Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Elfin-Woods Warbler, 40632-40650 [2016-14539]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 81, Number 120 (Wednesday, June 22, 2016)]
[Proposed Rules]
[Pages 40632-40650]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14539]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2016-0002; 4500030113]
RIN 1018-BA95


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Elfin-Woods Warbler

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the elfin-woods warbler (Setophaga 
angelae) under the Endangered Species Act (Act). In total, 
approximately 10,977 hectares (ha) (27,125 acres (ac)) in the Maricao, 
San Germ[aacute]n, Sabana Grande, Yauco, R[iacute]o Grande, Canovanas, 
Las Piedras, Naguabo, Ceiba, Cayey, San Lorenzo, Guayama, and Patillas 
Municipalities in Puerto Rico fall within the boundaries of the 
proposed critical habitat designation. If we finalize this rule as 
proposed, it would extend the Act's protections to this species' 
critical habitat. We also announce the availability of a draft economic 
analysis for the proposed designation.

DATES: We will accept comments on the proposed rule or draft economic 
analysis that are received or postmarked on or before August 22, 2016. 
Comments submitted electronically using the Federal eRulemaking Portal 
(see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on 
the closing date. We must receive requests for public hearings, in 
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by 
August 8, 2016.

ADDRESSES: Written comments: You may submit comments on the proposed 
rule or draft economic analysis by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter Docket No. FWS-R4-ES-
2016-0002, which is the docket number for this rulemaking. Then, in the 
Search panel on the left side of the screen, under the Document Type 
heading, click on the Proposed Rules link to locate this document. You 
may submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R4-ES-2016-0002; U.S. Fish and Wildlife 
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Document availability: The draft economic analysis is available at 
https://www.fws.gov/caribbean, at https://www.regulations.gov at Docket 
No. FWS-R4-ES-2016-0002, and at the Caribbean Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    The coordinates, plot points, or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at https://www.fws.gov/caribbean, 
at https://www.regulations.gov at Docket No. FWS-R4-ES-2016-0002, and at 
the Caribbean Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT). Any additional tools or supporting information 
that we may develop for this critical habitat designation will also be 
available at the Fish and Wildlife Service Web site and Field Office 
set out above, and may also be included at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Marelisa Rivera, Deputy Field 
Supervisor, U.S. Fish and Wildlife Service, Caribbean Ecological 
Services Field Office, P.O. Box 491, Boquer[oacute]n, PR 00622; 
telephone 787-851-7297; facsimile 787-851-7440. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act, 
when we determine that a species is endangered or threatened, we must 
designate critical habitat to the maximum extent prudent and 
determinable. Designations of critical habitat can only be completed by 
issuing a rule.
    This document consists of: A proposed rule to designate critical 
habitat for the elfin-woods warbler. We have determined that 
designating critical habitat is both prudent and determinable for the 
elfin-woods warbler, and we propose a total of approximately 10,977 ha 
(27,125 ac) of critical habitat for the species in Puerto Rico. We 
proposed to list the elfin-woods warbler as a threatened species under 
the Act on September 30, 2015 (80 FR 58674). Elsewhere in this issue of 
the Federal Register we have published a final rule to list the elfin-
woods warbler as threatened with a 4(d) rule.
    The basis for our action. Section 4(a)(3) of the Act requires the 
Secretary to designate critical habitat, to the maximum extent prudent 
and determinable, for an endangered or threatened species at the time 
it is listed. Section 4(b)(2) of the Act states that the Secretary 
shall designate 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.
    We prepared a draft economic analysis of the proposed designation 
of critical habitat. In order to consider economic impacts, we have 
prepared a draft economic analysis for the proposed critical habitat 
designation. We hereby announce the availability of the draft economic 
analysis and seek public review and comment.
    We will seek peer review. We are seeking comments from independent 
specialists to ensure that our critical habitat proposal is based on 
scientifically sound data and analyses. We invite these peer reviewers 
to comment on our specific assumptions and conclusions in this proposal 
to designate critical habitat. Because we will consider all comments 
and information we receive during the comment period, our final 
designation may differ from this proposal.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific data available and be as accurate 
and as effective as possible. Therefore, we request comments or 
information from other concerned government agencies, the scientific 
community, industry, or any other interested party concerning this 
proposed rule. We particularly seek comments concerning:
    1. The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    2. Specific information on:
    a. The amount and distribution of the elfin-woods warbler's 
habitat;

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    b. What areas, that were occupied at the time of listing (i.e., are 
currently occupied) and that contain the physical and biological 
features essential to the conservation of the species, should be 
included in the designation and why;
    c. Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    d. What areas not occupied at the time of listing (i.e., not 
currently occupied) are essential for the conservation of the species 
and why.
    3. Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    4. Information on the projected and reasonably likely impacts of 
climate change on the elfin-woods warbler and proposed critical 
habitat.
    5. Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the benefits of including or excluding areas that 
exhibit these impacts.
    6. Information on the extent to which the description of economic 
impacts in the draft economic analysis (DEA) is a reasonable estimate 
of the likely economic impacts.
    7. The likelihood of adverse social reactions to the designation of 
critical habitat, as discussed in the associated documents of the DEA, 
and how the consequences of such reactions, if likely to occur, would 
relate to the conservation and regulatory benefits of the proposed 
critical habitat designation.
    8. Whether any specific areas we are proposing for critical habitat 
designation should be considered for exclusion under section 4(b)(2) of 
the Act, and whether the benefits of potentially excluding any specific 
area outweigh the benefits of including that area under section 4(b)(2) 
of the Act.
    9. Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    All comments submitted electronically via https://www.regulations.gov will be presented on the Web site in their entirety 
as submitted. For comments submitted via hard copy, we will post your 
entire comment--including your personal identifying information--on 
https://www.regulations.gov. You may request at the top of your document 
that we withhold personal information such as your street address, 
phone number, or email address from public review; however, we cannot 
guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Caribbean Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    All previous Federal actions are described in the proposal to list 
the elfin-woods warbler as a threatened species under the Act published 
on September 30, 2015 (80 FR 58674).

Critical Habitat

Background

    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.
    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 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 consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to 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). In defining those physical 
and biological features within an area, we focus on the specific 
features that 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.
    Under the second prong of the Act's definition of critical habitat, 
we can

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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. For 
example, an area currently occupied by the species but that was not 
occupied at the time of listing may be essential for the conservation 
of the species and may be included in the critical habitat designation.
    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 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 listed 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) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat, as applicable under the proposed 4(d) rule for this 
species (80 FR 58674; September 30, 2015). Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. With the listing of the elfin-woods warbler, published elsewhere 
in this issue of the Federal Register, 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.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the designation of critical habitat is not prudent when one or both of 
the following situations exist:
    1. The species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or
    2. Such designation of critical habitat would not be beneficial to 
the species. In determining whether a designation would not be 
beneficial, the factors the Service may consider include but are not 
limited to: Whether the present or threatened destruction, 
modification, or curtailment of a species' habitat or range is not a 
threat to the species, or whether any areas meet the definition of 
``critical habitat.''
    As discussed in the proposed listing rule, there is currently no 
imminent threat of take attributed to collection or vandalism for this 
species, and identification and mapping of critical habitat is not 
expected to initiate any such threat. In the absence of finding that 
the designation of critical habitat would increase threats to a 
species, we determine if such designation of critical habitat would not 
be beneficial to the species. As discussed in our proposed listing 
rule, we have determined that the present or threatened destruction, 
modification, or curtailment of a species' habitat or range is a threat 
to the elfin-woods warbler. Furthermore, as discussed below, we have 
determined that three areas meet the Act's definition of ``critical 
habitat.''
    Therefore, because we have determined that the designation of 
critical habitat will not likely increase the degree of threat to the 
species and would be beneficial, we find that designation of critical 
habitat is prudent for the elfin-woods warbler.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the elfin-
woods warbler is determinable. Our regulations at 50 CFR 424.12(a)(2) 
state that critical habitat is not determinable when one or both of the 
following situations exist:
    1. Data sufficient to perform required analyses are lacking, or
    2. The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    At the time of the proposed listing, we found that critical habitat 
was not determinable because the specific information sufficient to 
perform the required analysis of the impacts of the designation was 
lacking. We have since acquired the appropriate information necessary 
to perform the impacts analysis. We have also reviewed the available 
information pertaining to the biological needs of the species and 
habitat characteristics where this species is located. This and other 
information represent the best scientific data available and have now 
led us to conclude that the designation of critical habitat is 
determinable for the elfin-woods warbler.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas within the geographical 
area occupied by the species at the time of listing to designate as 
critical habitat, we consider the physical or biological features 
(PBFs) that are essential to the

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conservation of the species and which may require special management 
considerations or protection. These include, but are not limited to:
     Space for individual and population growth and for normal 
behavior;
     Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
     Cover or shelter;
     Sites for breeding, reproduction, or rearing (or 
development) of offspring; and
     Habitats that are protected from disturbance or are 
representative of the historic, geographical and ecological 
distributions of a species.
    We derive the specific PBFs essential for the elfin-woods warbler 
from studies of its habitat, ecology, and life history as described 
below. Additional information can be found in the proposed listing rule 
(80 FR 58674; September 30, 2015). We have determined that the 
following PBFs are essential to the conservation of the elfin-woods 
warbler.
Space for Individual and Population Growth and for Normal Behavior
    The elfin-woods warbler is an endemic Puerto Rican bird with a very 
limited distribution, and it is typically observed in forested habitats 
with closed canopy and well-developed understory in higher elevations. 
Based on the best available information, there are only two known 
populations, one in eastern and one in western Puerto Rico. The eastern 
population occurs at El Yunque National Forest (EYNF) located within 
the Sierra de Luquillo mountains. The species' primary habitat at EYNF 
consists of the dwarf forest (Kepler and Parkes 1972, pp. 3-5) and the 
Palo Colorado forest (Wiley and Bauer 1985, pp. 12-18). The dwarf 
forest falls within the lower montane rain forest life zone (Ewel and 
Whitmore 1973, p. 49). It is found on exposed peaks with short, stunted 
vegetation above 900 meters (m) (2,952 feet (ft)) in elevation (Weaver 
2012, p. 58). The dwarf forest is characterized by a single story of 
trees that range from 1 to 6 m (3 to 19 ft) in height, depending on 
exposure (Weaver 2012, p. 58). However, trees located on rocky summits 
are limited to 2 to 3 m (6 to 10 ft) in height. Although no tree 
species is confined to this type of forest, only a few species, such as 
Podocarpus coriaceus (no common name), Ocotea spathulata 
(nemoc[aacute]), and Ilex sintenisii (no common name), are adapted to 
survive on the exposed summits of this forest (Weaver 2012, p. 58). The 
dwarf forest is also characterized by the abundance of mosses, 
epiphytes, and liverworts that cover the majority of the forest surface 
(Lugo 2005, p. 514). The Palo Colorado forest occurs on gentle slopes 
within the lower montane wet and lower montane rain forest life zones, 
approximately between 600 and 900 m (1,968 and 2,952 ft) in elevation 
(Weaver 2012, p. 1; U.S. Forest Service (USFS), no date). This forest 
type mainly consists of fast-growing trees with heights not exceeding 
more than 24 m (78 ft) (Lugo 2005, p. 506). This forest type is 
essentially an upland swamp of short-statured trees with shallow root 
systems (USFS, not date). Some of the most common tree species are 
Cyrilla racemiflora (Palo Colorado), Prestoea montana (Sierra palm), 
Ocotea spathulata, and Croton poecilanthus (sabin[oacute]n) (Weaver 
2012, p. 55). The understory of the Palo Colorado forest is dominated 
by grasses, bromeliads, ferns, and sedges (Lugo 2005, p. 508).
    The western population of the elfin-woods warbler is located within 
the Maricao Commonwealth Forest (MCF) and adjacent agricultural lands. 
The MCF is located within the Cordillera Central (central mountain 
range) of Puerto Rico. The primary habitat of the western population 
consists of the Podocarpus forest, exposed ridge woodland, and timber 
plantation forests (Gonz[aacute]lez 2008, pp. 15-16). The Podocarpus 
forest is located on the slopes and highest peaks (600-900 m (1,968-
2,952 ft)) within the lower montane wet forest life zone (DNR 1976, p. 
185; Ewel and Whitmore 1973, p. 41). At the MCF, this type of forest 
grows on deep serpentine soils and is dominated by Podocarpus coriaceus 
trees; a continuous closed canopy of approximately 20 m (66 ft) of 
height; and a well-developed understory composed of tree ferns (Cyathea 
spp.), Sierra palm, and vines (Tossas and Delannoy 2001, pp. 47-53; 
Anad[oacute]n-Irizarry 2006, p. 53; Gonz[aacute]lez 2008, pp. 15-16). 
The exposed ridge woodland forest is found in valleys, slopes, and 
shallow soils with a more or less continuous canopy (Gonz[aacute]lez 
2008, pp. 15-16). These forest associations are found at elevations 
ranging from 550 to 750 m (1,804 to 2,460 ft) within the subtropical 
wet forest life zone (DNR 1976, p. 185; Ricart-Pujals and 
Padr[oacute]n-V[eacute]lez 2010, p. 9). The timber plantation forest is 
found in elevations ranging from 630 to 850 m (2,066 to 2,788 ft) 
within the subtropical wet forest and the subtropical moist forest life 
zones (DNR 1976, p. 185). This habitat is dominated by Calophyllum 
calaba (Mar[iacute]a trees), Eucalyptus robusta (eucalyptus), and Pinus 
caribaea (Honduran pine) planted in areas that were deforested for 
agriculture (Delannoy 2007, p. 9; Gonz[aacute]lez 2008, p. 5).
    In the privately owned lands adjacent to the MCF, the species has 
been reported mainly within secondary forests (both young and mature 
secondary forests) and shade-grown coffee plantations (Gonz[aacute]lez 
2008, pp. 15-16). The young secondary forests are less than 25 years 
old with an open canopy of approximately 12-15 m (40-50 ft) in height 
(Gonz[aacute]lez 2008, p. 6). These forests are found within the 
subtropical moist and subtropical wet forest life zones at elevations 
ranging from 300 to 750 m (984 to 2,460 ft) (Gonz[aacute]lez 2008, p. 
59; Puerto Rico Planning Board 2015, no page number), and cover 
approximately 98 percent of the MCF (DNR 1976, p. 185). The understory 
is well-developed and dominated by grasses, vines, and other early 
successional species (Gonz[aacute]lez 2008, p. 6). Mature secondary 
forests are over 25 years old, developing in humid and very humid, 
moderate to steep slopes. These forests are characterized by a closed 
canopy of approximately 20-30 m (66-100 ft) in height and sparse to 
abundant understory (Gonz[aacute]lez 2008, p. 6). The shade-grown 
coffee plantations are covered with tall mature trees, dominated mostly 
by Inga vera (guaba), Inga laurina (guam[aacute]), Andira inermis 
(moca), and Guarea guidonia (guaraguao) trees, reaching 15-20 m (50-66 
ft) in height, with an open understory without grasses (Gonz[aacute]lez 
2008, p. 6). These shade-grown coffee plantations, located adjacent to 
the MCF at elevations between 300 and 600 m (984 and 1,968 ft), extend 
the vegetation cover and provide habitat for the species 
(Gonz[aacute]lez 2008, p. 59).
    Limited information exists about the species' nesting sites and 
behavior. However, it is known that the elfin-woods warbler utilizes 
these forested habitats for its nest construction. According to the 
habitat suitability model developed for the species, all of the 
habitats described above occur within the intermediate to very high 
adequacy category (Col[oacute]n-Merced 2013, p. 57). This model was 
developed based on a combination of elevation and vegetation cover from 
areas where the species is known to occur. In addition, as mentioned 
above, the species appears to be associated with high elevations and is 
seldom observed in elevations lower than 300 m (984 ft). The habitat 
types identified above are the only habitats that the species is known 
to occupy and use for normal behavior and that support the elfin-woods 
warbler's life-history processes. Thus, the

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protection and maintenance of these forested habitat features are 
essential for rearing, growth, foraging, migration, and other normal 
behaviors of the species.
    Therefore, based on the available information describing the 
habitat used by the elfin-woods warbler, we identified the dwarf, Palo 
Colorado, Podocarpus, exposed ridge woodland, and timber plantation 
forests; secondary forests; and shade-grown coffee plantations as PBFs 
essential to the conservation of the species.
Cover or Shelter
    As described above in ``Space for Individual and Population Growth 
and for Normal Behavior,'' the elfin-woods warbler occurs in higher 
densities within the dwarf, Palo Colorado, Podocarpus, exposed ridge 
woodland, and timber plantation forests; secondary forests; and shade-
grown coffee plantations (Delannoy 2007, p. 14; Anad[oacute]n-Irizarry 
2006, p. 23; Gonz[aacute]lez 2008, pp. 15-16; Arendt et al. 2013, p. 
8). The vegetation association and structure (i.e., tree species and 
forest structure) of these forest types provide cover for nesting and 
the rearing of offspring (see ``Sites for Breeding, Reproduction, or 
Rearing (or Development) of Offspring,'' below). Therefore, dwarf, Palo 
Colorado, Podocarpus, exposed ridge woodland, and timber plantation 
forests; secondary forests; and shade-grown coffee plantations provide 
cover and shelter, and are PBFs essential for the persistence and 
survival of the elfin-woods warbler.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    There is little quantitative information about the elfin-woods 
warbler's breeding, reproduction, and offspring development. However, 
based on the best available information, shaded and forested corridors 
are features that are essential to accommodate the species' normal 
behaviors including breeding, reproduction, and rearing. The elfin-
woods warbler's breeding occurs between March and June (Raffaele et al. 
1998, p. 406). The first elfin-woods warbler nest was found in 1985 at 
EYNF (Arroyo-V[aacute]zquez 1992, p. 362). At that time, no detailed 
information on the species' breeding biology was gathered (Arroyo-
V[aacute]zquez 1992, p. 362). Later, Arroyo-V[aacute]zquez (1992) found 
two elfin-woods warbler nests in the MCF area. Both nests were found 
within the Podocarpus forest, placed in trees among dry leaf litter 
trapped in vegetation or vines at heights between 1.3 and 7.6 m (4.3 
and 25.0 ft) (Arroyo-V[aacute]zquez 1992, pp. 362-364). Raffaele et al. 
(1998, p. 406) described the species' nest as a compact cup, usually 
close to the trunk and well hidden among epiphytes of small trees. 
Clutch size is usually two to three eggs, but there have been 
observations of nests that contain broods of up to four nestlings 
(Raffaele et al. 1998, p. 406; Rodr[iacute]guez-Mojica 2004, p. 22). In 
2004, Rodr[iacute]guez-Mojica (2004, p. 22) reported the first nesting 
event in a cavity of a rotten Cyrilla racemiflora stump in the MCF 
area. The nest was placed about 7 m (23 ft) above ground and 6 
centimeters (cm) (2 inches (in)) deep from the lower border of the 
irregular rim of the stump. Nesting events in cavities are not a common 
behavior of warblers, either in the tropics or in North America 
(Rodr[iacute]guez-Mojica 2004, p. 22). Therefore, the discovery of a 
warbler nest in a tree cavity is significant, as no other warblers have 
been reported using such a site (Rodr[iacute]guez-Mojica 2004, p. 23).
    Therefore, based on the above information, we identified the 
Podocarpus and the Palo Colorado forest associations (shaded and 
forested corridors) as PBFs essential to the conservation of the elfin-
woods warbler as they provide habitat for breeding, reproduction, and 
rearing.
    In summary, the PBFs essential for the conservation of the elfin-
woods warbler are:
    1. Wet and rain montane forest types:
    a. Podocarpus forest at elevations between 600 and 900 m (1,968 and 
2,952 ft) with continuous closed canopy of 20 m (66 ft) in height, 
dominated by Podocarpus coriaceus trees with well-developed understory.
    b. Dwarf forest at elevations above 900 m (2,952 ft) with a single 
story of trees between 1 and 6 m (3 and 19 ft) in height, with an 
understory of mosses, epiphytes, and liverworts.
    c. Palo Colorado forest at elevations between 600 and 900 m (1,968 
and 2,952 ft) with a closed canopy of approximately 20 m (66 ft) and an 
understory dominated by grasses, ferns, bromeliads, and sedges.
    2. Forested habitat areas that contain:
    a. Active shade-grown coffee plantations or forested agricultural 
lands dominated primarily by native vegetation; or
    b. Abandoned coffee plantations or agricultural lands with native 
forest cover and a closed canopy.
    3. Forested habitat (at elevations between 300 and 850 m (984 and 
2,788 ft)) not contained within the habitats described in PBF 1 or PBF 
2:
    a. Exposed ridge woodland forest found in valleys, slopes, and 
shallow soils with a more or less continuous canopy at elevations 
ranging from 550 to 750 m (1,804 to 2,460 ft);
    b. Timber plantation forest at elevations ranging from 630 to 850 m 
(2,066 to 2,788 ft); or
    c. Secondary forests dominated by native tree species with a closed 
canopy of approximately 20-30 m (66-100 ft) in height at elevations 
ranging from 300 to 750 m (984 to 2,460 ft).

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 PBFs which are essential to the conservation of the 
species and which may require special management considerations or 
protection.
    The occupied units we are proposing to designate as critical 
habitat for the elfin-woods warbler will require some level of 
management to address the current and future threats to the PBFs. The 
proposed Maricao unit contains privately owned agricultural lands in 
which various activities may affect one or more of the PBFs. The 
features of this unit essential to the conservation of this species may 
require special management considerations or protection to reduce the 
following threats or potential threats that may result in changes in 
the composition or abundance of vegetation inside this unit: Loss, 
fragmentation, and degradation of habitat due to unsustainable 
agricultural practices; hurricanes; and human-induced fires. The 
features of the El Yunque unit may require special management 
considerations or protection to reduce threats or potential threats 
from hurricanes and human-induced fires, which may be exacerbated by 
the effects of climate change.
    Management activities that could ameliorate these threats or 
potential threats include but are not limited to: The candidate 
conservation agreement (CCA) signed in 2014 among the Service, U.S. 
Forest Service, and Puerto Rico Department of Natural and Environmental 
Resources (PRDNER) to implement conservation practices for the benefit 
of the elfin-woods warbler and their habitat in EYNF and MCF (USFWS 
2014); implementation of conservation agreements with private land 
owners to restore habitat, and to minimize habitat disturbance, 
fragmentation, and destruction; and development and implementation of 
management plans for other protected lands where the species is found.

[[Page 40637]]

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 occupied areas at the time of listing that 
contain the features essential to the conservation of the species. We 
also consider whether designating additional areas--outside those 
currently occupied--are essential for the conservation of the species.
    Because of the vulnerability associated with small populations, 
limited distributions, or both, conservation of species such as the 
elfin-woods warbler should include the protection of both existing and 
potential habitat, and the establishment of new populations to reduce 
or eliminate such vulnerability. Therefore, for the elfin-woods 
warbler, in addition to areas occupied by the species at the time of 
listing, we also are proposing to designate habitat outside the 
geographical area occupied by the species at the time of listing that 
was historically occupied, but is presently unoccupied, because it is 
essential for the conservation of the species.
    Sources of data for the elfin-woods warbler and its habitat include 
reports on assessments and surveys throughout the species' range, peer-
reviewed scientific and academic literature, habitat suitability 
models, personal communications with the species experts (e.g., 
Col[oacute]n-Merced 2013; Gonz[aacute]lez 2008; Anad[oacute]n-Irizarry 
2006; Delannoy 2007; Arroyo-V[aacute]zquez 1992; P[eacute]rez-Rivera 
2014, pers. comm.); and information from Service biologists. Other 
sources include databases maintained by Commonwealth and Federal 
agencies regarding Puerto Rico (such as elevation data, land cover 
data, aerial imagery, protected areas, and U.S. Geological Survey 
(USGS) topographic maps). Critical habitat units were then mapped using 
ArcMap version 10 (Environmental Systems Research Institute, Inc.), a 
geographic information system (GIS) program.
    To further refine the boundaries, we used an existing elfin-woods 
warbler habitat suitability model (Col[oacute]n-Merced 2013, p. 51). 
This model utilized variables such as elevation and vegetation cover to 
predict suitable habitat for this species in Puerto Rico (Col[oacute]n-
Merced 2013, p. 45). This model has been validated in several locations 
in Puerto Rico (BirdLife and SOPI, final report in progress).
    In order to identify essential habitat within private lands 
adjacent to the MCF, we established a buffer zone of 500 m (0.31 mile 
(mi)) from the boundary line of the MCF to include forested areas in 
abandoned and active shade-grown coffee plantations where the elfin-
woods warbler has been reported on the north, east, and west sides of 
the forest (Gonz[aacute]lez 2008, p. 59). We used 500 m (0.31 mi) as 
our buffer zone because our best understanding of the available 
information (e.g., spatial data and on-the-ground data) is that this 
area encompasses suitable habitat that supports the conservation of the 
elfin-woods warbler.

Areas Occupied at the Time of Listing

    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). The elfin-woods warbler tends 
to exhibit high site-fidelity (Anad[oacute]n-Irizarry 2006, p. 6; Waide 
1995, p. 11). However, the species can disperse to take advantage of 
changing conditions through space and time (e.g., during hurricanes; 
Waide 1995, p. 16).
    The proposed critical habitat designation focuses on occupied 
forested areas within the species' historical range containing the PBFs 
that will allow for the maintenance and expansion of existing 
populations and for possible new populations. Two areas meet the 
definition of areas occupied by the species at the time of listing: (1) 
EYNF; and (2) MCF and adjacent private lands to the north, east, and 
west.

Areas Outside of the Geographic Range at the Time of Listing

    For areas not occupied by the species at the time of the proposed 
listing (September 30, 2015), we must demonstrate that the areas are 
essential for the conservation of the species. To determine if these 
areas are essential for the conservation of the elfin-woods warbler, we 
considered:
     The importance of the area to the overall status of the 
species to prevent extinction and contribute to the species' 
conservation;
     Whether the area contains the necessary habitat to support 
the species;
     Whether the area provides connectivity between occupied 
sites for genetic exchange; and
     Whether a population of the species could be reestablished 
in the area.
    The Carite Commonwealth Forest (CCF) is within the historical range 
of the elfin-woods warbler, within the Sierra de Cayey mountains in 
southeast Puerto Rico (Silander et al. 1986, p. 178); the Sierra de 
Cayey mountains are connected to the Cordillera Central mountains, 
which extend from Aibonito in the east to Maricao in the west of Puerto 
Rico (Monroe 1980, p. 16). However, the species has not been reported 
in CCF in recent years (Anad[oacute]n-Irizarry 2006, p. 34; 
P[eacute]rez-Rivera 2014, pers. comm.; Aide and Campos 2016).
    The CCF has been managed for conservation by the PRDNER since 1975 
(previously Department of Natural Resources (DNR); DNR 1976, p. 169). 
This forest covers about 2,695 ha (6,660 ac), and ranges between 250 
and 903 m (820 and 2,962 ft) in elevation (DNR 1976, p. 168). The mean 
annual precipitation is 225 cm (88.5 in), and the mean temperature is 
22.7 degrees Celsius ([deg]C) (72.3 degrees Fahrenheit ([deg]F)) (DNR 
1976, p. 169; Silander et al. 1986, p. 183).
    The CCF contains the following forest types: Dwarf forest, Palo 
Colorado forest, timber plantation forest, and secondary forests. These 
are the same forest types used by the elfin-woods warbler in EYNF and 
MCF. These forest types are located within the same life zones in CCF 
as they are in EYNF and MCF (Ewel and Whitmore 1973, p. 74). The dwarf 
forest is found on exposed peaks and ridges of Cerro La Santa, above 
880 m (2,887 ft) in elevation, occupying approximately 10.1 ha (24.9 
ac) of the forest (Silander et al. 1986, p. 178). The dwarf forest 
vegetation is characterized by gnarled trees less than 7 m (23 ft) tall 
(Ewel and Whitmore 1973, p. 45). This habitat is dominated by Tabebuia 
schumanniana (roble colorado), Tabebuia rigida (roble de sierra), 
Ocotea spathulata, and Henriettea squamulosum (no common name) (Weaver 
et al. 1986, p. 80; Silander et al. 1986, p. 191). The Palo Colorado 
forest occupies 252.9 ha (625 ac) of the CCF (Silander et al. 1986, p. 
188). This forest type is within the upper montane forest in slopes and 
mountain peaks at elevations from 700 to 850 m (2,297 to 2,788 ft). The 
most common tree species are Inga fagifolia (no common name), 
Micropholis chrysophylloides (no common name), Prestoea montana, and 
Cyrilla racemiflora. Tree height varies from 14 to 15 m (46 to 50 ft) 
at lower slopes, and

[[Page 40638]]

from 6 to 8 m (20 to 26 ft) at mountain peaks (Silander et al. 1986, p. 
188). The timber plantation forest occupies about 400.5 ha (989.0 ac) 
of the CCF (Silander et al. 1986, p. 188). Timber plantation forests 
are dominated by Eucalyptus robusta and Calophyllum antillanum (no 
common name) (Silander et al. 1986, p. 196). The secondary forest 
occupies 11.3 ha (28.0 ac) of the CCF (Silander et al. 1986, p. 188).
    Although studies conducted by Anad[oacute]n-Irizarry (2006, 2014) 
between 2003-2004 and 2012-2013 failed to detect the species within the 
CCF, she suggested the possibility that the species may still be 
present in isolated pockets of forest that were not searched during the 
studies (Delannoy 2007, p. 22). The apparent persistent and relatively 
sedentary behavior of this species, in inhabiting certain small and 
isolated pockets of the forest, might have led these authors to suggest 
that CCF may harbor undetected elfin-woods warblers (Anad[oacute]n-
Irizarry 2006, p. 54; Delannoy 2007, pp. 22-23; P[eacute]rez-Rivera 
2014, pers. comm.). However, surveys contracted by the Service and 
conducted between March and April 2016, did not detect the species 
within the CCF and adjacent private lands (Aide and Campos 2016). In 
any case, we still believe that CCF contains habitat that may be 
suitable for the elfin-woods warbler due to its similarity in 
elevation, climatic conditions, and vegetation associations with EYNF 
and MCF (Col[oacute]n-Merced 2013, p. 57). This area contains habitat 
with ``intermediate to very high adequacy'' (favorable to optimal 
combination of elevation and vegetation cover regarding the known 
elfin-woods warbler habitat) according to the habitat suitability model 
for the species (Col[oacute]n-Merced 2013, p. 57).
    The CCF provides the necessary habitat to support the elfin-woods 
warbler in the easternmost part of the Cordillera Central. The presence 
of suitable habitat characteristics and historic occurrence of the 
species within the CCF increase the opportunity for future 
reestablishment of a population of elfin-woods warblers in this forest. 
In addition, the connectivity between MCF and CCF through the 
Cordillera Central is expected to result in genetic exchange between 
the existing MCF populations and CCF populations that may be 
reestablished in the future. It should be noted that while there is 
connectivity between MCF and CCF, the EYNF is within the Sierra de 
Luquillo mountains with lower elevation and development between the 
mountain ranges that significantly reduces connectivity between CCF and 
EYNF. For the above-mentioned reasons, we conclude that suitable 
habitat within the CCF meets the four considerations described above, 
and is therefore essential for the conservation of the elfin-woods 
warbler.
    In summary, we are proposing to designate as critical habitat two 
units that we have determined are occupied at the time of listing and 
contain sufficient elements of PBFs to support life-history processes 
essential to the conservation of the species, and one unit outside of 
the geographical area occupied at the time of listing that we have 
determined is essential for the conservation of the species. Some units 
contain all of the identified elements of PBFs and support multiple 
life-history processes, and some units contain only some of those 
elements.
    The proposed critical habitat designation is defined by the maps, 
as modified by any accompanying regulatory text, presented at the end 
of this document in the Proposed Regulation Promulgation section. We 
include more detailed information on the boundaries of the proposed 
critical habitat designation in the individual unit descriptions below. 
We will make the coordinates, plot points, or both on which each map is 
based available to the public on https://www.regulations.gov at Docket 
No. FWS-R4-ES-2016-0002, on our Internet site at https://www.fws.gov/caribbean, and at the field office responsible for the designation (see 
FOR FURTHER INFORMATION CONTACT, above).
    When determining proposed 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 
PBFs for the elfin-woods warbler. 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. Any 
such lands inadvertently left inside critical habitat boundaries shown 
on the maps of this proposed rule have been excluded by text in the 
proposed rule and are not proposed for designation as critical habitat. 
Therefore, if the critical habitat is finalized as proposed, a Federal 
action involving these lands would not trigger section 7 consultation 
with respect to critical habitat and the requirement of no adverse 
modification unless the specific action would affect the PBFs in the 
adjacent critical habitat.

Proposed Critical Habitat Designation

    We are proposing to designate approximately 10,977 ha (27,125 ac) 
in three units as critical habitat for the elfin-woods warbler: Unit 1: 
Maricao, Unit 2: El Yunque, and Unit 3: Carite. Two units (Marico and 
El Yunque) are currently occupied and one unit (Carite) is currently 
unoccupied. Table 1 shows the land ownership and approximate size of 
each of the proposed critical habitat units.

           Table 1--Location, Occupancy Status, Ownership, and Size (Hectares (Acres)) of Proposed Elfin-Woods Warbler Critical Habitat Units.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Land ownership in hectares (acres)
              Unit                     Occupied          Municipality    ------------------------------------------------------------     Total area
                                                                                Federal          Common-wealth          Private        hectares (acres)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1: Maricao......................  Yes...............  Maricao, San        0.................  3,442 (8,506).....  1,663 (4,109).....  5,105 (12,615).
                                                       Germ[aacute]n,
                                                       Sabana Grande,
                                                       Yauco.
2: El Yunque....................  Yes...............  R[iacute]o Grande,  4,626 (11,430)....  0.................  0.................  4,626 (11,430).
                                                       Canovanas, Las
                                                       Piedras, Naguabo,
                                                       Ceiba.
3: Carite.......................  No................  Cayey, San          0.................  1,246 (3,080).....  0.................  1,246 (3,080).
                                                       Lorenzo, Guayama,
                                                       Patillas.
                                                                         -------------------------------------------------------------------------------
    Totals......................  ..................  ..................  4,626 (11,430)....  4,688 (11,586)....  1,663 (4,109).....  10,977 (27,125).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


[[Page 40639]]

    We present brief descriptions of all units below.
Unit 1: Maricao
    Unit 1 consists of a total of 5,105 ha (12,615 ac). Approximately 
3,442 ha (8,506 ac) are owned by the Commonwealth and managed by the 
PRDNER and 1,663 ha (4,109 ac) are in private ownership. This unit is 
located within the municipalities of Maricao, San Germ[aacute]n, Sabana 
Grande, and Yauco. This unit encompasses the majority of the Maricao 
Commonwealth Forest. The unit is located north of State Road PR-2, 
south of State Road PR-105, and approximately 105 kilometers (km) (65 
miles (mi)) west of the International Airport Luis Mu[ntilde]oz Marin. 
This unit is within the geographical area occupied by the elfin-woods 
warbler at the time of listing. This unit contains all of the PBFs. The 
PBFs in this unit may require special considerations or protection to 
address the following threats or potential threats that may result in 
changes in the composition or abundance of vegetation within this unit: 
Loss, fragmentation, and degradation of habitat due to unsustainable 
agricultural practices; hurricanes; and human-induced fires. This unit 
represents a core population for the species and will likely contribute 
to range expansion of the elfin-woods warbler.
Unit 2: El Yunque
    Unit 2 consists of 4,626 ha (11,430 ac) of federally owned land 
managed by the U.S. Forest Service (EYNF). It is located within the 
municipalities of R[iacute]o Grande, Canovanas, Las Piedras, Naguabo, 
and Ceiba. The unit is located within EYNF located east of State Road 
PR-186, north of State Road PR-31, and approximately 24 km (15 mi) east 
of the International Airport Luis Mu[ntilde]oz Marin. This unit is 
within the geographical area occupied by the elfin-woods warbler at the 
time of listing. This unit contains PBFs 1(b) and 1(c) (see Physical or 
Biological Features, above). The PBFs in this unit may require special 
considerations or protection to reduce threats or potential threats 
from hurricanes and human-induced fires, which may be exacerbated by 
the effects of climate change. This unit represents a core population 
of the species and helps to maintain the elfin-woods warbler's 
geographical range.
Unit 3: Carite
    Unit 3 consists of 1,246 ha (3,080 ac) of lands owned by the 
Commonwealth and managed by the PRDNER. It is located within the 
municipalities of Cayey, San Lorenzo, Guayama, and Patillas. The unit 
is located within the CCF west of State Road PR-7740 and State Road PR-
184 that runs within the CCF, and approximately 37 km (23 mi) south of 
the International Airport Luis Mu[ntilde]oz Marin. This unit was not 
occupied by the elfin-woods warbler at the time of listing. As 
discussed above (see Criteria Used to Identify Critical Habitat), this 
unit provides an opportunity for expansion of the species' documented 
current range into an area that was previously occupied; this potential 
expansion will help to increase the redundancy and resiliency of the 
species and is therefore essential for the conservation of the species.

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. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    On February 11, 2016, the Service and National Marine Fisheries 
Service published a final rule in the Federal Register (81 FR 7214) 
revising the definition of ``destruction or adverse modification'' in 
the implementing regulations at 50 CFR 402.02. Destruction or adverse 
modification is defined as ``a direct or indirect alteration that 
appreciably diminishes the value of critical habitat for the 
conservation of a listed species'' that ``may include, but are not 
limited to, those that alter the physical or biological features 
essential to the conservation of a species or that preclude or 
significantly delay development of such features.''
    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 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) 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 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 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently,

[[Page 40640]]

Federal agencies sometimes may need to request reinitiation of 
consultation with us on actions for which formal consultation has been 
completed, if those actions with discretionary involvement or control 
may affect subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that result in a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for the conservation of the elfin-woods warbler. Such 
alterations may include, but are not limited to, those that alter the 
PBFs essential to the conservation of these species or that preclude or 
significantly delay development of such features. As discussed above, 
the role of critical habitat is to support PBFs 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 may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the elfin-woods warbler. These activities include, but 
are not limited to:
    1. Actions that would significantly alter the structure and 
function of active shade-grown coffee plantations, abandoned coffee 
plantations, and/or agricultural lands with native forest cover and a 
closed canopy. These actions or activities may include, but are not 
limited to, deforestation, conversion of shade-grown coffee to sun-
grown coffee plantations, and unsustainable agricultural practices 
(i.e., agricultural and silvicultural practices other than sun- to 
shade-grown coffee conversion, and herbicide and pesticide use outside 
coffee plantations). These actions could degrade the habitat used by 
the elfin-woods warbler for feeding, reproducing, and sheltering.
    2. Actions that would significantly alter the vegetation structure 
in and around the Podocarpus, dwarf, or Palo Colorado forests. These 
actions or activities may include, but are not limited to, habitat 
modification (e.g., deforestation, fragmentation, loss, introduction of 
nonnative species, expansion or construction of communication 
facilities, expansion of recreational facilities, pipeline 
construction, bridge construction, road rehabilitation and maintenance, 
habitat management), Federal and State trust species reintroductions, 
trail maintenance, camping area maintenance, research, repair and 
restoration of landslides, and any other activities that are not 
conducted in accordance with the consultation and planning requirements 
for listed species under section 7 of the Act. These activities could 
alter the habitat structure essential to the elfin-woods warbler and 
may create suitable conditions for other species that compete with or 
prey upon the elfin-woods warbler or displace the species from its 
habitat.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act provides that: ``The Secretary 
shall not designate as critical habitat any lands or other geographical 
areas owned or controlled by the Department of Defense, 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 
proposed for designation.'' There are no Department of Defense lands 
with a completed INRMP within the proposed 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 that determination, 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.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. In the case of 
the elfin-woods warbler, the benefits of critical habitat include 
public awareness of the presence of the elfin-woods warbler and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection for the elfin-woods warbler due to 
protection from adverse modification or destruction of critical 
habitat. In practice, situations with a Federal nexus exist primarily 
on Federal lands or for projects undertaken by Federal agencies.
    We are not proposing to exclude any areas from critical habitat. 
However, the final decision on whether to exclude any areas will be 
based on the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a DEA concerning the proposed critical habitat 
designation, which is available for review and comment (see ADDRESSES, 
above).

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 proposed. 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 proposed 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

[[Page 40641]]

designation of critical habitat (e.g., under the Federal listing as 
well as other Federal, State, and local regulations). The baseline, 
therefore, 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 would not be 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 an optional 4(b)(2) exclusion analysis.
    For this proposed designation, we developed an incremental effects 
memorandum (IEM) considering the probable incremental economic impacts 
that may result from this proposed designation of critical habitat 
(USFWS 2015). 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 elfin-woods warbler (Abt Associates, Inc. 
2016). The purpose of the screening analysis is to filter out the 
geographic areas in which the critical habitat designation is unlikely 
to result in probable incremental economic impacts. In particular, the 
screening analysis considers baseline costs (i.e., absent critical 
habitat designation) and includes probable economic impacts where land 
and water use may 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. 
The screening analysis filters out particular areas of critical habitat 
that are already subject to such protections and are, therefore, 
unlikely to incur incremental economic impacts. 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. The screening analysis also 
assesses whether units that are unoccupied by the species may require 
additional management or conservation efforts as a result of the 
critical habitat designation for the species, which may incur 
incremental economic impacts. This screening analysis combined with the 
information contained in our IEM, constitute our draft economic 
analysis (DEA) of the proposed critical habitat designation for the 
elfin-woods warbler and is summarized in the narrative below.
    Executive Orders (E.O.) 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 impacted entities, where practicable and reasonable. We 
assess to the extent practicable the probable impacts, if sufficient 
data are available, to both directly and indirectly impacted entities. 
As part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely to be 
affected by the critical habitat designation. In our evaluation of the 
probable incremental economic impacts that may result from the proposed 
designation of critical habitat for the elfin-woods warbler, first we 
identified, in the IEM dated December 7, 2015, probable incremental 
economic impacts associated with the following categories of 
activities: forest management, silviculture/timber management, 
implementation of conservation/restoration practices, human-induced 
fire management, development or improvement of existing infrastructure 
(e.g., roads, water intakes, water pipelines, electric transmission 
lines), recreation facilities, agriculture, and single house 
development funded by the U.S. Department of Housing and Urban 
Development (HUD). We considered each industry or category 
individually.
    Additionally, we considered whether these activities have any 
Federal involvement. Critical habitat designation will not affect 
activities that do not have any Federal involvement; it only affects 
activities conducted, funded, permitted, or authorized by Federal 
agencies. In areas where the elfin-woods warbler is present, Federal 
agencies will already 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. If we finalize this proposed critical habitat 
designation, consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into that 
consultation process. Additionally, the Service extends this finding to 
unoccupied habitat, noting that ``any project modifications or 
conservation measures recommended to prevent adverse modification of 
the EWW CH will not differ from project modifications and conservation 
measures recommended to prevent the jeopardy of other federally listed 
co-occurring species in the area (e.g. Puerto Rican sharp-shinned hawk) 
(ABT Associate, Incorporated 2016, p. 11).'' These co-occurring species 
occupy areas that have been proposed as critical habitat for the EWW 
but are unoccupied by the species. Therefore, disproportionate impacts 
to any geographic area or sector are not likely as a result of this 
critical habitat designation.
    In our IEM, we attempted to clarify the distinction between the 
effects that would 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 elfin-
woods warbler's critical habitat. Because the designation of critical 
habitat for the elfin-woods warbler was proposed within several months 
of the proposed 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 would result solely from the 
designation of critical habitat. However, the following specific 
circumstances in this case help to inform our evaluation: (1) The 
essential PBFs identified for critical habitat are the same features 
essential for the life history requirements of the species, and (2) any 
actions that would result in sufficient harm or harassment to 
constitute jeopardy to the elfin-woods warbler would also likely 
adversely affect the essential PBFs 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 incremental economic impacts of this proposed designation of 
critical habitat.
    The proposed critical habitat designation for the elfin-woods 
warbler is approximately 10,977 ha (27,125 ac) within three units. Two 
of the units are occupied (89 percent of the total ha/ac) at the time 
of listing while one is not occupied (11 percent of the total ha/ac) at 
the time of listing (see Table 1, above). The proposed critical habitat 
designation consists of the following: Commonwealth lands (43 percent),

[[Page 40642]]

Federal lands (42 percent), and private lands (15 percent).
    Because the majority of the proposed critical habitat units are 
already managed for natural resource conservation, all proposed units 
have co-occurring federally listed species, and two of the three 
proposed units are occupied by the elfin-woods warbler, it is unlikely 
that costs will result from section 7 consultations considering 
critical habitat alone, consultations resulting in adverse 
modifications alone, or project modifications attributable to critical 
habitat alone. The only incremental costs predicted are the 
administrative costs due to additional consideration of adverse 
modification of critical habitat during section 7 consultations. Based 
on estimates from existing section 7 consultations on a surrogate 
listed species, the Puerto Rican sharp-shinned hawk, the DEA predicts 
that 5.4 technical assistance, 2.4 informal consultations, and 0.6 
formal consultations per year will consider critical habitat for the 
elfin-woods warbler.
    As a result of the critical habitat designation for the elfin-woods 
warbler, the PRDNER will incorporate the critical habitat under 
Commonwealth law through Appendix 2b under regulation 6766. This 
regulation introduces stricter requirements for critical, including a 
requirement to mitigate affected lands by a ratio of three to one. 
However, the DEA is unable to determine what, if any, incremental costs 
will result from this regulation because the Commonwealth regulation 
only applies to private agricultural lands where the Service already 
works to curb forest clearing. In addition, because there are other 
federally listed species in all units of the proposed critical habitat, 
the Service finds that the designation of critical habitat for the 
elfin-woods warbler is unlikely to lead to changes in permitting 
processes by Commonwealth or local agencies or other land managers.
    Stigma effects (the perceived effects of designating critical 
habitat) are likely to be minimal because in all proposed critical 
habitat units land managers already take measures to protect the elfin-
woods warbler. Namely, in Federal and Commonwealth land (85 percent of 
proposed critical habitat), an existing Candidate Conservation 
Agreement and a designation as a ``critical element'' under the 
National Heritage Program formalize conservation measures for the 
elfin-woods warbler. In private lands (15 percent of proposed critical 
habitat), stigma effects are likely to be very little because much of 
the land is agricultural with little possibility of future development. 
In addition, the Service has a history of working with these farmers in 
conservation programs that consider the elfin-woods warbler.
    Based on the finding that the critical habitat designation will 
have minimal impact on land use or other activities (i.e., there is 
little difference in the world due to the designation), the DEA 
concludes that benefits will also be minimal. Possible benefits, aside 
from the conservation of elfin-woods warbler, could include cultural 
heritage benefits and other non-use benefits. Due to limited data 
availability, however, the DEA does not monetize these benefits.
    We do not have sufficient data to indicate that any concentration 
of impacts to any geographic area or sector is likely at this time. 
While Unit 1 has slightly more projected annual section 7 consultations 
than any other unit, the incremental costs of these section 7 
consultations are likely to be very little. Other incremental costs, 
such as those that could occur due to stigma effects, could concentrate 
impacts in private critical habitat units compared to Federal and 
Commonwealth lands.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rule. We may 
revise the proposed rule or DEA to incorporate or address information 
we receive during the public comment period. In particular, we may 
exclude an area from critical habitat if we determine that the benefits 
of excluding the area outweigh the benefits of including the area, 
provided the exclusion will not result in the extinction of this 
species.

Exclusions

Exclusions Based on Economic Impacts

    The DEA did not identify any disproportionate costs that are likely 
to result from the designation. Consequently, the Secretary is not 
exercising her discretion to exclude any areas from this proposed 
designation of critical habitat for the elfin-woods warbler based on 
economic impacts.
    During the development of a final designation, we will consider any 
additional economic impact information received through the public 
comment period. Accordingly, areas may be excluded from the final 
critical habitat designation under section 4(b)(2) of the Act and our 
implementing regulations at 50 CFR 424.19.

Exclusions Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands where a national security impact might exist. In preparing this 
proposal, we have determined that the lands within the proposed 
designation of critical habitat for the elfin-woods warbler are not 
owned or managed by the Department of Defense or Department of Homeland 
Security, and, therefore, we anticipate no impact on national security. 
Consequently, the Secretary is not intending to exercise her discretion 
to exclude any areas from the proposed 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 the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
    We are not considering any exclusions at this time from the 
proposed designation under section 4(b)(2) of the Act based on 
partnerships management, or protection afforded by cooperative 
management efforts. Some areas within the proposed designation are 
included in management plans or other conservation agreements such as 
Service's Wildlife Conservation Extension Agreements with private 
landowners, Natural Resources Conservation Service's conservation 
contracts with private landowners, cooperative agreements with 
nongovernmental organizations (NGOs), and the CCA signed at the end of 
2014 among the Service, U.S. Forest Service, and PRDNER to implement 
conservation practices for the recovery of the elfin-woods warbler 
within EYNF and MCF.
    Although the initiatives with private landowners and NGOs promote 
the restoration and enhancement of elfin-woods warbler habitat adjacent 
to the EYNF and MCF, potential challenges such as limited resources and 
uncertainty about landowners' participation may affect the 
implementation of conservation practices that mitigate impacts of 
agricultural practices and ensure the conservation of the species' 
essential habitat. We do not anticipate any negative effects of 
designating critical habitat in areas where existing partnerships 
occur. Further, there are no

[[Page 40643]]

tribal lands in Puerto Rico. Therefore, we are not considering any 
exclusions at this time.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our critical habitat designation is based on scientifically sound 
data and analyses. We will invite these peer reviewers to comment 
during this public comment period.
    We will consider all comments and information we receive during the 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register (see DATES, above). Such requests must be sent to the address 
shown in the FOR FURTHER INFORMATION CONTACT section. We will schedule 
public hearings on this proposal, if any are requested, and announce 
the dates, times, and places of those hearings, as well as how to 
obtain reasonable accommodations, in the Federal Register and local 
newspapers at least 15 days before the hearing.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs 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 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 if 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.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are only required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself, and, therefore, are not required 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 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. Federal 
agencies are not small entities. Therefore, because no small entities 
are directly regulated by this rulemaking, the Service certifies that, 
if promulgated, the proposed critical habitat designation will not have 
a significant economic impact on a substantial number of small 
entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if promulgated, the proposed 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial 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 DEA, we found that the designation of this 
proposed critical habitat would not significantly affect energy 
supplies, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required. However, we will further evaluate this issue through the 
public review and comment period, and we will review and revise this 
assessment as warranted.

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 findings:

[[Page 40644]]

    1. This proposed rule would 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) through (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 impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    2. We do not believe that this rule would significantly or uniquely 
affect small governments because the majority of the proposed critical 
habitat units are already managed for natural resource conservation by 
the Federal government or the Commonwealth of Puerto Rico, and all 
proposed units have co-occurring federally listed species that are 
already being considered by the Commonwealth and municipalities for any 
actions proposed in the area. 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 elfin-woods warbler 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 and 
concludes that this designation of critical habitat for elfin-woods 
warbler would 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 proposed 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 proposed critical habitat designation 
with, appropriate State resource agencies in Puerto Rico. 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 PBFs of 
the habitat necessary to 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 these 
local governments in long-range planning (because these local 
governments 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 would 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 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.

Civil Justice Reform--Executive Order 12988

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the proposed rule does not unduly 
burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the species, 
the rule identifies the elements of PBFs essential to the conservation 
of the species. The designated areas of critical habitat are presented 
on maps, and the rule provides several options for the interested 
public to obtain more detailed location information, if desired.

[[Page 40645]]

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

    This proposed rule does not contain any new collections of 
information that require approval by OMB under the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.). This proposed rule will not 
impose recordkeeping or reporting requirements on State or local 
governments, individuals, businesses, or organizations. An agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act (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 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. As discussed above, there are no 
tribal lands in Puerto Rico.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    1. Be logically organized;
    2. Use the active voice to address readers directly;
    3. Use clear language rather than jargon;
    4. Be divided into short sections and sentences; and
    5. Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

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 proposed rulemaking are the staff 
members of the Caribbean Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--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.  17.95, amend paragraph (b) by adding an entry for ``Elfin-
woods Warbler (Setophaga angelae)'' in the same alphabetical order that 
the species appears in the table at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *
Elfin-Woods Warbler (Setophaga Angelae)
    (1) Critical habitat units for the elfin-woods warbler are in 
Puerto Rico. Critical habitat units are depicted on the maps in this 
entry.
    (2) Within the critical habitat units, the physical or biological 
features essential to the conservation of the elfin-woods warbler 
consist of three components:
    (i) Wet and rain montane forest types:
    (A) Podocarpus forest at elevations between 600 and 900 meters (m) 
(1,968 and 2,952 feet (ft)) with continuous closed canopy of 20 m (66 
ft) in height, dominated by Podocarpus coriaceus trees with well-
developed understory.
    (B) Dwarf forest at elevations above 900 m (2,952 ft) with a single 
story of trees between 1 and 6 m (3 and 19 ft) in height, with an 
understory of mosses, epiphytes, and liverworts.
    (C) Palo Colorado forest at elevations between 600 and 900 m (1,968 
and 2,952 ft) with a closed canopy of approximately 20 m (66 ft) and an 
understory dominated by grasses, ferns, bromeliads, and sedges.
    (ii) Forested habitat areas that contain:
    (A) Active shade-grown coffee plantations or forested agricultural 
lands dominated primarily by native vegetation; or
    (B) Abandoned coffee plantations or agricultural lands with native 
forest cover and a closed canopy.
    (iii) Forested habitat (at elevations between 300 and 850 m (984 
and 2,788 ft)) not contained within the habitats described in 
paragraphs (2)(i) and (2)(ii) of this entry:
    (A) Exposed ridge woodland forest found in valleys, slopes, and 
shallow soils with a more or less continuous canopy at elevations 
ranging from 550 to 750 m (1,804 to 2,460 ft);
    (B) Timber plantation forest at elevations ranging from 630 to 850 
m (2,066 to 2,788 ft); or
    (C) Secondary forests dominated by native tree species with a 
closed canopy of approximately 20-30 m (66-100 ft) in height at 
elevations ranging from 300 to 750 m (984 to 2,460 ft).
    (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 
[EFFECTIVE DATE OF FINAL RULE].
    (4) Critical habitat map units. 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, over a U.S. Department

[[Page 40646]]

of Agriculture (USDA) 2007 digital ortho photo mosaic, over a base of 
U.S. Geological Survey (USGS) digital topographic map quadrangle, and 
with the use of a digital landcover layer. The resulting critical 
habitat unit was then mapped using State Plane North American Datum 
(NAD) 83 coordinates. The maps in this entry, as modified by any 
accompanying regulatory text, establish the boundaries of the critical 
habitat designation. The coordinates, plot points, or both on which 
each map is based are available to the public at the Service's Internet 
site (https://www.fws.gov/caribbean), at https://www.regulations.gov at 
Docket No. FWS-R4-ES-2016-0002, 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:
    [GRAPHIC] [TIFF OMITTED] TP22JN16.000
    

[[Page 40647]]


    (6) Unit 1: Maricao; Maricao, San Germ[aacute]n, Sabana Grande, and 
Yauco Municipalities, Puerto Rico.
    (i) General description: Unit 1 consists of a total of 5,105 
hectares (ha) (12,615 acres (ac)). Approximately 3,442 ha (8,506 ac) 
are owned by the Commonwealth and managed by the Puerto Rico Department 
of Natural and Environmental Resources, and 1,663 ha (4,109 ac) are in 
private ownership. The unit is located north of State Road PR-2, south 
of State Road PR-105, and approximately 105 kilometers (km) (65 miles 
(mi)) west of the International Airport Luis Mu[ntilde]oz Marin.
    (ii) Map of Unit 1 follows:
    [GRAPHIC] [TIFF OMITTED] TP22JN16.001
    
    (7) Unit 2: El Yunque; R[iacute]o Grande, Canovanas, Las Piedras, 
Naguabo, and Ceiba Municipalities, Puerto Rico.
    (i) General description: Unit 2 consists of 4,626 ha (11,430 ac) of 
federally owned land managed by the U.S. Forest Service (El Yunque 
National Forest). The unit is located within El Yunque National Forest, 
east of State Road PR-186, north of State Road PR-31, and approximately 
24 km (15 mi) east of the International Airport Luis Mu[ntilde]oz 
Marin.
    (ii) Map of Unit 2 follows:

[[Page 40648]]

[GRAPHIC] [TIFF OMITTED] TP22JN16.002

    (8) Unit 3: Carite; Cayey, San Lorenzo, Guayama, and Patillas 
Municipalities, Puerto Rico.
    (i) General description: Unit 3 consists of 1,246 ha (3,080 ac) of 
lands owned by the Commonwealth and managed by the Puerto Rico 
Department of Natural and Environmental Resources. The unit is located 
within the Carite Commonwealth Forest west of State Road PR-7740 and 
State Road PR-184 that run within the Carite Commonwealth Forest, and 
approximately 37 km (23 mi) south of the International Airport Luis 
Mu[ntilde]oz Marin.
    (ii) Map of Unit 3 follows:

[[Page 40649]]

[GRAPHIC] [TIFF OMITTED] TP22JN16.003


[[Page 40650]]


* * * * *

    Dated: June 7, 2016.
Karen Hyun,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2016-14539 Filed 6-21-16; 8:45 am]
 BILLING CODE 4333-15-P