than regulatory procedures. 
Since 1984, the Service and DNER have a signed cooperative agreement 
pursuant to section 6 (c) of the Act, establishing a partnership 
agreement for the purpose of implementing an endangered and threatened 
fish, wildlife and plant species conservation program in the 
Commonwealth of Puerto Rico. Both parties agree that programs of the 
Commonwealth of Puerto Rico are designed to assist resident endangered 
and threatened species; it is their mutual desire to work in harmony 
for the common purpose of planning, developing and conducting programs 
to protect, manage and enhance the populations of all resident 
endangered and threatened fish, wildlife and plants within the 
Commonwealth of Puerto Rico. As stated previously, there are instances 
where section 7 consultation could occur. If these lands are 
designated, there would be an additional burden for each individual 
action to ensure that designated critical habitat was not destroyed or 
adversely modified. Given the goal of the Commonwealth to protect, 
manage and enhance populations, this additional burden would likely add 
additional time and paperwork to consultations, which is unnecessary.
    Threats identified for Catesbaea melanocarpa on the Gu[aacute]nica 
and Sus[uacute]a Commonwealth Forests are human-induced fires during 
dry season and cutting of vegetation for trail and powerline 
maintenance. The DNER has regulatory mechanisms to protect individuals 
of C. melanocarpa from these threats within the forest boundaries, and 
forest managers are aware of the occupied localities within the 
forests. We believe that management guidelines for both forests, 
current local laws and regulations and the close coordination and 
excellent working partnership with DNER will adequately address 
identified threats to C. melanocarpa, features essential to its 
conservation, and its habitat on DNER lands.
    The DNER approved laws and regulations to protect threatened and 
endangered species within lands under their jurisdiction. In 1999, the 
Commonwealth of Puerto Rico approved Law Number 241, Wildlife Law of 
the Commonwealth of Puerto Rico (Ley de Vida Silvestre del Estado Libre 
Asociado de Puerto Rico--Ley N[uacute]m. 241 del 15 Ago. 1999). The 
purpose of

[[Page 49223]]

this law is to protect, conserve, and enhance native and migratory 
wildlife species; declare all wildlife species within its jurisdiction 
as the property of Puerto Rico; regulate permits; regulate hunting 
activities; and regulate exotic species. In 2004, the DNER approved 
Commonwealth of Puerto Rico's Regulation Number 6766, which regulates 
the management of threatened and endangered species in Puerto Rico 
(Reglamento para Regir el Manejo de las Especies Vulnerables y en 
Peligro de Extinci[oacute]n en el Estado Libre Asociado de Puerto 
Rico--N[uacute]m. 6766 del 11 de Feb 2004). Catesbaea melanocarpa has 
been included in the list of protected species. Article 2.06 of this 
regulation prohibits collecting, cutting, and removing (among other 
activities) listed plant individuals within the jurisdiction of PR.
    Recent surveys conducted in Gu[aacute]nica Commonwealth Forest have 
expanded the known range of other federally listed species such as 
Trichilia triacantha (bariaco) and Ottoschulzia rhodoxylon (palo de 
rosa), and other State-protected species all previously known for only 
a few individuals within the forest. We believe additional occurrences 
of Catesbaea melanocarpa will be found in both forests. Protection of 
such areas, as the Commonwealth forests, conveys stability of forest 
development since most forests in Puerto Rico were destroyed for 
agriculture. Forest reserves like Gu[aacute]nica, protected since 1919, 
provide the necessary structure to support the conservation of the 
species, and thus the benefit of additional regulatory requirements for 
the conservation of the species is extremely low.
    Therefore, the benefits of exclusion are relaxation of regulatory 
requirements that would be imposed by the designation. Exclusion would 
also enhance the partnership efforts with the DNER focused on 
conservation of the species in the State, and secure conservation 
benefits for the species beyond those that could be attained through 
the regulatory requirements under section 7 of the Act if the area were 
designated as critical habitat. When landowners are already taking 
sufficient steps to conserve the species, the imposition of additional 
regulatory requirements is not necessary. Further, it may require the 
expenditure of funds on consultations for projects that are largely 
beneficial to the species. Exclusion of these lands from critical 
habitat designation would eliminate the need to expend these funds.
(3) Benefits of Exclusion of Gu[aacute]nica and Sus[uacute]a 
Commonwealth Forests Outweigh the Benefits of Inclusion
    Thus, on the basis that Sus[uacute]a and the Gu[aacute]nica 
Commonwealth Forests are being adequately managed as wildlife 
sanctuaries by DNER, where they are protecting wildlife and plants in 
perpetuity and allowing only nonconsumptive use by the public in 
designated areas and trails, we believe that, for these sites, the 
benefits of inclusion are nominal. We believe these benefits to include 
increased recognition concerning the status and conservation needs of 
the species and protection afforded through consultations with Federal 
action agencies under section 7 of the Act. In contrast, we believe 
greater benefits will be realized for the species by excluding these 
specific lands from designated critical habitat. These benefits include 
relief from the expenditure of resources to conduct consultations under 
section 7 of the Act with Federal action agencies, maintaining 
partnerships with DNER, and recognition of the on-going conservation 
measures that they are taking for the species. It is our determination 
that these combined measures will provide greater conservation benefits 
for Catesbaea melanocarpa than the benefits realized through the 
regulatory designation of critical habitat and will put available 
resources toward on-the-ground efforts rather than implementing a 
regulatory procedure. We have also evaluated economic impacts for this 
exclusion, but we do not believe there are disproportionate impacts 
that warrant an exclusion under section 4(b)(2) of the Act on that 
(4) Exclusion Will Not Result in Extinction
    Approximately 88 percent of the known Catesbaea melanocarpa 
individuals within U.S. jurisdiction are located within the designated 
critical habitat. The remaining 12 percent (13 known individuals) are 
within the excluded areas. We anticipate that little, if any, 
conservation benefit to C. melanocarpa will be foregone as a result of 
excluding these areas, as both forests are currently managed as 
wildlife sanctuaries, protecting wildlife and plants in perpetuity, 
allowing only nonconsumptive use by the public in designated areas and 
trails, and since the forests are already managed in an appropriate 
manner. Additionally, the conservation status of these forests and 
current local laws and regulations in PR adequately protect essential 
C. melanocarpa habitat and provide appropriate management to maintain 
and enhance the primary constituent elements for the species within the 
forests. As a result of the protection of C. melanocarpa and its 
habitat provided in both forests, and the fact that the majority of 
occurrences are within designated critical habitat, we find that the 
exclusion of these areas will not result in the extinction of C. 
melanocarpa. Accordingly, we exercise discretion under section 4(b)(2) 
of the Act to exclude these areas from the designation of critical 

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific information available and 
to consider the economic and other relevant impacts of designating a 
particular area as critical habitat. We may exclude areas from critical 
habitat upon a determination that the benefits of such exclusions 
outweigh the benefits of specifying such areas as critical habitat. We 
cannot exclude such areas from critical habitat when such exclusion 
will result in the extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on March 14, 2007 (72 FR 11819). We 
accepted comments on the draft analysis until April 13, 2007.
    The purpose of the economic analysis is to estimate the potential 
economic impacts associated with the designation of critical habitat 
for Catesbaea melanocarpa. This information is intended to assist the 
Secretary in making decisions about whether the benefits of excluding 
particular areas from the designation outweigh the benefits of 
including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State

[[Page 49224]]

and natural resource laws, and enforceable management plans and best 
management practices applied by other State and Federal agencies. 
Economic impacts that result from these types of protections are not 
included in the analysis as they are considered to be part of the 
regulatory and policy baseline.
    The draft economic analysis estimated a potential economic cost of 
$132,300 to $441,000 over a 20-year period as a result of the critical 
habitat designation. The analysis, which was prepared in a manner 
consistent with the ruling in N.M. Cattle Growers Ass'n v. USFWS, 248 
F3rd 1277 (10th Cir. 2001), measured lost economic efficiency 
associated with residential and commercial development, and public 
projects and activities. Potential economic impacts stem entirely from 
possible limitations on development of the designated property. The 
total potential value loss is 21 percent of the property's market 
value. The actual loss would depend on the future sale price, and could 
range from $132,300 to $441,000. This potential value loss is based on 
the implementation of the conservation recommendations, which consist 
of protecting existing individuals (approximately 100 plants) and 
maintaining a buffer of 20 meters around them as a setback from a 
development project. The analysis also conservatively included all 
potential costs attributed to consultation requirements resulting both 
from the listing of the species and designation of critical habitat. 
Overall, the analysis did not anticipate a decrease in the amount of 
construction activity on St. Croix as a result of the designation. As a 
result, small developers and construction firms are not anticipated to 
be affected. For Gu[aacute]nica and Sus[uacute]a Commonwealth Forests, 
we evaluated the activities that we expect to occur in the forests, 
based on their management plans. These include nonconsumptive public 
recreational use, developing and maintaining fire breaks, conducting 
prescribed burning adjacent to roads, scientific data collecting, and 
removing exotic plant species. Although we have not quantified any 
impacts to these activities as a result of the designation, these 
actions are likely to have a minimal or beneficial affect to the 
species and therefore we expect the economic impacts to these areas 
would be small if they were designated as critical habitat. Based on 
the analysis, we have concluded that the economic impacts that may 
result from the designation alone are minimal.
    A copy of the final economic analysis with supporting documents are 
included in our administrative record and may be obtained by contacting 
U.S. Fish and Wildlife Service, Caribbean Fish and Wildlife Office (see 
    Pursuant to section 4(b)(2) of the Act, we must consider relevant 
impacts in addition to economic ones. We determined that the lands 
within the designation of critical habitat for Catesbaea melanocarpa 
are not owned or managed by the Department of Defense, there are 
currently no habitat conservation plans for C. melanocarpa, and the 
designation does not include any Tribal lands or trust resources. We 
anticipate no impact to national security or Tribal lands. Our economic 
analysis indicates an overall low potential cost resulting from the 
designation. Therefore, we have not excluded any areas from this 
designation of critical habitat for C. melanocarpa based on economic 
impacts. As such, we have considered, but not excluded, any lands from 
this designation based on the potential impacts to these factors. We 
have excluded areas for other reasons; please see the section 4(b)(2) 
exclusions discussion under ``Application of Section (4)(b)(2) of the 
Act'' above.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but will not have an annual effect on the economy of $100 million or 
more or affect the economy in a material way. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule. As explained above, 
we prepared an economic analysis of this action. The draft economic 
analysis estimated a potential economic cost of $132,300 to $441,000 
over a 20-year period as a result of the critical habitat designation. 
We used the information in and results of this analysis to meet the 
requirement of section 4(b)(2) of the Act to determine the economic 
consequences of designating the specific areas as critical habitat. We 
also used it to help determine whether to exclude any area from 
critical habitat, as provided for under section 4(b)(2). Based on this 
economic analysis, we believe that there are no disproportionate 
economic impacts that warrant exclusion pursuant to section 4(b)(2) of 
the Act at this time.

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

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a statement of the factual basis 
for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA also 
amended the RFA to require a certification statement.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (that is, 
housing development, grazing, oil and gas production, timber 
harvesting). We apply the ``substantial number'' test individually to 
each industry to determine if certification is appropriate. However, 
the SBREFA does

[[Page 49225]]

not explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect Catesbaea melanocarpa. Federal agencies also must consult with 
us if their activities may affect critical habitat. Designation of 
critical habitat, therefore, could result in an additional economic 
impact on small entities due to the requirement to reinitiate 
consultation for ongoing Federal activities.
    In our economic analysis of the critical habitat designation, we 
evaluated the potential economic effects on small business entities 
resulting from conservation actions related to the listing of Catesbaea 
melanocarpa and proposed designation of its critical habitat. This 
analysis estimated prospective economic impacts due to the 
implementation of conservation efforts for the species, such as 
incorporating a buffer zone around the individuals into the development 
project plans. We determined from our analysis that the implementation 
of conservation measures for C. melanocarpa within the proposed 
designation may impact the private landowners, but impacts are not 
anticipated to small business.
    Costs associated with the value of the land for residential and 
commercial development comprise 100 percent of the total quantified 
potential future impacts. Total potential costs are expected to be 
$132,300 to $441,000 over a 20-year period. These costs are related to 
the implementation of a buffer zone of 20 m (66 ft) around the current 
population as a conservation measure for private development within the 
critical habitat designation. This buffer zone has the potential to 
affect approximately 10.5 ac (4.3 ha) of the property. Overall, the 
analysis does not anticipate a decrease in the amount of construction 
activity on St. Croix as a result of the designation. As a result, 
small developers and construction firms are not anticipated to be 
affected. Please refer to our final economic analysis for this 
designation for a more detailed discussion of potential economic 
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for the private 
landowners of the Halfpenny Bay area if they are required to consult 
with us regarding the effects of projects' impacts on Catesbaea 
melanocarpa or its habitat. First, if we conclude, in a biological 
opinion, that a proposed action is likely to jeopardize the continued 
existence of a species or adversely modify its critical habitat, we can 
offer ``reasonable and prudent alternatives.'' Reasonable and prudent 
alternatives are alternative actions that can be implemented in a 
manner consistent with the scope of the Federal agency's legal 
authority and jurisdiction, that are economically and technologically 
feasible, and that would help the applicant to avoid jeopardizing the 
continued existence of listed species or result in adverse modification 
of critical habitat. A Federal agency and an applicant may elect to 
implement a reasonable and prudent alternative associated with a 
biological opinion that has found jeopardy or adverse modification of 
critical habitat. An agency or applicant could alternatively choose to 
seek an exemption from the requirements of the Act or proceed without 
implementing the reasonable and prudent alternative. However, unless an 
exemption were obtained, the Federal agency or applicant would be at 
risk of violating section 7(a)(2) of the Act if it chose to proceed 
without implementing the reasonable and prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal or plant species, 
we may identify reasonable and prudent measures designed to minimize 
the amount or extent of take and require the Federal agency or 
applicant to implement such measures through nondiscretionary terms and 
conditions. We may also identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or to develop information that could contribute to the 
recovery of the species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. We can only describe the general 
kinds of actions that may be identified in future reasonable and 
prudent alternatives. These are based on our understanding of the needs 
of the species and the threats it faces, as described in the final 
listing rule and its critical habitat designation. Within the final 
designation area, the types of Federal actions or authorized activities 
that we have identified as potential concerns are:
    (1) Regulation of activities affecting waters of the United States 
by the U.S. Army Corps of Engineers under section 404 of the Clean 
Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization implemented or licensed by Federal agencies;
    (3) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities;
    (4) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Act;
    (5) Activities authorized or funded by the Environmental Protection 
Agency, U.S. Department of Energy, or any other Federal agency.
    It is likely that a developer or other project proponent could 
modify a project or take measures to protect Catesbaea melanocarpa. The 
kind of actions that may be included if future reasonable and prudent 
alternatives become necessary include conservation set-asides, 
management of competing nonnative species, restoration of degraded 
habitat, and regular monitoring. These are based on our understanding 
of the needs of the species and threats it faces, as described in the 
final listing rule and proposed critical habitat designation. These 
measures are not likely to result in a significant economic impact to 
project proponents.
    In summary, we have considered whether this would result in a 
significant economic effect on a substantial number of small entities. 
We have determined, for the above reasons and based on currently 

[[Page 49226]]

information, that it is not likely to affect a substantial number of 
small entities. Federal involvement, and thus section 7 consultations, 
would be limited to the area designated. The most likely Federal 
involvement could include Federal Highway Administration funding for 
road improvement, Natural Resources Conservation Service funding for 
agricultural practices, Housing and Urban Development funding for 
residential development and Federal Communications Commission permits 
for the construction and operation of telecommunication towers. 
Therefore, for the above reasons and based on currently available 
information, we certify that the rule will not have a significant 
economic impact on a substantial number of small entities, and a 
regulatory flexibility analysis is not required.

Energy Supply, Distribution or Use (E.O. 13211)

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. Based on the 
information from the economic analysis, this final rule to designate 
critical habitat for Catesbaea melanocarpa is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. As such, Small Government Agency Plan is 
not required.

Takings (E.O. 12630)

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating 10.5 ac (4.3 ha) of lands in Halfpenny Bay area in St. 
Croix, USVI as critical habitat for Catesbaea melanocarpa in a takings 
implication assessment. The takings implications assessment concludes 
that this final designation of critical habitat does not pose 
significant takings implications for lands within or affected by the 

Federalism (E.O. 13132)

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

Civil Justice Reform (E.O. 12988)

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

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork

[[Page 49227]]

Reduction Act. This rule will not impose recordkeeping or reporting 
requirements on State or local governments, individuals, businesses, or 
organizations. An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This assertion was upheld in the courts 
of the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Indian Tribes (E.O. 13175)

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

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Caribbean Fish and 


    The primary authors of this package are the staff of Caribbean Fish 

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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


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

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

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

Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
Flowering Plants

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

                                                                      * * * * * * *

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

Sec.  17.96  Critical habitat--plants.

    (a) * * *
    Family Rubiaceae: Catesbaea melanocarpa (no common name)
    (1) Critical habitat is depicted on the map below for Halfpenny 
Bay, St. Croix, U.S. Virgin Islands.
    (2) The primary constituent elements (PCEs) of critical habitat for 
Catesbaea melanocarpa are the habitat components that provide:
    (i) Single-layered canopy forest with little ground cover and open 
forest floor that supports patches of dry vegetation with grasses, and
    (ii) Well to excessively drained limestone and serpentine-derived 
soils (including soils of the San German, Nipe, and Rosario series and 
Glynn and Hogensborg series).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, roads, and other paved areas) and the 
land on which they are located existing on the effective date of this 
rule and not containing one or more of the primary constituent 
    (4) Critical habitat map. Data layers were created by overlaying 
habitats that contain at least two of the PCEs, as defined in paragraph 
(2) of this section, on U.S. Geological Survey (USGS) topographic maps 
(UTM 20, NAD 27).
    (5) Critical Habitat unit: Halfpenny Bay, St. Croix, U.S. Virgin 
    (i) General description: The Halfpenny Bay unit consists of 
approximately 10.5 ac (4.3 ha) on privately owned property located 
about 2.48 mi (4 km) south of Christiansted, St. Croix, U.S. Virgin 
Islands. The designated unit is located east of South Shore Road, 
approximately 342 m (1,122 ft) south of Road 62, approximately 600 m 
(1,968 ft) north of the Halfpenny Bay coast, and 70 m (230 ft) west of 
a local road to Halfpenny Bay. This unit encompasses the habitat 
features essential to the conservation of Catesbaea melanocarpa within 
Estate Granard, Christiansted, St. Croix, and does not contain any 
manmade structures.
    (ii) Coordinates: From Christiansted USGS 1:24,000 quadrangle map, 
St. Croix land bounded by the following UTM 20 NAD 27 coordinates 

319156.03, 1958989.97; 319205.44, 1959023.35; 319258.18, 1959055.40; 
319297.57, 1959086.11; 319397.72, 1959126.83; 319437.78, 1959079.43; 
319393.05, 1958998.65; 319340.97, 1958916.53; 319356.33, 1958854.44; 
319307.59, 1958819.72; 319284.39,

[[Page 49228]]

1958851.87; 319259.52, 1958866.45; 319226.80, 1958883.81; 319181.40, 
1958951.24; 319156.03, 1958989.97

    (iii) Note: Map of Halfpenny Bay follows:


* * * * *

    Dated: August 14, 2007.
Mitchell J. Butler,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-4061 Filed 8-27-07; 8:45 am]