Federal Register, Volume 87 Issue 230 (Thursday, December 1, 2022) 2022 Federal Register, 87 FR 73655-73682; Centralized Library: U.S. Fish and Wildlife Service -

[Federal Register Volume 87, Number 230 (Thursday, December 1, 2022)]
[Rules and Regulations]
[Pages 73655-73682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25805]

[[Page 73655]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2020-0083; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BE16

Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Puerto Rican Harlequin Butterfly and
Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), list the
Puerto Rican harlequin butterfly (Atlantea tulita), a species from
Puerto Rico, as a threatened species with a rule issued under section
4(d) of the Endangered Species Act of 1973 (Act), as amended. We also
designate critical habitat for this species under the Act. In total,
approximately 41,266 acres (16,699.8 hectares) in six units in the
municipalities of Isabela, Quebradillas, Camuy, Arecibo, Utuado,
Florida, Ciales, Maricao, San Germ[aacute]n, Sabana Grande, and Yauco
are within the boundaries of the critical habitat designation. This
rule extends the Act's protections to the species and its designated
critical habitat.

DATES: This rule is effective January 3, 2023.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as
some supporting documentation we used in preparing this rule, are
available for public inspection at https://www.regulations.gov.
The coordinates or plot points or both from which the maps are
generated are included in the decision file for this critical habitat
designation and are available at https://www.regulations.gov at Docket
No. FWS-R4-ES-2020-0083, or from the Caribbean Ecological Services
Field Office https://www.fws.gov/office/caribbean-ecological-services)
(see FOR FURTHER INFORMATION CONTACT). Any additional tools or
supporting information developed will also be available at the Fish and
Wildlife Service website and Field Office identified below and at
https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Edwin Mu[ntilde]iz, Field Supervisor,
Caribbean Ecological Services Field Office, U.S. Fish and Wildlife
Service, P.O. Box 491, Boqueron, PR 00622; email caribbean_es@fws.gov;
telephone 787-405-3641. Individuals in the United States who are deaf,
deafblind, hard of hearing, or have a speech disability may dial 711
(TTY, TDD, or TeleBraille) to access telecommunications relay services.
Individuals outside the United States should use the relay services
offered within their country to make international calls to the point-
of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered in the foreseeable
future throughout all or a significant portion of its range). If we
determine that a species warrants listing, we must list the species
promptly and designate the species' critical habitat to the maximum
extent prudent and determinable. We have determined that the Puerto
Rican harlequin butterfly meets the definition of a threatened species;
therefore, we are listing it as such and finalizing a designation of
its critical habitat. Both listing a species and designating critical
habitat can be completed only by issuing a rule through the
Administrative Procedure Act rulemaking process.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that habitat modification and
fragmentation (Factor A) caused by urban development and agriculture,
human-induced fires, pesticides (insecticides and herbicides), small
population size, and climate change (Factor E) are the primary threats
affecting the current and future viability of the Puerto Rican
harlequin butterfly.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, 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 protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Economic analysis. In accordance with section 4(b)(2) of the Act,
we prepared an economic analysis of the impacts of designating critical
habitat for the Puerto Rican harlequin butterfly. On October 13, 2020,
we made available, and solicited public comments on, the draft economic
analysis in our proposed critical habitat rule (85 FR 64908). We
received no comments or new information on the draft economic analysis,
and we have adopted the draft economic analysis as final.
Peer review and public comments. During the proposed rule stage, we
sought the expert opinions of six appropriate specialists regarding the
species status assessment report. We received responses from one
specialist, which helped inform our SSA report and are incorporated in
the proposed rule and this final rule. We also considered all comments
and information we received from the public during the comment period
on the proposed rule (see 85 FR 64908; October 13, 2020).

Previous Federal Actions

Please refer to the October 13, 2020, proposed rule (85 FR 64908)
for a detailed description of previous Federal actions concerning this
species.

Supporting Documents

As part of the process of listing the Puerto Rican harlequin
butterfly, a species status assessment (SSA) team prepared an SSA
report for the species. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species. The SSA report underwent independent

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peer review by a scientist with expertise in insect biology, habitat
management, and stressors (factors negatively affecting the species) to
the species. Along with other information submitted during the process
of listing the species, the SSA report is the primary source of
information for this final designation. The SSA report and other
materials relating to this rule can be found on the Service's Southeast
Region website at https://www.fws.gov/about/region/southeast and at
https://www.regulations.gov under Docket No. FWS-R4-ES-2020-0083.

Summary of Changes From the Proposed Rule

After full consideration of the comments we received and that are
summarized below under Summary of Comments and Recommendations, this
final rule makes one substantive change to our October 13, 2020,
proposed rule (85 FR 64908): We have revised the incidental take
exception for normal agricultural practices. In this 4(d) rule, we
clarify that the incidental take exception does not apply to take
resulting from pesticide application in or contiguous to habitat known
to be occupied by the Puerto Rican harlequin butterfly. For this
exception, we replace the word ``adjacent'' from our proposed rule with
the word ``contiguous'' in this final rule to clarify that we mean
areas that share a common border, and to avoid the interpretation that
``adjacent'' may mean areas that are near each other but not touching.

Summary of Comments and Recommendations

On October 13, 2020, we proposed to list the Puerto Rican harlequin
butterfly as a threatened species with a section 4(d) rule and
designate critical habitat for the species (85 FR 64908), and made
available the associated draft economic analysis (DEA). The public
comment period for that proposed rule was open for 60 days, ending
December 14, 2020. During the open comment period, we received 11
public comments on the proposed rule; the majority of comments
supported the proposed rule, none opposed the proposed rule, and some
included suggestions on how we could refine or improve the critical
habitat designation and 4(d) rule. All substantive information provided
to us during the comment period is addressed below.
(1) Comment: One commenter concurred with the Service that the
Puerto Rican harlequin butterfly should be listed as a threatened
species. However, they stated that, although certain land where a golf
course is located has special value for wildlife in general, that area
does not meet the definition of critical habitat under the Act. Thus,
they requested that the Service amend the proposed critical habitat
designation to remove the golf course from critical habitat for the
Puerto Rican harlequin butterfly. Also, they recommended that the 89
acres of government land at Isabela that is protected habitat managed
by a conservation trust be designated as critical habitat for the
species.
Our Response: We proposed to designate critical habitat on adjacent
public lands and on private lands within the golf course development.
Within these privately held lands, only the areas that have the
essential physical or biological features for the species were included
in the proposed critical habitat, and those areas are included in this
final designation. The proposed critical habitat did not, and this
final designation does not, include the golf course proper (e.g.,
fairways, greens, manmade structures) nor other private land that is
part of the golf course development but lacks the physical or
biological features essential for the species. The 89 acres managed by
the conservation trust on land adjacent to the golf course was included
in our proposed designation and is included in this final designation
of critical habitat.
(2) Comment: A commenter contends that the proposed 4(d) rule is
ineffective, fails to conserve the species because it does not
adequately address pesticide use as a threat to the species, and fails
to comply with section 7 of the Act (16 U.S.C. 1531 et seq.). The
commenter states that the Service has recognized the severe threat of
pesticide spraying to the Puerto Rican harlequin butterfly's survival
since 2011, when the Service described this threat as significant and
imminent in its finding that listing the species was warranted but
precluded. For these reasons, they state that the 4(d) rule should
prohibit any spraying of pesticides in or adjacent to Puerto Rican
harlequin butterfly habitat and require adequate buffer setbacks.
Our Response: While the Service has characterized pesticide use as
a current and ongoing threat, we have not characterized it as
``severe.'' Rather, it has been described as ``significant'' in
connection with other threats to the species, including the
destruction, modification, and curtailment of the species' habitat, as
well as the species' limited distribution and specialized ecological
requirements, which are the most significant threats to the species.
Pesticide use was identified as one of several other threats acting
cumulatively with other threats, particularly in regard to habitat
destruction and fragmentation. Because we identified improper
application of pesticides as one of the threats to the species, and in
consideration of public comments we received, in this final 4(d) rule
we are not providing an exception for incidental take associated with
pesticide applications in or contiguous to habitat known to be occupied
by the Puerto Rican harlequin butterfly (see Summary of Changes from
the Proposed Rule, above). However, it is not our intent to preclude
application of pesticides in all circumstances. Accordingly, we use the
phrase ``known to be occupied'' to clarify that there is a geographical
limit on the extent of the prohibitions. For example, the Puerto Rican
harlequin butterfly would have to be exposed to particular actions for
those actions to cause take, and the butterfly could only be exposed if
it is known to occupy the project area. This prohibition does not apply
in areas the butterfly does not occupy as there is no risk of take of
butterflies in unoccupied areas. The Service can provide technical
assistance to help determine whether the Puerto Rican harlequin
butterfly occupies a specific area. If noxious weed control is needed
where the Puerto Rican harlequin butterfly is present, the Service will
work with landowners or land managers to identify techniques to control
weeds that avoid take of or minimize effects to the Puerto Rican
harlequin butterfly.
(3) Comment: A commenter stated that the proposed 4(d) rule
unnecessarily places a substantial focus on preventing and controlling
overcollection of the species, with four out of five prohibitions
focused on possession and commerce of unlawfully taken specimens. The
commenter explained that although collection could theoretically be a
threat to this species, the Service's SSA report and other relevant
research have shown no substantiated indications that collection is
actually occurring, and that the proposed 4(d) rule provides little
tangible protection to the Puerto Rican harlequin butterfly.
Our Response: The provisions in section 4(d) of the Act give us
discretion to apply the prohibitions provided in section 9 of the Act
for endangered species to threatened species. Accordingly, our 4(d)
rule generally extends these same prohibitions to the Puerto Rican
harlequin butterfly as a threatened species, which include a
prohibition on selling or offering for sale in interstate or foreign
commerce. We determined these prohibitions

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concerning overcollection by private butterfly enthusiasts or
collection for commercial purposes are necessary because, when listed,
the Puerto Rican harlequin butterfly will likely be more appealing to
private collectors. Although observations of trafficking the species
are rare, it does not necessarily mean such collection is not
occurring. Such collection would be incompatible with the species'
recovery needs. However, the 4(d) rule allows for scientific
collection, e.g., for propagation, which may entail a low level of take
to promote the conservation of the species. In addition to the
prohibitions on take to avoid overcollection of the species and the
provision for conservation via scientific collection and propagation,
our 4(d) rule addresses the threats to the species and its conservation
needs by providing for habitat conservation and restoration.

I. Final Listing Determination

Background

Please refer to the October 13, 2020, proposed rule (85 FR 64908)
and the SSA report (Service 2019, entire) for a full summary of species
information. These documents are available at https://www.regulations.gov under Docket No. FWS-R4-ES-2020-0083.
The Puerto Rican harlequin butterfly is endemic to Puerto Rico,
occurring in the western portion of the island, in the Northern Karst
region and in the West-central Volcanic-serpentine region. The life
cycle of the Puerto Rican harlequin butterfly includes four distinct
anatomical stages: egg, larva (caterpillar, with several size phases
called instars), chrysalis (pupa), and imago (butterfly or adult).
Completion of the species' life cycle, from egg to butterfly, likely
averages 125 days, but can vary based on temperature and humidity.
Relative to other butterfly species, the Puerto Rican harlequin
butterfly is medium-sized. The male butterfly's abdomen is brownish-
black on the dorsal side and has orange and brown bands on the ventral
side, while the female's abdomen is brownish-black with white bands.
Wings of both sexes are largely brownish-black with sub-marginal rows
of deep orange spots and beige cells. The caterpillar is dark orange
with a brownish-black to black thin line, over a thin intermittent
white line along each side of the body from the head to hind end. Each
body segment of the caterpillar has several evenly-spaced pairs of
spines covered in hairs.
All life stages of the Puerto Rican harlequin butterfly are
observed year-round, suggesting that mating and oviposition (egg-
laying) may occur at any time during the year. The species has been
observed to disperse up to approximately 1 kilometer (km) (0.6 mile
(mi)) from one breeding site to another. Eggs and larvae are found only
on Oplonia spinosa (prickly bush). First instars feed only on this
plant. While prickly bush is essential to Puerto Rican harlequin
butterfly viability, the plant occurs throughout the species' range
and, unless removed for land clearing, is not a limited resource.
Active during the daytime, the butterflies feed on the nectar of
several tree species and also drink water. Puerto Rican harlequin
butterflies have been found only within 1 km (0.6 mi) of a water source
(e.g., creek, river, pond, puddle).

Regulatory and Analytical Framework

Regulatory Framework

Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for threatened and
endangered species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued final rules that revised the regulations in
50 CFR parts 17 and 424 regarding how we add, remove, and reclassify
threatened and endangered species and the criteria for designating
listed species' critical habitat (84 FR 45020 and 84 FR 44752; August
27, 2019). At the same time the Service also issued final regulations
that, for species listed as threatened species after September 26,
2019, eliminated the Service's general protective regulations
automatically applying to threatened species the prohibitions that
section 9 of the Act applies to endangered species (collectively, the
2019 regulations).
As with the proposed rule, we are applying the 2019 regulations for
this final rule because the 2019 regulations are the governing law just
as they were when we completed the proposed rule. Although there was a
period in the interim--between July 5, 2022, and September 21, 2022--
when the 2019 regulations became vacated and the pre-2019 regulations
therefore governed, the 2019 regulations are now in effect and govern
listing and critical habitat decisions (see Center for Biological
Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July
5, 2022) (CBD v. Haaland) (vacating the 2019 regulations and thereby
reinstating the pre-2019 regulations)); In re: Cattlemen's Ass'n, No.
22-70194 (9th Cir. Sept. 21, 2022) (staying the district court's order
vacating the 2019 regulations until the district court resolved a
pending motion to amend the order); Center for Biological Diversity v.
Haaland, No. 4:19-cv-5206-JST, Doc. Nos. 197, 198 (N.D. Cal. Nov. 16,
2022) (granting plaintiffs' motion to amend July 5, 2022 order and
granting government's motion for remand without vacatur).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an ``endangered species'' or a
``threatened species'' because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of

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those actions and conditions that will ameliorate the threats--on an
individual, population, and species level. We evaluate each threat and
its expected effects on the species, then analyze the cumulative effect
of all of the threats on the species as a whole. We also consider the
cumulative effect of the threats in light of those actions and
conditions that will have positive effects on the species, such as any
existing regulatory mechanisms or conservation efforts. The Secretary
determines whether the species meets the definition of an ``endangered
species'' or a ``threatened species'' only after conducting this
cumulative analysis and describing the expected effect on the species
now and in the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Services can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' likely responses to threats include species-specific factors
such as lifespan, reproductive rates or productivity, certain
behaviors, and other demographic factors.

Analytical Framework

The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the Puerto Rican harlequin butterfly, including an
assessment of the potential threats to the species. The SSA report does
not represent a decision by the Service on whether the species should
be proposed for listing as an endangered or threatened species under
the Act. It does, however, provide the scientific basis that informs
our regulatory decisions, which involve the further application of
standards within the Act and its implementing regulations and policies.
The following is a summary of the key results and conclusions from the
SSA report; the full SSA report can be found at https://www.regulations.gov under Docket No. FWS-R4-ES-2020-0083.
To assess Puerto Rican harlequin butterfly viability, we used the
three conservation biology principles of resiliency, redundancy, and
representation (the ``3Rs'') (Shaffer and Stein 2000, pp. 306-310).
Briefly, resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. In the final stage of the SSA, we made
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We also use this information to inform our regulatory
decision.

Summary of Biological Status and Threats

In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.

Species Needs

Puerto Rican harlequin butterflies need the tender new growth of
the host plant, prickly bush, for egg laying by adults and feeding by
caterpillars. Adults rely on particular types of woody plants for
nectar feeding (at least 24 have been identified as plants upon which
they feed), and a water source within 1 km (0.6 mi) for hydration.
Suitable habitat consists of forests that may vary in stage of
succession and age, with 50 to 85 percent canopy cover. The species
occurs both in large blocks of undisturbed forest and in forest patches
interspersed with agricultural lands, houses, and roads. In areas that
are a mix of developed lands and forest, the species needs forested
corridors (with prickly bush covering more than 30 percent) connecting
breeding sites.

Current Condition of Puerto Rican Harlequin Butterfly

Currently, the Puerto Rican harlequin butterfly populations occur
in six areas: (1) Isabela, Quebradillas, and Camuy (hereafter referred
to as the IQC population); (2) Guajataca; (3) R[iacute]o Abajo
Commonwealth Forest; (4) R[iacute]o Encantado; (5) Maricao Commonwealth
Forest; and (6) Sus[uacute]a Commonwealth Forest. The IQC, Guajataca,
R[iacute]o Abajo, and R[iacute]o Encantado populations occur in the
northwestern portion of Puerto Rico, in the Northern Karst
physiographic region. The Maricao and Sus[uacute]a populations occur in
the west-central portion of the island, in the West-central Volcanic-
serpentine physiographic region. A seventh population occurred in
Tallaboa, in southwestern Puerto Rico, in the Sothern Karst
physiographic region, but has not been observed since 1926 and is
presumed extirpated.
We considered an area to have an extant population if at least two
of the four life stages (egg, caterpillar, chrysalis, adult) were
observed in the course of repeated surveys conducted in one year. All
extant populations have been observed as recently as 2018. Each of the
extant six populations likely functions as a metapopulation, a discrete
population composed of local populations (subpopulations) with
individuals that can move infrequently from one subpopulation to
another.
Population size is an important component of resiliency. However,
quantitative population size estimates (statistically derived) for the
Puerto Rican harlequin butterfly are not available. There have been
several surveys for the species since 2003, although survey methods and
objectives

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have varied. Most data consist of counts of the various life stages
during single survey events. In some areas, there are valid reports of
species occurrence (by species experts) but no count data. Thus, the
estimated abundance of the species per population varies according to
the methodology implemented during the survey and the source of
information.
We did not assess resiliency of the Guajataca population, which was
discovered on July 15, 2019, and thereafter verified by Service
biologists, because we do not have the habitat metrics-as identified in
Table 1 below- for this population at this time. After the initial
discovery of three adults in July 2019, two more visits of the site
were made that summer. During one of those visits, 43 caterpillars were
observed, and during the other visit, 9 caterpillars and 3 chrysalides
were observed. Habitat metrics that, in combination with relative
population size estimates, enable estimates of resiliency have not yet
been collected. Therefore, in the resiliency discussion below, where we
refer to five populations instead of six, we are omitting the Guajataca
population. To date, the area still has not been reviewed. This
population was used to assess the redundancy and representation (see
below).
Because quantitative population size estimates are lacking, we
assessed the resiliency for five Puerto Rican harlequin butterfly
populations using habitat quality and estimates of relative population
size (see table 1, below) in our SSA report (Service 2019, entire). We
weighted a single population metric (relative population size) such
that it had equal influence on resiliency as four habitat metrics
combined, to yield a numerical score to classify population condition
as ``high,'' ``moderately high,'' ``moderate,'' ``moderately low,'' or
``low'' for five butterfly populations (see table 2, below). As such, a
population with the highest level of resiliency would garner a score of
24 and a population with the lowest level of resiliency would garner a
score of 8.

Table 1--Habitat and Population Metrics To Score Puerto Rican Harlequin Butterfly Resiliency
--------------------------------------------------------------------------------------------------------------------------------------------------------
Habitat metrics Population metric
------------------------------------------------------------------------------------------------ -------------------- Population
Vegetation clearing/ Other natural or Habitat score score
Habitat protection Connectivity pesticide use manmade factors Population size
--------------------------------------------------------------------------------------------------------------------------------------------------------
<34 percent protected........... Isolated Areas subjected to Subpopulations 1 point each; 4 0-5 adults and 4
subpopulations vegetation located in areas points total. <100 larvae
greater than 1 km clearing more vulnerable to observed per
apart; habitat (including use of stochastic events hectare.
between herbicides) and (e.g., fire,
populations highly use of pesticides severe drought,
disturbed. for mosquito hurricanes).
control or
agriculture.
34-66 percent protected......... Subpopulations Areas where Subpopulations in 2 points each; 8 6-20 adults and 8
within 1 km of vegetation areas with points total. 100-500 larvae
each other; clearing and use moderate observed per
habitat between of herbicides and vulnerability to hectare.
subpopulations pesticides occur stochastic events.
moderately rarely.
disturbed.
>66 percent protected........... Subpopulations Areas where Subpopulations 3 points each; 12 >20 adults and 12
within 1 km of vegetation located in areas points total. >500 larvae per
each other; clearing and use with lower hectare.
undisturbed of herbicides and vulnerability to
habitat between pesticides are not stochastic events.
subpopulations. expected.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 2--Current Population Condition and Resiliency Scores
------------------------------------------------------------------------
Resiliency score (habitat
Population condition metrics + population
metric)
------------------------------------------------------------------------
Low: Tallaboa (presumed extirpated)....... 8.
Moderately Low: Sus[uacute]a population... 11.
Moderate: IQC; R[iacute]o Abajo; 18; 15; unknown; 14.
Guajataca; R[iacute]o Encantado
populations.
Moderately High: Maricao population....... 19.
High: None................................ >21.
------------------------------------------------------------------------

Of the five Puerto Rican harlequin butterfly populations we
assessed for resiliency, one is in moderately high condition, three are
in moderate condition, and one is in moderately low condition. The
population with moderately high resiliency (Maricao Commonwealth
Forest) occurs in land managed for conservation, but in this forest the
species occurs at edges of trails and roads where vegetation is
frequently removed and herbicides applied. The population in IQC has
moderate resiliency because, although it occurs in a region that is
among the most heavily developed, it has the largest number of known
subpopulations and population size. The populations in R[iacute]o Abajo
Commonwealth Forest and the R[iacute]o Encantado area have moderate
resiliency because they occur partly in habitats managed for
conservation that are protected from development and other
anthropogenic activities, although both populations are small in size.
The Sus[uacute]a population has moderately low resiliency. While the
Sus[uacute]a Commonwealth Forest is managed for conservation, the
species occurs along, or at the edges of, trails where vegetation is
frequently removed and herbicides applied, and the population size is
very small. Averaging the resiliency of the five populations, we
estimated that species resiliency (rangewide) of the Puerto Rican
harlequin butterfly is currently moderate.
We assessed redundancy and representation based on the number and
spatial arrangement of populations. Current redundancy of the Puerto
Rican harlequin butterfly is low (and has likely always been). The
species is narrow-ranging, with all six populations (each less than 50
individuals) likely to incur similar effects of a catastrophic event
such as a hurricane or drought. In addition, with the exception of the
IQC and Maricao populations, the populations range in size from small
to very small (Service 2019, p. 73).
Puerto Rican harlequin butterfly representation is influenced by
the breadth of adaptive diversity possessed by the species and by
maintaining the evolutionary processes (for example, gene flow and
natural selection) that drive adaptation. Representation improves with
increased genetic and/or ecological diversity within and among
populations. Presently there is substantial uncertainty regarding
representation for this species, due to lack of knowledge on genetic
diversity,

[[Page 73660]]

adaptive potential and differences among the Puerto Rican harlequin
butterfly populations. Currently, representation appears to be moderate
to high because the Puerto Rican harlequin butterfly occurs in two
physiographic provinces and four life zones. Thus, the Puerto Rican
harlequin butterfly appears to have the capacity to adapt to different
landscapes as long as the fundamental needs for nesting (host plant)
and foraging are met. (Service 2019, pp. 75-76).

Threats

Threats to the Puerto Rican harlequin butterfly include habitat
loss and modification by development, mechanical clearing of
vegetation, use of pesticides (insecticides and herbicides), human-
induced fires, small population size, changing climate, and
insufficient enforcement of existing regulatory mechanisms. There is
evidence that the species has been collected for private entomology
collections and unauthorized investigations, but there is no indication
that private collecting is a widespread activity.
Habitat Modification and Fragmentation--Urban Development and
Agricultural Practices
Habitat loss caused by urban development and agricultural practices
is a primary factor influencing the decline of the Puerto Rican
harlequin butterfly, and it poses a continuing threat to the species'
viability (Service 2019, p.45). The species' small range may reflect a
remnant population of a once more widely distributed forest-dwelling
butterfly whose habitat was diminished as forest was converted for
other land uses in Puerto Rico (Service 2019, pp. 23-38). More than 90
percent of native forest in Puerto Rico had been cleared at one point
in time (Miller and Lugo 2009, p. 33). The loss or degradation of the
species' habitat continues in the present time and results from
conversion of native forest for agriculture or urbanization; increased
construction and use of highways and roads (vehicle traffic); and land
management regimes (vegetation clearance, grazing, and haying).
The IQC population faces significant threats from the existing and
imminent destruction, modification, and curtailment of its habitat,
especially loss of the host plant, prickly bush. Historically in the
IQC area, forests were converted to farms, pastures, or cropland.
Conversion of these forest areas to urban development, roads,
recreational parks, and golf courses has been the most significant
change in suitable habitat. Most of the suitable habitat for the
species, particularly in the municipality of Quebradillas, is
fragmented by residential and tourist development. In rural areas,
forest clearing to increase grassland for cattle grazing is a threat to
the IQC population (Service 2019, p. 45). Currently in the IQC,
occupied habitat is within an area classified as a ``Zone of Tourist
Interest'' (PRPB 2010, website data), which is an area identified as
having the potential to be developed to promote tourism due to its
natural features and historic value. In 2010, 11 residential
development projects were under evaluation around the species' habitat,
possibly affecting 72.6 ac (29.4 ha) in Quebradillas (PRPB 2010,
website data). By 2019, three houses had been constructed, and another
is under construction at Puente Blanco. While it is uncertain whether
these single homes will be constructed in the near future, landowners
have removed vegetation from the proposed project sites, affecting the
suitability of the habitat for the butterfly (Service 2019, p. 46).
While 99.7 percent of the land where the IQC population occurs is
privately owned, the other five populations occupy areas where
substantial portions are managed for conservation (see table 4, below,
under Final Critical Habitat Designation), ranging from 13 percent in
R[iacute]o Encantado to 77 percent in R[iacute]o Abajo. Development
adjacent to conservation lands in Puerto Rico is increasing, however.
For example, from 2000 to 2010, 90 percent of protected areas showed
increases in housing in surrounding lands (Service 2019, p. 47).
Housing has increased in the Northern Karst region: in 1980, there were
762,485 housing units, and in 2010, the number of units had increased
to 1,101,041 (PRPB 2013, p. 19). New housing and the development of
rural communities requires construction of additional infrastructure
(e.g., access roads, power and energy service, water service, and
communication, among others), compounding habitat loss and
fragmentation. Communications infrastructure for cellular phone and
related technologies has proliferated in Puerto Rico, including towers
for cellular communication, radio, television, military, and
governmental purposes. Construction and maintenance of tower
facilities, which includes clearing vegetation along security fences,
access roads, and under power lines, leads to habitat loss and direct
plant mortality. As such, these towers are a threat to plant species,
including the host plant prickly bush, that may occur on top of mogotes
(limestone hills) or mountaintops where towers often are situated.
Human-Induced Fire
In addition to land development, human-induced fires are a threat
to the Puerto Rican harlequin butterfly. Although fire is not a natural
event in Puerto Rico's subtropical dry or moist forests (Service 2019,
p. 49), which are the only forest types where the Puerto Rican
harlequin butterfly occurs, wildfires resulting from natural or
anthropogenic origin are growing in size and frequency across Puerto
Rico. In the Maricao Commonwealth Forest on February 25, 2005, a human-
induced fire (likely arson) burned more than 400 acres, with unknown
effects on the Puerto Rican harlequin butterfly population. In
Quebradillas, the species' habitat in the area where the largest
subpopulation occurs (Puente Blanco) is affected by fires associated
with illicit garbage dumps. In the Sus[uacute]a Commonwealth Forest, a
garbage dump fire recently burned approximately 25 square meters (82
square feet) of occupied butterfly habitat. This increase in fires
destroys and further limits the availability of habitat for the
butterfly. Depending on the scale of the fires and the size of the
population where the fires happen, deaths of significant numbers of the
butterfly population may occur. For example, if a fire damages a patch
of forest such that less than 1.6 square kilometers (0.6 square miles)
remains, that forest patch will no longer be large enough to sustain a
viable subpopulation of the butterfly. In the Sus[uacute]a fire,
although only 25 square meters (269 square feet) of forest were
destroyed, any killing of individuals would reduce the likelihood of
sustained viability of the very small Sus[uacute]a population. In other
areas with a larger population, such as IQC, a similarly small fire
would not have a significant impact on viability (Service 2019, p. 50).
Pesticides, Herbicides, and Other Mechanisms of Vegetation Control
Regardless of the method, efforts to clear vegetation or to
eliminate pests are a significant threat to the Puerto Rican harlequin
butterfly. Herbicides are used by conservation agencies, public
agencies, and private organizations to control vegetation in an array
of areas. The use of herbicides is a current threat to the Puerto Rican
harlequin butterfly and prickly bush, which is found on the edges of
roads and open areas. Herbicides are frequently used to control woody
vegetation and weeds along access roads and on private properties.
Mechanical removal of

[[Page 73661]]

vegetation also impacts the Puerto Rican harlequin butterfly. Even in
areas used for recreation, prickly bush is trimmed or completely
removed along trails and in picnic areas. Homeowners often clear
vegetation to have unobstructed views of the landscape. In addition to
eliminating host and nectar plants, vegetation removal and road
construction can elevate local temperatures (see ``Recent and Current
Climate'' below, for more information on the potential impacts of
elevated temperatures).
Although prickly bush is a commonly occurring plant in Puerto Rico,
cutting down the plant or killing the plant with herbicides will result
in death of eggs or caterpillars that are on it. Additionally, clearing
prickly bush reduces reproductive output because it reduces the number
of viable sites for egg laying, and removing other plant species that
are nectar sources likely increases stress on adult butterflies.
Pesticides, which include insecticides and herbicides, are commonly
used throughout the range of the Puerto Rican harlequin butterfly, on
crop fields, along public roads, and on private properties to control
animal and plant pests (Service 2019, p. 52). Puerto Rico also has a
long history of using pesticides, mostly insecticides, for mosquito
control in and around urban areas. Fumigation programs are implemented
by local government authorities to control mosquito-borne diseases, but
pesticide use guidelines have not been developed for application in
areas where the Puerto Rican harlequin butterfly occurs, and toxicity
thresholds for the species are unknown (Service 2019, p. 51). The
toxicological effects of pesticides to non-target butterfly species
have been documented within the families Nymphalidae (which includes
the Puerto Rican harlequin butterfly), Lycaenidae, Papilionidae,
Hesperiidae, and Pieridae (Davis et al. 1991, entire; Eliazar and Emmel
1991, entire; Salvato 2001, entire; Bargar 2012, entire; Hoang et al.
2011, entire; Hoang and Rand 2015; and Mul[eacute] et al. 2017,
entire).
Recent and Current Climate
The 2018 U.S. Global Change Research Program (USGCRP) reported that
the impacts of climate change are already influencing the environment
through more frequent and more intense extreme weather and climate-
related events, as well as changes in average climate conditions.
Globally, numerous long-term climate changes have been observed,
including changes in arctic temperatures and ice, and widespread
changes in precipitation amounts, ocean salinity, wind patterns, and
aspects of extreme weather, including droughts, heavy precipitation,
heat waves, and the intensity of tropical cyclones (Service 2019, p.
54).
Although we do not have information showing Puerto Rican harlequin
butterflies have been harmed due to elevated high temperatures, species
such as the Puerto Rican harlequin butterfly, which are dependent on
specialized habitat types, are limited in distribution, or have become
restricted in their range, are most susceptible to the impacts of
climate change. As indicated by studies on other butterflies in the
family Nymphalidae (e.g., monarch butterfly (Danaus plexippus)),
temperature likely has a significant influence on adult and larval
metabolism, growth rate, and metamorphosis, and it may affect seasonal
colonization and migrations (Service 2019, pp. 54-55). These same
effects may occur to the Puerto Rican harlequin butterfly and the
Puerto Rican monarch subspecies (Danaus plexippus portoricensis), which
are members of this same family. Exposure to high temperature may cause
dehydration, which is a threat to butterflies because of their large
surface-to-volume ratio (Service 2019, p. 55). Day-fliers, such as the
Puerto Rican harlequin butterfly, likely have a high need for water
because they are active during the warmest time of the day, from 9 a.m.
to 4 p.m. (Pacheco 2019, pers. obs.). Temperature data from the Puerto
Rican harlequin butterfly's range suggest the species may be adapted to
average daily maximum temperatures ranging from 28 to 32 degrees
Celsius ([deg]C) (82 to 90 degrees Fahrenheit ([deg]F)), but maximum
temperatures are predicted to increase to 89-98 degrees Fahrenheit by
2045 (Service 2019, p. 56).
Cumulative Effects
The Puerto Rican harlequin butterfly's rangewide population
consists of six populations containing one or more subpopulations.
Current and ongoing threats, including human-induced fires, application
of pesticides (insecticides and herbicides), and land development, have
acted together at the rangewide scale by diminishing habitat quality or
causing habitat loss. In turn, these impacts on habitat reduce the size
of populations and subpopulations as well as their connectivity,
reducing population resilience because small populations are at risk of
loss of genetic diversity (a measure adaptive capacity) and are more
likely to become extirpated due to a single stochastic event in
comparison to larger populations. All six populations are affected to
varying degrees by the current threats, although those populations that
have large portions managed for conservation (R[iacute]o Abajo,
Maricao, and Sus[uacute]a) are less affected by land development
threats. Future climate change is likely to combine with and exacerbate
the negative effects of all ongoing threats rangewide.

Future Conditions

In our SSA, we used the same habitat and population metrics to
project future resiliency of the five populations that were known at
the time the SSA was completed (Service 2019, pp. 89-105). We chose 25
years as the time frame for the Puerto Rican harlequin butterfly future
conditions analysis because this time frame includes at least 25
generations, thus allowing adequate time to forecast trends in threats,
populations, and habitat conditions and we can reasonably determine
that both the future threats and species' responses to those threats
are likely. We projected the future changes in habitat based on climate
projections and by extrapolating land development trends (e.g., housing
and urbanization) to 2045, and we estimated changes in population
demographics based on the anticipated changes to the condition of the
habitat. Unlike in our analysis of current condition, relative
population size could not be directly assessed. The habitat metrics are
the drivers that may promote changes in future population (unless the
current population size is so small that extirpation risk of a single
stochastic event is high). Therefore, because there was more certainty
in projecting habitat changes than demographic changes, we weighted
habitat to have twice as much influence as population on resiliency
scores (Service 2019, pp. 89-105).
We projected population resiliency based on three plausible
scenarios: worst case, best case, and most likely. We selected these
scenarios to match the most recent climate change scenarios described
for Puerto Rico, and we focused on temperature and precipitation
projections, which are important environmental variables for Puerto
Rican harlequin butterfly viability (Service 2019, pp. 76-86). The
models for Puerto Rico used the mid-high (A2), mid-low (A1B), and low
(B1) Intergovernmental Panel on Climate Change (IPCC) global emissions
scenarios, which were precursors to the current IPCC scenarios and
encompass ``representative concentration pathways'' (RCPs) 4.5 and 8.5.
Based on our future climate projections, temperatures are expected to
increase by 2.8 to 3.3 [deg]C (5.04 to 5.94 [deg]F) (best case
scenario) to 4.6 to 5.5 [deg]C (8.28 to 9.9 [deg]F)

[[Page 73662]]

(worst case scenario). In the most likely scenario, temperatures would
increase 3.9 to 4.6 [deg]C (7.02 to 8.28 [deg]F), resulting in
temperatures ranging from approximately 31 [deg]C (88 [deg]F) to 36
[deg]C (97 [deg]F) for all known areas with Puerto Rican harlequin
butterfly populations by 2045. This projected increase in maximum
temperatures is significantly greater than the current 28 to 32 [deg]C
(82 to 90 [deg]F) maximum temperatures to which the butterfly is
adapted.
Together with temperature increases, the Caribbean is expected to
get more frequent and more severe droughts from reduced precipitation
and to have an increased evapotranspiration ratio. Although overall
precipitation is expected to decrease, the amount of precipitation
produced during hurricane events is expected to increase. Climate
models consistently project that significant drying in the U.S.
Caribbean region will occur by the middle of the century. The
reductions in annual precipitation and increases in drying are expected
to cause shifts in several life zones in Puerto Rico, with potential
loss of subtropical rainforest, moist forest and wet forest, and the
appearance of tropical dry forest and very dry forest during this
century (Service 2019, pp. 82-86). Such shifts in life zones would
likely further reduce the range of the Puerto Rican harlequin
butterfly.
To forecast land development, we used the most recent trend data
(2000-2010) for housing and human population growth (Castro-Prieto et
al. 2017, pp. 477-479). For the region where each of the five butterfly
populations occurs, we projected development trends at current rates,
half of current rates, and no growth (representing the worst case, most
likely, and best case scenarios, respectively).
Resiliency metric scoring for each scenario and population is
presented in our SSA report (Service 2019, pp. 86-90). In summary,
three populations (R[iacute]o Abajo, R[iacute]o Encantado, and
Sus[uacute]a) are projected to become extirpated in the foreseeable
future under both the worst case and most likely scenarios (see table
3, below). Under the best case scenario, the condition of the Maricao
population decreases slightly, from moderately high to moderate, while
the condition of the other four populations is unchanged. In
Sus[uacute]a, declines in habitat and the small size of the population
increase the likelihood of future extirpation. Given the currently very
small populations in R[iacute]o Abajo and R[iacute]o Encantado, even
small declines in habitat condition are likely to result in extirpation
under the worst case and most likely scenarios.

Table 3--Summary of Puerto Rican Harlequin Butterfly Resiliency Under Three Future Scenarios
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percentage of
Population Current Worst case scenario Most likely scenario Best case scenario total
population \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
IQC........................... Moderate.................. Low................... Low...................... Moderate................. 53
R[iacute]o Abajo.............. Moderate.................. Extirpated............ Extirpated............... Moderate................. < 5
R[iacute]o Encantado.......... Moderate.................. Extirpated............ Extirpated............... Moderate................. < 5
Maricao....................... Moderately High........... Low................... Moderately Low........... Moderate................. 21
Sus[uacute]a.................. Moderately Low............ Extirpated............ Extirpated............... Moderately Low........... 16
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Current estimate, based on counts of adults (Barber 2019, entire).

According to our most likely and worst case scenarios, all areas
and life zones that currently harbor Puerto Rican harlequin butterfly
populations are expected to become drier and warmer, with some (i.e.,
R[iacute]o Abajo and R[iacute]o Encantado) progressing from tropical
moist forest to tropical dry forest. Under these scenarios, and with
only two remaining populations, the species would suffer a substantial
decline in representation (with or without survival of the recently
discovered Guajataca population, for which there is insufficient
information to forecast its resiliency). Given the predicted
extirpation of most (three of five) populations under our most likely
and worst case scenarios, population redundancy will most likely be
reduced in the future. Moreover, the only remaining populations in IQC
and Maricao, which are predicted to have low and moderately low
resiliency at best under these two scenarios, will most likely become
smaller, more fragmented, and subject to greater environmental stress.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. Our assessment of the
current and future conditions is iterative and encompasses and
incorporates the threats individually and cumulatively because it
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.

Conservation Efforts and Regulatory Mechanisms

Puerto Rican harlequin butterfly conservation efforts have been
directed towards land acquisition and conservation easements by
government and nongovernment organizations (PRPB 2013, p. 19). In
recent years, protection and management of the habitat that the Puerto
Rican harlequin butterfly shares with other federally and Commonwealth
listed species (e.g., the endangered Puerto Rican parrot (Amazona
vittata), threatened elfin-woods warbler (Setophaga angelae), and
several plants, among others) has become a high priority. For example,
the Maricao Commonwealth Forest comprises 3,996.2 hectares (ha)
(9,874.8 acres (ac)) of public land managed for conservation (Caribbean
LLC 2016, website data) that harbors habitat for the Puerto Rican
harlequin butterfly. Moreover, in 2000, the Puerto Rico Department of
Natural and Environmental Resources (DNER) acquired, through the U.S.
Forest Service (USFS) Forest Legacy Program, a parcel of land of 107 ha
(264.4 ac), locally known as ``Finca Busig[oacute],'' adjacent to the
Maricao Commonwealth Forest. This parcel is located approximately 1 km
(0.6 mi) from currently occupied Puerto Rican harlequin butterfly
habitat and is managed for conservation (Caribbean LLC 2016, website
data). In addition, over 64,683.4 ha (159,836.4 ac) of native forest
along the northern karst belt are

[[Page 73663]]

covered by Puerto Rico Law No. 292 of August 21, 1999 (known as Act for
the Protection and Preservation of Puerto Rico's Karst Region), which
provides protection of that habitat.
The DNER designated the Puerto Rican harlequin butterfly as
critically endangered under the New Wildlife Act of Puerto Rico (Law
No. 241 of August 15, 1999) and Regulation 6766 (February 11, 2004).
Article 2 of Regulation 6766 includes all prohibitions and states that
the designation as ``critically endangered'' prohibits any person from
taking the species; to ``take'' includes to harm, possess, transport,
destroy, import, or export individuals, eggs, or juveniles without
previous authorization from the Secretary of the DNER. The DNER has not
designated critical habitat for the species under Regulation 6766, but
Law No. 241 prohibits modification of any natural habitat without a
permit from the DNER Secretary. While these laws and regulations
provide some protections, the species' habitat continues to be
modified, destroyed, or fragmented by urban development and vegetation
clearing. Because the host plant is considered a common species
associated with edges of forested lands, it is not directly protected
by Law No. 241 or Regulation 6766.

Determination of Puerto Rican Harlequin Butterfly's Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines ``endangered species'' as a species
in danger of extinction throughout all or a significant portion of its
range, and ``threatened species'' as a species likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range. The Act requires that we determine
whether a species meets the definition of ``endangered species'' or
``threatened species'' because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence.

Status Throughout All of Its Range

After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we determined that the species' distribution and abundance has
been reduced across its range, as demonstrated by the extirpation of
one of seven known populations (Tallaboa). In addition, the best
scientific and commercial data available indicate that the species'
range and abundance has been reduced because many areas that were once
suitable habitat, and therefore likely to have harbored populations,
have been developed and altered (deforested and host plant removed or
reduced), such that they are no longer habitable by the species.
The condition of one population, discovered approximately one year
ago, has not been assessed. Of the other five populations, one
currently has moderately high resiliency, three have moderate
resiliency, and one has moderately low resiliency. Although the
species' range is naturally narrow, the six populations are distributed
in two physiographic provinces and four life zones. Given the distance
between the six populations and limited dispersal ability of the
species, there is virtually no interpopulation connectivity. Three of
the five populations are single populations, without multiple
subpopulations. The other two populations have 3 subpopulations
(R[iacute]o Encantado) and 13 subpopulations (IQC) that are connected
to their closest neighboring subpopulations.
Current and ongoing threats from habitat degradation or loss
(Factor A), as well as application of pesticides (insecticides and
herbicides), human-induced fires, and climate change (Factor E),
contribute to the fragmentation and isolation of populations. Existing
regulatory mechanisms (Factor D), provide some protections to the
species, but the threats of habitat degradation or loss, the
application of pesticides, and human-induced fires continue to
negatively impact the viability of the Puerto Rican harlequin butterfly
(Service 2019, pp. 59-60).
Neither Factor B (overutilization for commercial, recreational,
scientific, or educational purposes) nor Factor C (disease or
predation) appears to be a significant threat to the butterfly.
Regarding Factor B, an undetermined number of Puerto Rican harlequin
butterflies have been collected for scientific purposes and deposited
in universities and private collections (Service 2019, p. 58). However,
at present, few researchers are working with the species, and its
collection is regulated by the DNER. There is also evidence that the
species has been collected for private entomology collections and
unauthorized investigations, but there is no indication that this is a
widespread activity. Therefore, effects on the species due to
collection for commercial, recreational, scientific, or educational
purposes (Factor B) likely are minimal. Similarly, spiders, ants,
lizards, and birds have been observed preying on the Puerto Rican
harlequin butterfly, but there are no data indicating predation is a
species-level threat affecting the overall viability of the butterfly
(Service 2019, p. 59). Likewise, there is no information indicating
impacts on the species from disease.
As noted previously, six populations occur in the presence of
current threats and are dispersed across four life zones and two
physiographic regions. Of the five populations assessed in the SSA
report, three have moderate resiliency and one has moderately high
resiliency. The resiliency, redundancy, and representation of the
species are sufficient to sustain populations if stochastic or
catastrophic events occur within its range. It is unlikely that all of
the ``moderate'' and ``moderately high'' resiliency populations would
simultaneously become extirpated under a single catastrophic event.
Thus, after assessing the best available information, we conclude that
the Puerto Rican harlequin butterfly is not currently in danger of
extinction throughout its range. We, therefore, proceed with
determining whether the Puerto Rican harlequin butterfly is a
threatened species--likely to become endangered within the foreseeable
future--throughout all of its range.
We determined foreseeable future for the Puerto Rican harlequin
butterfly to be 25 years because this time frame includes at least 25
generations, thus allowing adequate time to forecast trends in threats,
populations, and habitat conditions. We projected the future changes in
habitat based on climate projections and by extrapolating land
development trends (e.g., housing and urbanization) to 2045, and we
estimated changes in population demographics based on the anticipated
changes to the condition of the habitat. Over this time frame, we find
that our predictions for both the threats to this species and the
species' response to these threats are sufficiently reliable.
The threats currently acting on the species include habitat loss
and degradation, in addition to pesticide use and human-induced fires,
all of which contribute to fragmentation and isolation of populations.
The best available information indicates that current threats will
continue, and the magnitude of the climate change threat will increase
in the foreseeable future.

[[Page 73664]]

We anticipate that climate change will result in increased daily high
temperatures, decreases in annual precipitation, and shifts to drier
life zones, which, when coupled with the continuation of current
threats, will reduce habitat, further fragment populations, and likely
cause extirpations. Two of three of our plausible future scenarios
project the extirpation of three of the five assessed populations and a
decline in resiliency of the remaining two populations. Given the
outcomes projected by these two scenarios, we expect the two remaining
reduced populations would be at high risk of extirpation due to
stochastic events. Thus, we conclude that the Puerto Rican harlequin
butterfly is likely to become in danger of extinction within the
foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the aspect of the Final
Policy on Interpretation of the Phrase ``Significant Portion of Its
Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (Final Policy) (79 FR 37578; July
1, 2014) that provided that the Service does not undertake an analysis
of significant portions of a species' range if the species warrants
listing as threatened throughout all of its range. Therefore, we
proceed to evaluating whether the species is endangered in a
significant portion of its range--that is, whether there is any portion
of the species' range for which both (1) the portion is significant;
and (2) the species is in danger of extinction in that portion.
Depending on the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for the Puerto Rican harlequin butterfly, we
choose to address the significance question first. After evaluating
whether any portions of the species' range are significant, we address
the status question, considering information pertaining to the
geographic distribution of both the species and the threats that the
species faces to determine whether the species is endangered in any of
those significant portions of the range.
The Service's most recent definition of ``significant'' within
agency policy guidance has been invalidated by court order (see Desert
Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011,
1070-74 (N.D. Cal. 2018)). In undertaking this analysis for the Puerto
Rican harlequin butterfly, we considered whether any portion of the
species' range may be significant based on its biological importance to
the overall viability of the Puerto Rican harlequin butterfly.
Throughout the range of the Puerto Rican harlequin butterfly, there are
two portions that may be significant: the Northern Karst Region and the
West-central Volcanic-serpentine Region. The two regions may be
significant because, within each one, the physiography and life zones
are unique, and the populations contained in each region may harbor
adaptations specific to their regional environment. We, therefore,
consider information pertaining to the geographic distribution of the
species and of the threats to the species in both of those potentially
significant portions of its range to determine whether the species is
endangered in either portion.
The statutory difference between an endangered species and a
threatened species is the time horizon in which the species becomes in
danger of extinction; an endangered species is in danger of extinction
now while a threatened species is not in danger of extinction now but
is likely to become so in the foreseeable future. The Puerto Rican
harlequin butterfly is not in danger of extinction now in either of the
potentially significant portions we identified. The threat of
development and habitat degradation or loss is concentrated in the
Northern Karst region, particularly in the areas of Isabela,
Quebradillas, and Camuy (IQC) (see Threats, above). Although there is a
concentration of threats in the IQC, it contains the greatest number of
subpopulations and the largest population size among the six Puerto
Rican harlequin butterfly populations, so it has moderate resiliency to
environmental disturbance. The remainder of the Northern Karst region
(portion of the range) includes the R[iacute]o Abajo and R[iacute]o
Encantado areas, each with a moderately resilient population, and the
Guajataca population, whose status is currently undetermined. Given the
known current status (moderate resiliency) of the populations in three
occupied areas in the Northern Karst portion of the range (IQC,
R[iacute]o Abajo, and R[iacute]o Encantado), plus an additional area
with a population of undetermined status (Guajataca), the species in
this portion is not currently in danger of extinction. Current
redundancy of the Puerto Rican harlequin butterfly is low because the
species is narrow ranging. In addition, with the exception of the IQC
and Maricao populations, the populations range in size from small to
very small. Data to assess genetic diversity and the adaptive capacity
it may confer are lacking. However, representation appears to be
moderate to high because the butterfly occurs in two physiographic
provinces and four life zones.
The species also is not currently in danger of extinction in the
West-central Volcanic-serpentine region, because the condition of the
population in this portion of the range is sufficient to maintain
viability in the presence of ongoing threats. As a measure of
redundancy, there are five subpopulations in this region, three in the
Maricao population and two in the Susua population. Resiliency of the
Maricao population is moderately high and is low in the Susua
population. There are no genetic data to assess adaptive capacity or
representation within the West-central Volcanic-serpentine region.
However, based on its small size, genetic diversity in the Susua
population is likely low, whereas in the large Maricao population (more
than 500 larvae and 20 imagoes observed), genetic diversity is more
likely sustained across generations. Additional factors reducing the
current or near-term likelihood of extirpation in the West-central
Volcanic-serpentine region are: (1) the occurrence of the species on
lands with large portions managed for conservation, which are occupied
by both populations, and (2) the absence of intense development (which
would itself present a concentration of threats) like that occurring in
the Northern Karst region.
Thus, there are no portions of the species' range where the species
has a different status from its rangewide status, as these two portions
constitute the entire range of the species. Therefore, no portion of
the species' range provides a basis for determining that the species is
in danger of extinction in a significant portion of its range.
Therefore, we determine that the Puerto Rican harlequin butterfly is
not in danger of extinction now in any

[[Page 73665]]

portion of its range, but that the species is likely to become in
danger of extinction within the foreseeable future throughout all of
its range. This analysis is consistent with the courts' holdings in
Desert Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d
1011, 1070-74 (N.D. Cal. 2018) and Center for Biological Diversity v.
Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).

Determination of Status

Our review of the best available scientific and commercial
information indicates that the Puerto Rican harlequin butterfly meets
the Act's definition of a threatened species. Therefore, we are listing
the Puerto Rican harlequin butterfly as a threatened species in
accordance with sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where--as secure, self-sustaining, and functioning components of
their ecosystems--they no longer meet the definition of an endangered
species or a threatened species.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public subsequent to a final listing determination.
The recovery outline guides the immediate implementation of urgent
recovery actions and describes the process to be used to develop a
recovery plan. Revisions of the plan may be done to address continuing
or new threats to the species, as new substantive information becomes
available. The recovery plan also identifies recovery criteria for
review of when a species may be ready for reclassification from
endangered to threatened (``downlisting'') or removal from protected
status (``delisting''), and methods for monitoring recovery progress.
Recovery plans also establish a framework for agencies to coordinate
their recovery efforts and provide estimates of the cost of
implementing recovery tasks. Recovery teams (composed of species
experts, Federal and State agencies, nongovernmental organizations, and
stakeholders) are often established to develop recovery plans. When
completed, the recovery outline, draft recovery plan, and the final
recovery plan will be available on our website (https://www.fws.gov/program/endangered-species).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Commonwealths, Tribes, nongovernmental organizations,
businesses, and private landowners. Examples of recovery actions
include habitat restoration (e.g., restoration of native vegetation),
research, captive propagation and reintroduction, and outreach and
education. The recovery of many listed species cannot be accomplished
solely on Federal lands because their range may occur primarily or
solely on non-Federal lands. To achieve recovery of these species
requires cooperative conservation efforts on private, State, and Tribal
lands.
Following publication of this rule, funding for recovery actions
will be available from a variety of sources, including Federal budgets,
State programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, Puerto Rico will be eligible for
Federal funds to implement management actions that promote the
protection or recovery of the Puerto Rican harlequin butterfly.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/service/financial-assistance.
Please let us know if you are interested in participating in
recovery efforts for this species. Additionally, we invite you to
submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(4)
of the Act requires Federal agencies to confer with the Service on any
action that is likely to jeopardize the continued existence of any
endangered or threatened species or destroy or adversely modify its
critical habitat. If a Federal action may affect a listed species or
its critical habitat, the responsible Federal agency must enter into
consultation with the Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph may include, but are not limited to, management and any other
landscape-altering activities funded or authorized by the U.S. Fish and
Wildlife Service, Natural Resources Conservation Service, Animal and
Plant Health Inspection Service, Federal Highway Administration, and
Federal Communications Commission.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a listing on
proposed and ongoing activities within the range of a listed species.
The discussion below regarding protective regulations under section
4(d) of the Act complies with our policy.

II. Final Rule Issued Under Section 4(d) of the Act

Background

Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean the use of all methods and
procedures which are necessary to bring

[[Page 73666]]

any endangered species or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary.
Additionally, the second sentence of section 4(d) of the Act states
that the Secretary may by regulation prohibit with respect to any
threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence grants particularly broad
discretion to the Service when adopting the prohibitions under section
9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a particular species. For example, courts have upheld
rules developed under section 4(d) as a valid exercise of agency
authority where they prohibited take of threatened wildlife, or include
a limited taking prohibition (see Alsea Valley Alliance v.
Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 U.S.
Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules
that do not address all of the threats a species faces (see State of
Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the
legislative history when the Act was initially enacted, ``once an
animal is on the threatened list, the Secretary has an almost infinite
number of options available to [her] with regard to the permitted
activities for those species. [She] may, for example, permit taking,
but not importation of such species, or [she] may choose to forbid both
taking and importation but allow the transportation of such species''
(H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
Exercising this authority under section 4(d), we have developed a
rule that is designed to address the Puerto Rican harlequin butterfly's
specific threats and conservation needs. Although the statute does not
require us to make a ``necessary and advisable'' finding with respect
to the adoption of specific prohibitions under section 9, we find that
this rule as a whole satisfies the requirement in section 4(d) of the
Act to issue regulations deemed necessary and advisable to provide for
the conservation of the Puerto Rican harlequin butterfly. As discussed
above under Summary of Biological Status and Threats, we have concluded
that the Puerto Rican harlequin butterfly is likely to become in danger
of extinction within the foreseeable future primarily due to habitat
modification and fragmentation caused by urban development and
agriculture, human-induced fire, pesticide use (including insecticides
and herbicides), and climate change. The provisions of this 4(d) rule
will promote conservation of the Puerto Rican harlequin butterfly by
encouraging management of the landscape in ways that meet both land
management considerations and the species' conservation needs. The
provisions of this rule are one of many tools that the Service will use
to promote the conservation of the Puerto Rican harlequin butterfly.
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). 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 carried out by a Federal agency--do not require
section 7 consultation.
This obligation does not change in any way for a threatened species
with a species-specific 4(d) rule. Actions that result in a
determination by a Federal agency of ``not likely to adversely affect''
continue to require the Service's written concurrence and actions that
are ``likely to adversely affect'' a species require formal
consultation and the formulation of a biological opinion.

Provisions of the 4(d) Rule

This 4(d) rule will provide for the conservation of the Puerto
Rican harlequin butterfly by prohibiting the following activities,
except as otherwise authorized or permitted: importing or exporting;
take; possession and other acts with unlawfully taken specimens;
delivering, receiving, transporting, or shipping in interstate or
foreign commerce in the course of commercial activity; or selling or
offering for sale in interstate or foreign commerce.
Threats to the species are noted above and described in detail
under Summary of Biological Status and Threats. These threats are
expected to affect the species in the foreseeable future by fragmenting
and reducing habitat, the critical component of which is prickly bush,
the sole host plant species for egg laying and larval feeding.
A range of activities has the potential to affect the Puerto Rican
harlequin butterfly. In particular, activities that remove the host
plant or clear forested land can harm or kill Puerto Rican harlequin
butterflies, reducing population size and viability. There is evidence
that the butterfly has been taken for private collections (Service
2019, p. 45), although there is no indication that this is a widespread
activity or is a major threat. Therefore, regulating take associated
with activities that remove host plant or forested habitat--including
construction or maintenance of roads or trails, buildings, utility
corridors, or communications towers--will help preserve remaining
populations by slowing the butterfly's rate of decline, and decrease
synergistic, negative effects from other threats.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
incidental and intentional take will help the species maintain
population size and resiliency.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued
for the following purposes: For scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act.
There are also certain statutory exceptions from the prohibitions,
which

[[Page 73667]]

are found in sections 9 and 10 of the Act, and other standard
exceptions from the prohibitions, which are found in our regulations at
50 CFR part 17, subparts C and D. Below, we describe these exceptions
to the prohibitions for the Puerto Rican harlequin butterfly.
Under this 4(d) rule, take of the Puerto Rican harlequin butterfly
is not prohibited in the following instances:
Take is authorized by a permit issued in accordance with
50 CFR 17.32;
Take results from actions of an employee or agent of the
Service or of a State conservation agency that is operating under a
conservation program pursuant to the terms of a cooperative agreement
with the Service;
Take is in defense of human life; and
Take results from actions taken by representatives of the
Service or of a State conservation agency to aid a sick specimen or to
dispose of, salvage, or remove a dead specimen that is reported to the
Office of Law Enforcement.
We also allow Federal and State law enforcement officers to
possess, deliver, carry, transport, or ship any Puerto Rican harlequin
butterflies taken in violation of the Act as necessary in performing
their official duties.
In part, these exceptions to the prohibitions recognize the special
and unique relationship with our Commonwealth natural resource agency
partners in contributing to conservation of listed species.
Commonwealth agencies often possess scientific data and valuable
expertise on the status and distribution of endangered, threatened, and
candidate species of wildlife and plants. Commonwealth agencies,
because of their authorities and their close working relationships with
local governments and landowners, are in a unique position to assist
the Service in implementing all aspects of the Act. In this regard,
section 6 of the Act provides that the Service shall cooperate to the
maximum extent practicable with the Commonwealth in carrying out
programs authorized by the Act. Therefore, any qualified employee or
agent of a Commonwealth conservation agency that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
will be able to conduct activities designed to conserve the Puerto
Rican harlequin butterfly that may result in otherwise prohibited take
for wildlife without additional authorization.
In addition to the statutory and regulatory exceptions to the
prohibitions described above, certain species-specific exceptions to
the prohibitions provide for the conservation of the Puerto Rican
harlequin butterfly. Under this 4(d) rule, take of the Puerto Rican
harlequin butterfly that is incidental to the following otherwise
lawful activities is not prohibited:
(1) Normal agricultural practices, including pesticide use, which
are carried out in accordance with any existing regulations, permit and
label requirements, and best management practices, as long as the
practices do not include: (a) clearing or disturbing forest or prickly
bush to create or expand agricultural areas, or (b) applying pesticides
in or contiguous to habitat known to be occupied by Puerto Rican
harlequin butterfly.
(2) Normal residential and urban landscape and lawn maintenance
activities, such as mowing, weeding, edging, and fertilizing.
(3) Maintenance of recreational trails in Commonwealth Forests by
mechanically clearing vegetation, only when approved by or under the
auspices of the DNER, or conducted on lands established by private
organizations or individuals solely for conservation or recreation.
(4) Habitat management or restoration activities expected to
provide a benefit to Puerto Rican harlequin butterfly or other
sensitive species, including removal of nonnative, invasive plants.
These activities must be coordinated with and reported to the Service
in writing and approved the first time an individual or agency
undertakes them.
(5) Projects requiring removal of the host plant to access and
remove illicit garbage dumps that are potential sources of
intentionally set fires, provided such projects are conducted in
coordination with and reported to the Service.
(6) Fruit fly trapping by the U.S. Department of Agriculture's
Animal and Plant Health Inspection Service, provided trapping
activities do not disturb the host plant.
These activities, on rare occasion, may result in a limited amount
of take. For example, a branch of prickly bush with butterfly eggs may
be trimmed off the plant during lawn maintenance, or a plant with
caterpillars on it might get trampled during habitat restoration. While
such actions would affect individuals of the species, effects to
populations would be minimal. Additionally, habitat restoration
activities and garbage dump removal, which may cause limited take,
would contribute to conservation of Puerto Rican harlequin butterfly
populations by expanding habitat suitable for the species.
Nothing in this 4(d) rule will change in any way the recovery
planning provisions of section 4(f) of the Act, the consultation
requirements under section 7 of the Act, or the ability of the Service
to enter into partnerships for the management and protection of the
Puerto Rican harlequin butterfly. However, interagency cooperation may
be further streamlined through planned programmatic consultations for
the species between Federal agencies and the Service, where
appropriate.

III. Critical Habitat

Background

Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, we designate a species' critical habitat
concurrently with listing the species. None of the situations
identified at 50 CFR 424.12(a) for when designation of critical habitat
would be not prudent or not determinable is present. We therefore are
designating critical habitat for the Puerto Rican harlequin butterfly
concurrently with listing it.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited

[[Page 73668]]

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 requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not 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 the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
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 we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and other information developed during
the listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; 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; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in the 4(d) rule. Federally
funded or permitted projects affecting listed species outside their
designated critical habitat areas may still result in jeopardy findings
in some cases. These protections and conservation tools will continue
to contribute to recovery of this species. 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 (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.

Physical or Biological Features Essential to the Conservation of the
Species

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkali soil
for seed germination, protective cover for migration, or susceptibility
to flooding or fire that maintains necessary early-successional habitat
characteristics. Biological features might include prey species, forage
grasses, specific kinds or ages of trees for roosting or nesting,
symbiotic fungi, or a particular level of nonnative species consistent
with conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount

[[Page 73669]]

of a characteristic essential to support the life history of the
species.
In considering whether features are essential to the conservation
of the species, the Service may consider an appropriate quality,
quantity, and spatial and temporal arrangement of habitat
characteristics in the context of the life-history needs, condition,
and status of the species. These characteristics 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, or rearing (or development) of offspring; and habitats
that are protected from disturbance.
To identify the specific physical or biological needs of the Puerto
Rican harlequin butterfly, we evaluated current conditions at locations
where the species exists and best information available on the species'
biology. We derive the physical features required for the species from
the general description of the ecological regions where the species
occurs, models for climatic boundaries that characterize the areas
where the species occurs, and the forest types inhabited by the species
(Service 2019, entire). A crucial biological feature for the Puerto
Rican harlequin butterfly is the host plant (prickly bush), which is
the only species upon which it lays its eggs and then feeds on as a
caterpillar (Service 2019, pp. 17-20).
As described earlier in this document (see Summary of Biological
Status and Threats), the Puerto Rican harlequin butterfly is known from
four populations in the Northern Karst region and two populations in
the West-central Volcanic-serpentine region of Puerto Rico. These two
ecological regions are delineated by their geology. Soils in the
Northern Karst region are derived from limestone, and soils in the
West-central Volcanic serpentine region are derived from serpentine
rock (Service 2019, p. 54). Physical properties specific to each
substrate foster the development of unique natural areas that harbor
distinctive forest types and wildlife habitat, which, in turn, promote
high levels of biological diversity (Service 2019, pp. 25-31).
Across these two regions, the Puerto Rican harlequin butterfly
inhabits four life zones: (1) Subtropical moist forest on limestone-
derived soil; (2) subtropical wet forest on limestone-derived soil; (3)
subtropical wet forest on serpentine-derived soil; and (4) subtropical
moist forest on serpentine-derived soil. These life zones are
distinguished by mean annual precipitation and mean annual temperature
(Service 2019, pp. 86-87). Regardless of life zone and forest type, the
patches of native forest that the Puerto Rican harlequin butterfly
occupies are characterized by canopy cover ranging from 50 to 85
percent, an average canopy height of 6 meters (m) (20 feet (ft)), and
the host plant covering more than 30 percent of the understory (Service
2019, p. 119).
Adults of the Puerto Rican harlequin butterfly have been observed
feeding on flowers of several native trees (see Summary of Biological
Status and Threats, above, and 76 FR 31282, May 31, 2011). All the
sites where the Puerto Rican harlequin butterfly occurs have a close
(within a 1-km (0.6-mi) radius) water source (e.g., creek, river, pond,
puddle, etc.). Suitable sites must contain the right temperature range
that supports the biological needs of the Puerto Rican harlequin
butterfly. Average daily maximum temperatures where the species occurs
range from 28 to 32 [deg]C (82 to 90 [deg]F), suggesting that the
species' ecological niche has evolved within this range of upper
thermal tolerance (Service 2019, p. 80). Moreover, exposure to high
temperature may cause dehydration in adults, which is a threat due to
their large surface-to-volume ratio. As a day-flier, the Puerto Rican
harlequin butterfly likely has a high need for water because the
species is active during the warmest time of the day, from 9 a.m. to 4
p.m. (Service 2019, p. 55).
The capacity for Puerto Rican harlequin butterfly populations to
grow and expand is limited by the quantity and quality of the habitat
and the connectivity among habitat patches. Healthy Puerto Rican
harlequin butterfly populations rely on discrete high-quality habitat
patches as small as 0.4 ha (1 ac), separated by less than 1 km (0.6 mi)
and embedded in a landscape with few barriers for dispersal of the
species. Populations in patches this small likely rely on the existence
of populations in nearby patches to ensure their long-term persistence
(Service 2019, pp. 36-37).
Connectivity must be adequate not only for an individual's foraging
needs, but to connect individual butterflies to a larger interbreeding
population, enhancing subpopulation resilience through both the rescue
effect and maintenance of genetic diversity. Moreover, forest
connectivity among suitable patches and water sources is essential for
dispersal. Three factors are likely essential to ensure a healthy
interaction among populations: short distances between patches, high-
quality habitat, and few or no dispersal barriers. The Puerto Rican
harlequin butterfly may not typically move greater than 1 km (0.6 mi)
between habitat patches separated by structurally similar natural
habitats, or through a mosaic of disturbed habitat including houses,
roads, and grass-dominated fields or pasture. Hence, habitat quality--
indicated by factors including density of prickly bush, amount and
quality of adult food sources, and water sources--plays an important
role in Puerto Rican harlequin butterfly colonization success.

Summary of Essential Physical or Biological Features

We derive the specific physical or biological features essential to
the conservation of the Puerto Rican harlequin butterfly from studies
of the species' habitat, ecology, and life history as described in this
document. Additional information can be found in the SSA report
(Service 2019, entire; available on https://www.regulations.gov under
Docket No. FWS-R4-ES-2020-0083). We have determined that the following
physical or biological features are essential to the conservation of
the Puerto Rican harlequin butterfly:
1. Forest habitat types in the Northern Karst region in Puerto
Rico: Mature secondary moist limestone evergreen and semi-deciduous
forest, or young secondary moist limestone evergreen and semi-deciduous
forest, or both forest types, in subtropical moist forest or
subtropical wet forest life zones.
2. Forest habitat types in the West-central Volcanic-serpentine
region in Puerto Rico: Mature secondary dry and moist serpentine semi-
deciduous forest, or young secondary dry and moist serpentine semi-
deciduous forest, or both forest types, in subtropical moist forest or
subtropical wet forest life zones.
3. Components of the forest habitat types. The forest habitat types
described in 1. and 2., above, contain:
(i) Forest area greater than 0.4 ha (1 ac) that is within 1 km (0.6
mi) of a water source (stream, pond, puddle, etc.) and other forested
area.
(ii) Canopy cover between 50 to 85 percent and canopy height
ranging from 4 to 8 m (13.1 to 26.2 ft).
(iii) Prickly bush covering more than 30 percent of the understory.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the

[[Page 73670]]

conservation of the species and which may require special management
considerations or protection.
The features essential to the conservation of the Puerto Rican
harlequin butterfly may require special management considerations or
protections to reduce or mitigate the following threats: Land
conversion for urban and commercial use, road construction and
maintenance, utility and communications structures and corridors, and
agriculture; fires and garbage dumps (which are often the source of
fires); and climate change and drought. In particular, habitat that has
at any time supported a subpopulation may require protection from land
use change that would permanently remove host plant patches and nectar
sources, or that would destroy habitat containing adult nectar sources
that connects such host plant patches through which adults are likely
to move. Some examples of beneficial management activities would
include the following: establishing a reforestation program
incorporating the host plant and other native plants to provide
sufficient nectar sources; installing fencing enclosures in areas
containing hostplants in order to provide protection from maintenance
activities; develop an effective educational outreach program to help
protect identified Puerto Rican harlequin butterfly habitat. These
management activities will protect from losses of habitat large enough
to preclude conservation of the species.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat.

Areas Occupied at the Time of Listing

As discussed above in Summary of Biological Status and Threats, an
area is considered to be occupied by the species if it was detected in
surveys no earlier than 2018. The areas designated as critical habitat
provide sufficient habitat for breeding, nonbreeding, and dispersing
adults of the Puerto Rican harlequin butterfly, as well as the habitat
needs for all larval stages of this butterfly. These areas contain all
the physical or biological features defined for the species. We are not
designating any areas outside the geographical area occupied by the
species because the occupied areas are sufficient to promote
conservation of the species, and because we have not identified any
unoccupied areas that meet the definition of critical habitat.
In summary, within the geographic area occupied by the species at
the time of listing, we delineated critical habitat unit boundaries
using the following criteria:
1. Forested habitat that is currently occupied and contains some or
all of the physical or biological features.
2. Forested habitat that is located between the breeding sites, and
within a 1 km (0.6 mi) radius around each subpopulation. These
additional areas serve as an extension of the habitat within the
geographic area of an occupied unit and promote connectivity among the
breeding sites in an occupied unit, fostering genetic exchange between
subpopulations.
We evaluated those occupied forested habitats in criterion 1 and
refined the boundaries of the critical habitat area by evaluating the
presence or absence of appropriate physical or biological features in
criterion 2. We selected the forested habitat boundary cutoff points
(the edges or endpoints of the habitat with the physical or biological
features) to exclude areas that are highly degraded, already developed,
or not likely restorable; for example, areas permanently deforested by
urban development or frequently deforested for agricultural practices
(e.g., cattle rearing). Additionally, we used the forested habitat
cutoff points at the 2-km (1.2-mi) buffer zone around the species'
breeding sites to mark the boundary of a patch of land for designation
because 1 km (0.6 mi) is the maximum distance the butterfly has been
observed to disperse to a mating site (Monz[oacute]n-Carmona 2007, p.
42).

Critical Habitat Maps

When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features necessary for the Puerto Rican harlequin butterfly.
The scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. There are developed areas (single houses and
access roads) within the designation, which could affect the
suitability of habitat for the species. Any such lands inadvertently
left inside critical habitat boundaries shown on the maps of this rule
have been excluded by text in the rule and are not designated as
critical habitat. Therefore, a Federal action involving these lands
will not trigger section 7 consultation under the Act with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the physical or biological features in
the adjacent critical habitat.
We are designating critical habitat lands that we have determined
are occupied at the time of listing (i.e., currently occupied), and
that contain all of the physical or biological features that are
essential to support life-history processes of the species and that may
require special management considerations.
We are designating six units as critical habitat based on the
physical or biological features being present to support the Puerto
Rican harlequin butterfly's life-history processes. All units contain
the identified region-specific forest habitat types and components of
the forest habitat types that are the physical or biological features
essential to the conservation of the Puerto Rican harlequin butterfly
and support multiple life-history processes.
The critical habitat designation is defined by the maps, as
modified by any accompanying regulatory text, presented at the end of
this document under Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the discussion of individual units below. For the critical habitat
designation, the coordinates or plot points or both from which the maps
are generated are included in the decision file for the critical
habitat designation and are available at the Caribbean Ecological
Services Field Office's website. We will make the coordinates or plot
points or both on which each map is based available to the public at
https://www.regulations.gov at Docket No. FWS-R4-ES-2020-0083 and our
internet site at https://www.fws.gov/southeast/caribbean.

Final Critical Habitat Designation

We are designating six units as critical habitat for the Puerto
Rican harlequin butterfly. The critical habitat areas we describe below
constitute our best assessment of areas that meet the definition of
critical habitat for the Puerto Rican harlequin butterfly. The six
areas we propose as critical habitat are: (1) Isabela, Quebradillas and
Camuy (IQC), (2) Guajataca, (3) R[iacute]o Abajo, (4) R[iacute]o
Encantado, (5) Maricao, and (6)

[[Page 73671]]

Sus[uacute]a. Table 4 shows the critical habitat units and the
approximate area of each unit. All six units of critical habitat are
considered occupied by the species.

Table 4--Critical Habitat Units for the Puerto Rican Harlequin Butterfly
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Size of unit in acres
Critical habitat unit Land ownership by type (hectares) Occupied?
----------------------------------------------------------------------------------------------------------------
1. IQC.............................. Public................ 5.0 (2.0) Yes.
Private............... 1,670.7 (676.1)
Total................. 1,675.7 (678.1)
2. Guajataca........................ Public................ 583.5 (236.1) Yes.
Private............... 3,255.5 (1,317.5)
Total................. 3,839.0 (1,553.6)
3. R[iacute]o Abajo................. Public................ 4,544.4 (1,839.1) Yes.
Private............... 1,394.8 (564.5)
Total................. 5,939.2 (2,403.6)
4. R[iacute]o Encantado............. Public................ 204.8 (82.9) Yes.
Private *............. 12,570.8 (5,087.2)
Total................. 12,775.6 (5,170.1)
5. Maricao.......................... Public................ 7,883.1 (3,190.2) Yes.
Private............... 2,971.5 (1,202.5)
Total................. 10,854.6 (4,392.7)
6. Sus[uacute]a..................... Public................ 3,171.5 (1,283.5) Yes.
Private............... 3,010.4 (1,218.3)
Total................. 6,181.9 (2,501.8)
-------------------------
Totals.......................... Public................ 16,392.3 (6,633.8)
Private............... 24,873.7 (10,066.0)
Total................. 41,266.0 (16,699.8)
----------------------------------------------------------------------------------------------------------------
* 1,442.6 private ac owned by Para La Naturaleza (PLN) and managed for conservation.
Note: Area sizes may not sum due to rounding.

We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Puerto Rican harlequin
butterfly, below.

Unit 1: IQC

Unit 1 consists of 1,675.7 ac (678.1 ha) located along the northern
coastal cliff among the municipalities of Isabela, Quebradillas, and
Camuy (IQC), 23 km (15 mi) west of Arecibo. The critical habitat being
designated is bound on the east by the community La Yeguada and
Membrillo in Camuy, on the west by the community Villa Pesquera and
Pueblo in Isabela, on the north by the Atlantic Ocean, and on the south
by urban developments, State road PR-2, the Royal Isabela Golf Course,
and some deforested areas used for agricultural practices such as
cattle grazing. In this unit, all life stages of the species (i.e.,
imago, egg, larva, chrysalis, and adults) and the species' host plant
have been found in 115 sites.
Unit 1 is in the subtropical moist forest life zone. The forested
habitat is composed of young secondary lowland moist limestone
evergreen and semideciduous forest and mature secondary lowland moist
limestone evergreen and semideciduous forest (Gould et al. 2008, p.
14). Plant species in this unit include prickly bush and several others
that are sources of nectar for adult Puerto Rican harlequin
butterflies. The presence of rare plant taxa in this unit suggests it
contains relict and mature forest that survived the massive
deforestation of the 19th century (Morales and Estremera 2018, p. 1)
and has persisted as a refuge for the Puerto Rican harlequin butterfly.
Unit 1 contains all the Northern Karst region forest habitat types and
components of those habitat types that are the essential physical or
biological features for the species.
A combination of habitat fragmentation and high road density is a
current and future threat to the Puerto Rican harlequin butterfly in
Unit 1. Habitat in Unit 1 has been lost to single land parcels
segregated for houses, and large-scale residential and tourist
projects, which are planned within and around northern Puerto Rico.
Special management considerations or protections in Unit 1 may be
required to address land conversion for urban and commercial use, road
construction and maintenance, utility and communications structures and
corridors, and agriculture; fires and garbage dumps (which are often
the source of fires); and climate change and drought.

Unit 2: Guajataca

Unit 2 consists of 1,553.6 ha (3,839 ac) south of PR 2, between the
municipalities Isabela and Quebradillas, 25 km (15.6 mi) southwest of
Arecibo. The critical habitat being designated is bounded on the east
by the San Antonio ward in Quebradillas, on the west by PR 446 at
Galateo ward in Isabela, on the north by Llanadas ward in Isabela and
Cacao ward in Quebradillas, and on the south by Monta[ntilde]as de
Guarionex, between the Planas ward in Isabela and Charcas ward in
Quebradillas.
The Puerto Rican harlequin butterfly was first found in Unit 2 in
July 2019. All life stages of the species and its host plant have been
found at six sites. Unit 2 is in the subtropical moist/wet-northern
limestone forest life zone (Helmer et al. 2002, p. 169). Habitat in
Unit 2 is composed of mature secondary moist limestone evergreen and
semideciduous forest (Gould et al. 2008, p. 14). Fifteen percent of the
critical habitat being designated in this unit overlaps Guajataca
Commonwealth Forest, an area managed by the DNER for conservation. The
other 85 percent is private land subjected to agriculture or rural
development. Unit 2 contains all the Northern Karst region forest
habitat types and components of those habitat types that are the
essential physical or biological features for the species. Special
management considerations or protections in Unit 2 may be required to
address land conversion for rural development, road construction and
maintenance, utility and

[[Page 73672]]

communications structures and corridors, and agriculture, as well as
climate change and drought.

Unit 3: R[iacute]o Abajo

Unit 3 consists of 5,939.2 ac (2,403.6 ha) located 14.5 km (9 mi)
south of Arecibo. The critical habitat being designated is bound on the
east by the R[iacute]o Grande de Arecibo, on the west by Santa Rosa
Ward in Utuado, on the north by Hato Viejo Ward in Arecibo, and on the
south by Caguana and Sabana Grande Wards in Utuado. In this unit, all
life stages of the species and the host plant have been found at four
sites. Unit 3 is in the subtropical moist/wet-northern limestone forest
life zone (Helmer et al. 2002, p. 169). The species' habitat in Unit 3
is composed of mature secondary moist limestone evergreen and
semideciduous forest (Gould et al. 2008, p. 14). The R[iacute]o Abajo
Commonwealth Forest, managed for conservation, occupies 77 percent of
the unit. The other 23 percent is a mosaic of highways, roads, and
private lands subject to agriculture or rural development. Unit 3
contains all the Northern Karst region forest habitat types and
components of those habitat types that are the essential physical or
biological features for the species. Special management considerations
or protections in Unit 3 may be required to address land conversion for
rural development, road construction and maintenance, utility and
communications structures and corridors, and agriculture, as well as
climate change and drought.

Unit 4: R[iacute]o Encantado

Unit 4 consists of 12,775.6 ac (5,170.1 ha) located among the
municipalities of Arecibo, Florida, and Ciales, 17 km (10.5 mi)
southeast of Arecibo. The critical habitat being designated is bound on
the east by Hato Viejo Ward in Ciales, on the west by the R[iacute]o
Grande de Arecibo, on the north by Arrozales Ward in Arecibo and Pueblo
Ward in Florida, and on the south by the PR 146 along of the
Lim[oacute]n Ward in Utuado and Front[oacute]n Ward in Ciales. All life
stages of the species and the host plant have been found in nine sites.
The unit is in the subtropical moist/wet-northern limestone forest life
zone (Helmer et al. 2002, p. 169). The species' habitat in Unit 4 is
composed of mature secondary moist limestone evergreen and
semideciduous forest (Gould et al. 2008, p. 14). Thirteen percent of
the critical habitat being designated is in areas managed by Para La
Naturaleza (PLN), a private organization, or by the DNER for
conservation. The other 87 percent consists of private lands subject to
agriculture or rural developments. Unit 4 contains all the Northern
Karst region forest habitat types and components of those habitat types
that are the essential physical or biological features for the species.
Special management considerations or protections in Unit 4 may be
required to address land conversion for rural developments, road
construction and maintenance, utility and communications structures and
corridors, and agriculture, as well as climate change and drought.

Unit 5: Maricao

Unit 5 consists of 10,854.6 ac (4,392.7 ha) on the west end of the
Cordillerra Central, among the municipalities of Maricao, San
Germ[aacute]n, and Sabana Grande, 16.1 km (10 mi) southeast of
Mayag[uuml]ez. The critical habitat being designated is bound on the
east by Tabonuco Ward in Sabana Grande, on the west by Rosario Ward in
San Germ[aacute]n, on the north by Pueblo Ward of Maricao, and on the
south by the Guam[aacute] and Santana Ward of San Germ[aacute]n. All
life stages of the species and its host plant have been found at seven
sites in the unit. Unit 5 is in the subtropical wet forest life zone on
serpentine-derived soil and contains three types of forest: (1) Mature
secondary montane wet serpentine evergreen forest, (2) wet serpentine
shrub and woodland forest, and (3) mature secondary montane wet non-
calcareous evergreen forest (Gould et al. 2008, p. 14). The Maricao
Commonwealth Forest, managed for conservation by DNER, occupies 72
percent of the unit. The other 28 percent is private land consisting of
a mosaic of agriculture, rural developments, and forest. Unit 5
contains all the West-central Volcanic-serpentine region forest habitat
types and components of those habitat types that are the essential
physical or biological features for the species. Special management
considerations or protections in Unit 5 may be required to address land
conversion for rural developments, road construction and maintenance,
utility and communications structures and corridors, and agriculture;
fires and garbage dumps (which are often the source of fires); and
climate change and drought.

Unit 6: Sus[uacute]a

Unit 6 consists of 6,181.9 ac (2,501.8 ha) between the
municipalities of Sabana Grande and Yauco, 33.6 km (21 mi) northwest of
Ponce. The critical habitat being designated is bound on the east by
the PR 371 in Almacigo Alto and Collores Wards in Yauco, on the west by
Pueblo Ward in Sabana Grande, on the north by Frailes Ward in Yauco,
and on the south by PR 368 in Sus[uacute]a Ward in Sabana Grande. All
life stages of the species and its host plant have been found at three
sites in this unit. Unit 6 is in the subtropical moist and subtropical
wet forest life zones and contains mature secondary dry and moist
serpentine semi-deciduous forest and young secondary moist serpentine
evergreen and semi-deciduous forest. The Sus[uacute]a Commonwealth
Forest, managed by DNER for conservation, occupies 51 percent of the
critical habitat being designated in this unit. The other 49 percent is
on private lands subjected to agriculture or rural developments. Unit 6
contains all the West-central Volcanic-serpentine region forest habitat
types and components of those habitat types that are the essential
physical or biological features for the species. Special management
considerations or protections in Unit 6 may be required to address land
conversion for rural developments, road construction and maintenance,
utility and communications structures and corridors, and agriculture;
fires and garbage dumps (which are often the source of fires); and
climate change and drought.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
We published a final rule adopting a revised definition of
destruction or adverse modification on August 27, 2019 (84 FR 44976).
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal

[[Page 73673]]

Highway Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal agency actions within the
species' habitat that may require conference or consultation or both
include management and any other landscape-altering activities on
Federal lands administered by the Service, Army National Guard, U.S.
Forest Service, and National Park Service; issuance of section 404
Clean Water Act permits by the U.S. Army Corps of Engineers; and
construction and maintenance of roads or highways by the Federal
Highway Administration. 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 carried out by a Federal
agency, do not require section 7 consultation.
Compliance with the requirements of section 7(a)(2), is documented
through our 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, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying 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 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation, we have listed a new species
or designated critical habitat that may be affected by the Federal
action, the action has been modified in a manner that affects the
species or critical habitat in a way not considered in the previous
consultation, new information reveals effects of the action that may
affect the species or critical habitat in a manner not previously
considered, or the amount of take in the incidental take statement is
exceeded. In such situations, Federal agencies sometimes may need to
request reinitiation of consultation with us, but the regulations also
specify some exceptions to the requirement to reinitiate consultation
on specific land management plans after subsequently listing a new
species or designating new critical habitat. See the regulations for a
description of those exceptions.

Application of the ``Destruction or Adverse Modification'' Standard

The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that the Service may, during a consultation
under section 7(a)(2) of the Act, find are likely to destroy or
adversely modify critical habitat include, but are not limited to:
(1) Removal of prickly bush host plants harboring eggs,
caterpillars, or chrysalises;
(2) Removal of a significant amount of prickly bush or nectar
source plants, such that the value of the critical habitat as a whole
for the conservation of the Puerto Rican harlequin butterfly is
appreciably diminished; or
(3) Removal of native forest resulting in fragmentation such that
remaining forest patches are greater than 1 km (0.6 mi) apart or less
than 1 ac (0.4 ha) in size.
Such activities could include, but are not limited to, residential
and commercial development, and conversion to agricultural fields or
pasture. Any of these activities could permanently eliminate or reduce
the habitat necessary for the growth and reproduction of the Puerto
Rican harlequin butterfly.

Exemptions

Application of Section 4(a)(3) of the Act

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is being designated. There are no DoD lands
with a completed INRMP within this critical habitat designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat 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 she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she 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 the determination to exclude a particular area, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor.
We describe below the process that we undertook for taking into
consideration each category of impacts and our analyses of the relevant
impacts.

[[Page 73674]]

Consideration of Economic Impacts

Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas for designation. We then identify which conservation efforts may
be the result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a critical habitat
designation is analyzed by comparing scenarios both ``with critical
habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts are not expected without
the designation of critical habitat for the species. In other words,
the incremental costs are those attributable solely to the designation
of critical habitat, above and beyond the baseline costs. These are the
costs we use when evaluating the benefits of inclusion and exclusion of
particular areas from the final designation of critical habitat should
we choose to conduct a discretionary 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this designation of critical habitat. The
information contained in our IEM was then used to develop a screening
analysis of the probable effects of the designation of critical habitat
for the Puerto Rican harlequin butterfly (IEc 2020, entire). We began
by conducting a screening analysis of the critical habitat designation
in order to focus our analysis on the key factors that are likely to
result in incremental economic impacts. The purpose of the screening
analysis is to filter out particular geographic areas of critical
habitat that are already subject to such protections and are,
therefore, unlikely to incur incremental economic impacts. In
particular, the screening analysis considers baseline costs (i.e.,
absent critical habitat designation) and includes any probable
incremental economic impacts where land and water use may already be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. Ultimately, the screening
analysis allows us to focus our analysis on evaluating the specific
areas or sectors that may incur probable incremental economic impacts
as a result of the designation. If the critical habitat designation
contains any unoccupied units, the screening analysis assesses whether
those units are unoccupied because they require additional management
or conservation efforts that may incur incremental economic impacts.
This screening analysis combined with the information contained in our
IEM constitute what we consider to be our economic analysis of the
critical habitat designation for the Puerto Rican harlequin butterfly;
our economic analysis is summarized in the narrative below.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the critical habitat
designation for the Puerto Rican harlequin butterfly, first we
identified, in the IEM dated April 7, 2020, probable incremental
economic impacts associated with following categories of activities:
(1) Highways and roads; (2) power lines; (3) communication towers; (4)
commercial or residential development; (5) monitoring of agricultural
pests by the U.S. Department of Agriculture's Animal and Plant Health
Inspection Service; and (6) and Federal agency conservation projects
(Natural Resources Conservation Service and the U.S. Fish and Wildlife
Service). We considered each industry or category individually.
Additionally, we considered whether their activities have any Federal
involvement. Critical habitat designation generally will not affect
activities that do not have any Federal involvement; under the Act,
designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies. In areas where
the Puerto Rican harlequin butterfly is present, Federal agencies will
be required to consult with the Service under section 7 of the Act on
activities they fund, permit, or implement that may affect the species.
Our consultation will include an evaluation of measures to avoid the
destruction or adverse modification of the species' designated critical
habitat.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the Puerto
Rican harlequin butterfly. Because critical habitat is being designated
concurrently with the listing, it has been our experience that it is
more difficult to discern which conservation efforts are attributable
to the species being listed and those which will result solely from the
designation of critical habitat. However, the following specific
circumstances in this case help to inform our evaluation: (1) The
essential physical or biological features identified for critical
habitat are the same features essential for the life requisites of the
species, and (2) any actions that would result in sufficient harm or
harassment to constitute jeopardy to the Puerto Rican harlequin
butterfly would also likely adversely affect the essential physical or
biological features of critical habitat. The IEM outlines our rationale
concerning this limited distinction between baseline conservation
efforts and incremental impacts of the designation of critical habitat
for this species. This evaluation of the incremental effects has been
used as the basis to evaluate the probable

[[Page 73675]]

incremental economic impacts of this designation of critical habitat.
The final critical habitat designation for Puerto Rican harlequin
butterfly includes 41,266 ac (16,699.8 ha) in six units, all which are
occupied by the species. All public ownership consists of Commonwealth
Forests managed by the DNER for conservation, except 5 ac (2 ha)
managed for recreation in Unit 1. Since all areas are occupied, it is
unlikely that any additional conservation efforts would be recommended
to address the adverse modification standard over and above those
recommended as necessary to avoid jeopardizing the continued existence
of the Puerto Rican harlequin butterfly. Therefore, while analysis of
the impacts of the action of on critical habitat is necessary, and this
additional analysis will require costs in time and resources by both
the Federal action agency and the Service, it is believed that, in most
circumstances, these costs will predominantly be administrative in
nature and will not be significant.
The probable incremental economic impacts of this critical habitat
designation for the Puerto Rican harlequin butterfly are expected to be
limited to additional administrative effort, as well as minor costs of
conservation efforts resulting from a small number of future section 7
consultations. From 2015 to 2019, there were 4 technical assistance
efforts, 14 informal consultations, and 1 formal consultation for three
listed species that overlap the range of the Puerto Rican harlequin
butterfly (IEc 2020, p. 11). The cost for each of these three actions
related to section 7 was approximately $420, $2,500, and $5,300,
respectively. We do not expect this critical habitat designation to
result in an increase in the number technical assistance requests,
informal, and formal consultations under section 7 because all of the
units are occupied and overlap with other listed species. However, the
cost of each action under section 7 may increase because of the
additional time and resources needed to consider the potential for
adverse modification of critical habitat and not just the likelihood of
jeopardy. We anticipate that the additional cost per year to consider
impacts on critical habitat for the Puerto Rican harlequin butterfly
(the incremental economic impact of designating critical habitat) will
be $42,300 (IEc 2020, p. 12). Thus, the annual administrative burden
will not reach $100 million, which is the threshold of ``significant''
under E.O. 12866.

Exclusions Based on Economic Impacts

As discussed above, we considered the economic impacts of the
critical habitat designation, and the Secretary is not exercising her
discretion to exclude any areas from this designation of critical
habitat for the Puerto Rican harlequin butterfly based on economic
impacts. A copy of the IEM and screening analysis with supporting
documents may be obtained by contacting the Caribbean Ecological
Services Field Office (see ADDRESSES) or by downloading from the
internet at https://www.regulations.gov.

Exclusions Based on Impacts on National Security and Homeland Security

Section 4(a)(3)(B)(i) of the Act (see Exemptions, above) may not
cover all Department of Defense (DoD) lands or areas that pose
potential national-security concerns (e.g., a DoD installation that is
in the process of revising its INRMP for a newly listed species or a
species previously not covered). If a particular area is not covered
under section 4(a)(3)(B)(i), national-security or homeland-security
concerns are not a factor in the process of determining what areas meet
the definition of ``critical habitat.'' Nevertheless, when designating
critical habitat under section 4(b)(2), the Service must consider
impacts on national security, including homeland security, on lands or
areas not covered by section 4(a)(3)(B)(i). Accordingly, we will always
consider for exclusion from the designation areas for which DoD,
Department of Homeland Security (DHS), or another Federal agency has
requested exclusion based on an assertion of national-security or
homeland-security concerns. We have determined that the lands within
the designation of critical habitat for Puerto Rican harlequin
butterfly are not owned or managed by DoD or DHS, and, therefore, we
anticipate no impact on national security. Consequently, we did not
exclude any areas from the final designation based on impacts on
national security.

Exclusions Based on Other Relevant Impacts

Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether there are
permitted conservation plans covering the species in the area such as
HCPs, safe harbor agreements, or candidate conservation agreements with
assurances, or whether there are nonpermitted conservation agreements
and partnerships that would be encouraged by designation of, or
exclusion from, critical habitat. In addition, we look at the existence
of Tribal conservation plans and partnerships, and consider the
government-to-government relationship of the United States with Tribal
entities.
In preparing this final rule, we determined that there are
currently no permitted conservation plans or other nonpermitted
conservation agreements or partnerships for the Puerto Rican harlequin
butterfly, and the final critical habitat designation does not include
any Tribal lands or trust resources. We anticipate no impact on Tribal
lands, partnerships, or permitted or nonpermitted plans or agreements
from this critical habitat designation. Accordingly, we did not exclude
any areas from the final designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.

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

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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

[[Page 73676]]

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 certification statement of the factual basis for certifying
that the rule will not have a significant economic impact on a
substantial number of small entities.
According to the Small Business Administration, 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; and small businesses (13 CFR 121.201). 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 whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as 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.
Under the RFA, as amended, and as understood in the light of recent
court decisions, Federal agencies are required to evaluate only the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies will be directly
regulated by this designation. There is no requirement under the RFA to
evaluate the potential impacts to entities not directly regulated.
Moreover, Federal agencies are not small entities. Therefore, because
no small entities will be directly regulated by this rulemaking, the
Service certifies that this critical habitat designation 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--Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that this
critical habitat designation will significantly affect energy supplies,
distribution, or use. There are currently no new planned power line or
pipeline corridors in the critical habitat units. If there is a Federal
nexus for maintenance of existing power supply structures and rights-
of-way under section 7 of the Act, any section 7 consultation for
potential effects to critical habitat will also be undertaken due to
the presence of the Puerto Rican harlequin butterfly as a threatened
species and several other federally listed species that occupy the
critical habitat. Therefore, any activities to preclude destruction of
adverse modification of critical habitat--such as larval host plant and
adult nectar source plant surveys, avoidance of host plants that may
have eggs or larvae of the Puerto Rican harlequin butterfly, and
avoidance of insecticide and pesticide applications at project sites--
would also be needed to avoid jeopardy. Thus, costs of considering
critical habitat alone for a section 7 consultation will be entirely
administrative and less than $10,000 (IEc 2020, entire), with the
burden solely on the Service and Federal action agency. As such, energy
supply, distribution, or use should not be affected significantly.
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
et seq.), we make the following finding:
(1) 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, or 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; Aid to Families
with Dependent Children 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 affected because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would

[[Page 73677]]

not apply, nor would critical habitat shift the costs of the large
entitlement programs listed above onto State governments.
(2) 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. Therefore, a Small Government Agency Plan is not required.

Takings--Executive Order 12630

In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Puerto Rican harlequin butterfly in a takings
implications assessment. The Act does not authorize the Service to
regulate private actions on private lands or confiscate private
property as a result of critical habitat designation. Designation of
critical habitat does not affect land ownership, or establish any
closures, or restrictions on use of or access to the designated areas.
Furthermore, the designation of critical habitat does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. However, Federal agencies are
prohibited from carrying out, funding, or authorizing actions that
would destroy or adversely modify critical habitat. A takings
implications assessment has been completed for the designation of
critical habitat for the Puerto Rican harlequin butterfly, and it
concludes that this designation of critical habitat does not pose
significant takings implications for lands within or affected by the
designation.

Federalism--Executive Order 13132

In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies. From a federalism perspective, the
designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical or biological
features of the habitat necessary for the conservation of the species
are specifically identified. This information does not alter where and
what federally sponsored activities may occur. However, it may assist
State and local governments in long-range planning because they no
longer have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act will be required. 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 affected 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.

Civil Justice Reform--Executive Order 12988

In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that this rule will not
unduly burden the judicial system and that it 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. To assist the
public in understanding the habitat needs of the species, this rule
identifies the elements of physical or biological features essential to
the conservation of the species. The designated areas of critical
habitat are presented on maps, and the rule provides options for the
interested public to obtain more detailed location information, if
desired.

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

This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.

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

It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) 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 position was upheld by the U.S. Court of
Appeals for 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 Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
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. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that no Tribal
lands fall within the boundaries of the critical habitat for the Puerto
Rican harlequin butterfly, so no Tribal lands will be affected by the
designation.

References Cited

A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Caribbean Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).

Authors

The primary authors of this rule are the staff members of the Fish
and Wildlife Service's Species Assessment

[[Page 73678]]

Team and the Caribbean Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.

0
2. In Sec. 17.11, in paragraph (h), amend the table ``List of
Endangered and Threatened Wildlife'' by adding an entry for
``Butterfly, Puerto Rican harlequin'' in alphabetical order under
INSECTS to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

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

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Insects
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Butterfly, Puerto Rican Atlantea tulita... Wherever found.... T 87 FR [Insert Federal
harlequin. Register page where
the document begins],
12/1/22; 50 CFR
17.47(g); \4d\ 50 CFR
17.95(i).\CH\

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec. 17.47 by adding paragraphs (f) and (g) to read as
follows:

Sec. 17.47 Special rules--insects.

* * * * *
(f) [Reserved]
(g) Puerto Rican harlequin butterfly (Atlantea tulita).
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to the Puerto Rican harlequin butterfly.
Except as provided under paragraph (g)(2) of this section and Sec.
17.4, it is unlawful for any person subject to the jurisdiction of the
United States to commit, to attempt to commit, to solicit another to
commit, or cause to be committed, any of the following acts in regard
to this species:
(i) Import or export, as set forth at Sec. 17.21(b).
(ii) Take, as set forth at Sec. 17.21(c)(1).
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1).
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e).
(v) Sale or offer for sale, as set forth at Sec. 17.21(f).
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (c)(4) for
endangered wildlife.
(iii) Take as set forth at Sec. 17.31(b).
(iv) Take incidental to an otherwise lawful activity caused by:
(A) Normal agricultural practices, including pesticide use, which
are carried out in accordance with any existing regulations, permit and
label requirements, and best management practices, as long as the
practices do not include:
(1) Clearing or disturbing forest or prickly bush (Oplonia spinosa)
to create or expand agricultural areas; or
(2) Applying pesticides in or contiguous to habitat known to be
occupied by the Puerto Rican harlequin butterfly.
(B) Normal residential and urban activities, such as mowing,
weeding, edging, and fertilizing.
(C) Maintenance of recreational trails in Commonwealth Forests by
mechanically clearing vegetation, only when approved by or under the
auspices of the Puerto Rico Department of Natural and Environmental
Resources, or conducted on lands established by private organizations
or individuals solely for conservation or recreation.
(D) Habitat management or restoration activities expected to
provide a benefit to Puerto Rican harlequin butterfly or other
sensitive species, including removal of nonnative, invasive plants.
These activities must be coordinated with and reported to the Service
in writing and approved the first time an individual or agency
undertakes them.
(E) Projects requiring removal of the host plant to access and
remove illicit garbage dumps that are potential sources of
intentionally set fires, provided such projects are conducted in
coordination with and reported to the Service.
(F) Fruit fly trapping by the U.S. Department of Agriculture's
Animal and Plant Health Inspection Service, provided trapping
activities do not disturb the host plant.
(v) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.

0
4. Amend Sec. 17.95, in paragraph (i), by adding an entry for ``Puerto
Rican Harlequin Butterfly (Atlantea tulita)'' immediately following the
entry for ``Palos Verdes Blue Butterfly (Glaucopsyche lygdamus
palosverdesensis)'', to read as set forth below:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(i) Insects.
* * * * *
Puerto Rican Harlequin Butterfly (Atlantea tulita)
(1) Critical habitat units are depicted for Isabela, Quebradillas,
Camuy, Arecibo, Florida, Ciales, Utuado, Maricao, Yauco, Sabana Grande,
and San Germ[aacute]n municipalities, Puerto Rico, on the maps in this
entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the Puerto Rican harlequin butterfly
consist of the following components:
(i) Forest habitat types in the Northern Karst region in Puerto
Rico: Mature secondary moist limestone evergreen and semi-deciduous
forest, or young secondary moist limestone evergreen and semi-deciduous
forest, or both

[[Page 73679]]

forest types, in subtropical moist forest or subtropical wet forest
life zones.
(ii) Forest habitat types in the West-central Volcanic-serpentine
region in Puerto Rico: Mature secondary dry and moist serpentine semi-
deciduous forest, or young secondary dry and moist serpentine semi-
deciduous forest, or both forest types, in subtropical moist forest or
subtropical wet forest life zones.
(iii) Components of forest habitat types: The forest habitat types
described in paragraphs (2)(i) and (ii) of this entry contain:
(A) Forest area greater than 1 acre that is within 1 kilometer of a
water source (stream, pond, puddle, etc.) and other forested area;
(B) Canopy cover between 50 to 85 percent and average canopy height
ranging from 4 to 8 meters (13.1 to 26.2 feet); and
(C) Prickly bush (Oplonia spinosa) covering more than 30 percent of
the understory.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
January 3, 2023.
(4) Data layers defining map units were created by delineating
habitats that contain at least one or more of the physical or
biological features defined in paragraph (2) of this entry. We used the
digital landcover layer created by the Puerto Rico GAP Analysis Project
over a U.S. Department of Agriculture 2007 digital orthophoto mosaic.
The resulting critical habitat unit was then mapped using State Plane
North American Datum 83 coordinates. The maps in this entry, as
modified by any accompanying regulatory text, establish the boundaries
of the critical habitat designation. The coordinates or plot points or
both on which each map is based are available to the public at the
Service's internet site at https://www.fws.gov/office/caribbean-ecological-services at https://www.regulations.gov at Docket No. FWS-
R4-ES-2020-0083, and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Note: Index map follows:

Figure 1 to Puerto Rican Harlequin Butterfly (Atlantea tulita)
paragraph (5)
[GRAPHIC] [TIFF OMITTED] TR01DE22.001

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

Figure 2 to Puerto Rican Harlequin Butterfly (Atlantea tulita)
paragraph (6)(ii)

[[Page 73680]]

[GRAPHIC] [TIFF OMITTED] TR01DE22.002

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

Figure 3 to Puerto Rican Harlequin Butterfly (Atlantea tulita)
paragraph (8)(ii)

[[Page 73681]]

[GRAPHIC] [TIFF OMITTED] TR01DE22.003

(9) Unit 4: R[iacute]o Encantado; Arecibo, Florida, Ciales, and
Utuado Municipalities, Puerto Rico.
(i) Unit 4 consists of 12,775.6 acres (5,170.1 hectares) located
among the municipalities of Arecibo, Florida, Ciales, and Utuado, 17
kilometers (10.5 miles) southeast of Arecibo. The critical habitat is
bound on the east by Hato Viejo Ward in Ciales, on the west by the
R[iacute]o Grande de Arecibo, on the north by Arrozales Ward in Arecibo
and Pueblo Ward in Florida, and on the south by PR 146 along
Lim[oacute]n Ward in Utuado and Front[oacute]n Ward in Ciales. Thirteen
percent of the critical habitat (204.8 acres (82.9 hectares)) is
managed by Para La Naturaleza or by the Puerto Rico Department of
Natural and Environmental Resources for conservation. The other 87
percent (12,570.8 acres (5,087.2 hectares)) consists of private lands,
some of which are agricultural fields, roads, and rural developments,
but a majority of which is mature native forest.
(ii) Map of Unit 4 is set forth at paragraph (8)(ii) of this entry.
(10) Unit 5: Maricao; Maricao, Sabana Grande, and San Germ[aacute]n
Municipalities, Puerto Rico.
(i) Unit 5 consists of 10,854.6 acres (4,392.7 hectares) on the
west end of the Cordillerra Central, among the municipalities of
Maricao, San Germ[aacute]n, and Sabana Grande, 16.1 kilometers (10
miles) southeast of Mayag[uuml]ez. The critical habitat is bound on the
east by Tabonuco Ward in Sabana Grande, on the west by Rosario Ward in
San Germ[aacute]n, on the north by Pueblo Ward in Maricao, and on the
south by Guam[aacute] and Santana Wards in San Germ[aacute]n. The
Maricao Commonwealth Forest, managed for conservation by the Puerto
Rico Department of Natural and Environmental Resources, occupies 72
percent (7,883.1 acres (3,190.2 hectares)) of the unit. The other 28
percent (2,971.5 acres (1,202.5 hectares)) is private land consisting
of a mosaic of agriculture, rural developments, and forest.
(ii) Map of Units 5 and 6 follows:

Figure 4 to Puerto Rican Harlequin Butterfly (Atlantea tulita)
paragraph (10)(ii)

[[Page 73682]]

[GRAPHIC] [TIFF OMITTED] TR01DE22.004

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

Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-25805 Filed 11-30-22; 8:45 am]
BILLING CODE 4333-15-P