Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Catesbaea melanocarpa, 48883-48899 [06-7029]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 162 (Tuesday, August 22, 2006)]
[Proposed Rules]
[Pages 48883-48899]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-7029]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU76


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the endangered plant Catesbaea 
melanocarpa (no common name) under the Endangered Species Act of 1973, 
as amended (Act). In total, approximately 50 acres (ac) (20.2 hectares 
(ha)) fall within the boundaries of the proposed critical habitat 
designation for C. melanocarpa in one unit located in Christiansted, 
St. Croix, U.S. Virgin Islands. If made final, this proposal may result 
in additional requirements under section 7 of the Act for Federal 
agencies. No additional requirements are expected for non-Federal 
actions. The Service seeks comments on all aspects of this proposal 
from the public.

DATES: We will accept comments from all interested parties until 
October 23, 2006. We must receive requests for public hearings, in 
writing, at the address shown in the ADDRESSES section by October 6, 
2006.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information by mail or hand-
delivery to Edwin E. Mu[ntilde]iz, Field Supervisor, U.S. Fish and 
Wildlife Service, Caribbean Fish and Wildlife Office, Road 301 Km. 5.1, 
P.O. Box 491, Boquer[oacute]n, Puerto Rico 00622.
    2. You may send comments by electronic mail (e-mail) to marelisa_
rivera@fws.gov. Please see the Public Comments Solicited section below 
for file format and other information about electronic filing.
    3. You may fax your comments to 787-851-7440.
    4. You may submit comments via the Federal E-Rulemaking Portal at 
https://www.regulations.gov.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Caribbean Fish and Wildlife Office, Road 301 Km. 5.1, 
Boquer[oacute]n, Puerto Rico (telephone 787-851-7297).

FOR FURTHER INFORMATION CONTACT: Marelisa Rivera, Caribbean Fish and 
Wildlife Office (see ADDRESSES), telephone 787-851-7297 ext. 231; 
facsimile 787-851-7440.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 
et seq.), including whether the benefit of designation will outweigh 
any threats to the species due to designation;
    (2) Specific information on the amount and distribution of 
Catesbaea melanocarpa habitat, including areas occupied by C. 
melanocarpa at the time of listing and containing features essential to 
the conservation of the species, and areas not occupied at the listing 
that are essential to 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) We have not included lands containing features essential to the 
conservation of C. melanocarpa within the Gu[acute]nica and 
Sus[uacute]a Commonwealth Forests in Puerto Rico in this proposed 
designation because we believe that the Commonwealth Forests provide 
conservation management and protection for these features such that the 
specific areas do not meet the definition of critical habitat. We are 
seeking specific comments related to:
    (a) Whether our determination to not include these specific areas 
in critical habitat is appropriate, and
    (b) if our determination is not appropriate, then how should we 
define the specific areas essential to conservation of this plant.
    (5) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities;
    (6) Whether our approach to designating critical habitat could be 
improved or modified in any way to

[[Page 48884]]

provide for greater public participation and understanding, or to 
assist us in accommodating public concerns and comments;
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit electronic comments to marelisa_rivera@fws.gov 
in ASCII file format and avoid the use of special characters or any 
form of encryption. Please also include ``Attn: Catesbaea melanocarpa'' 
in your e-mail subject header and your name and return address in the 
body of your message. If you do not receive a confirmation from the 
system that we have received your message, contact us directly by 
calling our Caribbean Fish and Wildlife Office at phone number 787-851-
7297.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. We will not consider anonymous comments, and we will 
make all comments available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the 
Caribbean Fish and Wildlife Office (see ADDRESSES).

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under section 4(b)(2) of the Act, there are significant 
limitations on the regulatory effect of designation under section 
7(a)(2) of the Act. In brief, (1) Designation provides additional 
protection to habitat only where there is a Federal nexus; (2) the 
protection is relevant only when, in the absence of designation, 
destruction or adverse modification of the critical habitat would take 
place (in other words, other statutory or regulatory protections, 
policies, or other factors relevant to agency decision-making would not 
prevent the destruction or adverse modification); and (3) designation 
of critical habitat triggers the prohibition of destruction or adverse 
modification of that habitat, but it does not require specific actions 
to restore or improve habitat.
    Currently, only 475 species or 36 percent of the 1,310 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,310 
listed species through conservation mechanisms such as listing, section 
7 consultations, the section 4 recovery planning process, the section 9 
protective prohibitions of unauthorized take, section 6 funding to the 
States, the section 10 incidental take permit process, and cooperative, 
non-regulatory efforts with private landowners. The Service believes 
that these measures may make the difference between extinction and 
survival for many species.
    In considering exclusions of areas proposed for designation, we 
evaluated the benefits of designation in light of Gifford Pinchot Task 
Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004) 
(hereinafter Gifford Pinchot). In that case, the Ninth Circuit 
invalidated the Service's regulation defining ``destruction or adverse 
modification of critical habitat.'' In response, on December 9, 2004, 
the Director issued guidance to be considered in making section 7 
adverse modification determinations. This proposed critical habitat 
designation does not use the invalidated regulation in our 
consideration of the benefits of including areas in this final 
designation. The Service will carefully manage future consultations 
that analyze impacts to designated critical habitat, particularly those 
that appear to be resulting in an adverse modification determination. 
Such consultations will be reviewed by the Regional Office prior to 
finalizing to ensure that an adequate analysis has been conducted that 
is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, the Service believes that 
additional agency discretion would allow our focus to return to those 
actions that provide the greatest benefit to the species most in need 
of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with limited ability to provide for public participation or 
to ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals, due to the risks associated 
with noncompliance with judicially imposed deadlines. This in turn 
fosters a second round of litigation in which those who fear adverse 
impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless and is very 
expensive, thus diverting resources from conservation actions that may 
provide relatively more benefit to imperiled species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.). These 
costs, which are not required for many other conservation actions, 
directly reduce the funds available for direct and tangible 
conservation actions.

Background

    We intend to discuss topics directly relevant to the designation of 
critical habitat in this proposed rule. For more

[[Page 48885]]

information on C. melanocarpa, including characteristics and life 
history, refer to the final listing rule published in the Federal 
Register on March 17, 1999 (64 FR 13116) and the final recovery plan 
(July 15, 2005).
    C. melanocarpa is a perennial spiny shrub of the Madder family 
(Rubiaceae). Most members of this family are found in the tropics. The 
genus Catesbaea consists of 10 or more other species of spiny shrubs 
and is generally confined to the Antilles, but some may extend into the 
Bahamas and the Florida Keys (Breckon and Kolterman 1993, p. 1). C. 
melanocarpa is found in both dry and moist forest life zones in the 
Caribbean on the island of Puerto Rico (PR) and in the U.S. Virgin 
Islands (USVI). The dry forest life zone in PR and USVI occupies about 
165,030 ha (407,798 acres) or 18 percent of PR and USVI. The moist 
forest life zone occupies 548,220 ha (1,354,681 acres) or 58 percent of 
PR and USVI.

Life History

    C. melanocarpa is a branching shrub that may reach approximately 
9.8 feet (ft) (3.0 meters (m)) in height. Spines are from 0.39 to 0.78 
inches (in) (1.00 to 2.00 centimeters (cm)) long. Leaves are small, 
from 0.19 to 1.0 in (5.00 to 25.00 millimeters (mm)) long, and 0.07 to 
0.58 in (2.00 to 15.00 mm) wide, often opposite. The flowers are white, 
solitary or paired, and almost lacking a stalk in the axils (angle 
formed by a leaf or branch with the stem) (Proctor 1991, p. 44).
    Biological and ecological information on C. melanocarpa is scarce. 
In July 1992, Breckon and Kolterman (1993, p. 2) measured stem height 
and basal diameter for the 24 individuals known from St. Croix. Stem 
height ranged from 0.36 to 9.91 ft (0.11 to 3.02 m) and averaged 2.59 
ft (0.79 m). Basal stem diameter ranged from 0.16 to 2.20 in (0.40 to 
5.60 cm). In December 1992, reproduction was checked, and while no 
flowers were observed, many adults (greater than 1.64 ft (0.50 m) in 
height) were in fruit (Breckon and Kolterman 1993, p. 2). In St. Croix, 
we observed the species with fruit in early March 2006.
    Only a few seed germination and propagation experiments have been 
conducted on C. melanocarpa (Breckon and Kolterman 1993, p. 2). In 
August 1988, seeds and plants were collected from the St. Croix 
location. Most of the transplanted seedlings have survived, and two 
have produced flowers and fruits. Of 57 seeds collected in December 
1990, 92 percent germinated, but only five of the seedlings survived. 
In 1993, two fruits were collected. Ten seeds were obtained from these 
two fruits, but none germinated. Two plants previously germinated from 
St. Croix seeds were donated to the Guanica Commonwealth Forest. These 
plants died before being planted. Fairchild Tropical Garden in Miami, 
Florida, collected seeds in 1994 or 1995 and had good germination and 
survival results (O'Reilly 2004).

Distribution and Abundance

    The historical and current range of this species includes Halfpenny 
Bay in St. Croix, USVI; Guanica and Sus[uacute]a Commonwealth Forests 
and Pe[ntilde]ones de Melones, PR; and Barbuda, Antigua, and Guadeloupe 
islands. Prior to 1995, C. melanocarpa was only known from 
Gu[aacute]nica, PR; St. Croix in the USVI; and Barbuda, Antigua, and 
Guadeloupe (Liogier and Martorell 1982, p. 172; Proctor 1991, p. 44; 
Breckon and Kolterman 1993, p. 1). Little was known about the status of 
this plant on the islands of Antigua, Barbuda, and Guadeloupe. One 
specimen, apparently originating from the Sus[uacute]a Commonwealth 
Forest in Sabana Grande and Yauco, PR, was collected in 1974 and is 
located in the herbarium of the University of Puerto Rico in San Juan, 
PR. Because of the poor condition of the specimen, it was not possible 
to confirm its identification as C. melanocarpa (Breckon and Kolterman 
1993, p. 1).
    In St. Croix, USVI, C. melanocarpa was first collected in 1881 by 
the Danish collector Baron H.F.A. von Eggers (Proctor 1991, p. 43). The 
species was re-discovered in Halfpenny Bay by Rudy G. O'Reilly, Jr., 
who found a small population (approximately seven individuals) in a dry 
coastal plain located about 2.5 miles (4 km) south of Christiansted in 
August 1988 (Breckon and Kolterman 1993, pp. 1-2). Voucher specimens of 
these plants were collected by G.R. Proctor on September, 1988 (Proctor 
1991, p. 43). The voucher describes the plants growing in pasture, 
shaded by Cassia poplyphylla (retama prieta) and other tall shrubs in 
the subtropical dry forest life zone. This population was estimated to 
consist of 24 individuals in July 1992 (Breckon and Kolterman 1993, p. 
2). In October 2002, one hundred individuals were estimated to occur at 
this same location (Lombard 2002).
    In Guanica, PR, C. melanocarpa was first collected by the German 
collector Paul Sintenis in 1886 (Proctor 1991, p. 43). Based on 
information in the Natural Heritage Program of the Puerto Rico 
Department of Natural and Environmental Resources (DNER), two 
historical collections are reported from Guanica: one in Cerro 
Montalva, west to Providencias Saltflats; and another at Punta Meseta, 
close to the Guanica Lighthouse within the Guanica Commonwealth Forest. 
Service biologists visited the last location on March 7, 2006 with 
personnel from the DNER and did not observe the species in the area. In 
2001, C. melanocarpa was rediscovered at the Guanica Commonwealth 
Forest (Trejo-Torres 2001, p. 62; Axelrod 2004; Trejo-Torres 2006) in 
the subtropical dry forest life zone. Service biologists visited the 
site in March 2006, and confirmed the presence of the species in a 
slope facing northwest of the Fuerte Trail. Approximately 12 
individuals were found within the deciduous forest type. However, this 
does not represent a population estimate for this species at the 
Guanica Commonwealth Forest. This forest contains habitat that is 
difficult to traverse. It is composed of dry shrub_scrub vegetation 
that is essentially a dense, thorny thicket of vegetation. 
Comprehensive surveys of the entire forest have not been conducted to 
determine all the locations of C. melanocarpa. Surveys thus far have 
been limited due to habitat constraints and resources to existing 
trails within the forests and have not been specifically designed yet 
to systematically look for C. melanocarpa. Axelrod (2004) anticipates, 
though, that this plant will be found in more locations in Guanica 
Commonwealth Forest and other places as more inventories are conducted.
    Within the subtropical moist forest life zone, the species has only 
been reported from the Sus[uacute]a Commonwealth Forest. C. melanocarpa 
has been reported in Sus[uacute]a twice in thirty years: in 1974 by 
Woodbury (Breckon and Kolterman 1993, p. 1) and in 2003 (Trejo-Torres 
2003, 2006). The occurrence of C. melanocarpa in Sus[uacute]a 
Commonwealth Forest was confirmed in 2003 when Trejo-Torres found the 
species in flower at the forest (Trejo-Torres 2003, 2006). Trejo-Torres 
submitted the collection voucher and the photography of the individual 
to the Service. Similar to the Guanica Commonwealth Forest, we do not 
have a comprehensive population estimate for the Sus[uacute]a 
Commonwealth Forest because systematic surveys of all suitable habitat 
have not been conducted. This forest also is composed of dense 
vegetation, making it difficult to traverse.
    At the time of listing in 1999, C. melanocarpa was known from one 
individual located on the Pe[ntilde]ones de Melones in Cabo Rojo, PR 
(about 16 miles (mi) or 25 kilometers (km) from Guanica); about 24 
individuals located

[[Page 48886]]

on one privately owned farm in Halfpenny Bay near Christiansted in St. 
Croix, USVI; and an undetermined number of individuals on Barbuda, 
Antigua, and Guadeloupe (64 FR 13116, March 17, 1999; Puerto Rico 
Planning Board 1995, p. 29; Proctor 1991, p. 44; Breckon and Kolterman 
1993, p. 1; USFWS 2005, p. 3). At the time of listing, Sus[uacute]a 
Commonwealth Forest was recognized as part of the historical 
distribution of the species; however, the occurrence within the forest 
could not be confirmed since the collection material deposited at the 
herbarium in San Juan was in poor condition.
    Currently, we have observed that the species, within U.S. 
jurisdiction (PR and USVI), occupies three discrete localities: (1) 
Approximately 100 individuals at a privately owned farm in Halfpenny 
Bay (Lombard 2002); (2) approximately 12 individuals located at the 
Fuerte Trail in Gu[aacute]nica Commonwealth Forest, Gu[aacute]nica, 
Guayanilla, and Yauco, PR (Axelrod 2004; Trejo-Torres 2001, p. 62), and 
(3) one individual located at the Sus[uacute]a Commonwealth Forest, 
Sabana Grande and Yauco, PR (Trejo-Torres 2006).
    The site in Pe[ntilde]ones de Melones, where the species was 
reported in 1995, has experienced periodic land clearing activities and 
road construction based on our observations in 2002 and 2006 (Foote 
2002; Axelrod 2004; Axelrod 2006). Several survey efforts have been 
conducted in the area by the Service and others; however, to date, no 
individuals of C. melanocarpa have been located (Foote 2002; Axelrod 
2004; Axelrod 2006; Oikos Environmental Services 2005, p. 27).

Habitat Description

    C. melanocarpa has been found to occur only in the subtropical dry 
and subtropical moist forest life zones. Based on our field 
observations, the currently occupied sites for this plant all fall into 
these forest life zones, and have similar habitat characteristics. The 
subtropical dry forest is considered the driest life zone in PR and the 
USVI, receiving a mean annual rainfall ranging from 24 to 40 in (60 to 
100 cm). Ewel and Whitmore (1973, pp. 10-20) described the vegetation 
in this zone as deciduous on most soils with most tree species dropping 
leaves during the dry season. The vegetation usually consists of a 
nearly continuous single-layered canopy with little ground cover. The 
leaves of dry forest species are often succulent or coriaceous 
(leathery), and species with spines and thorns are common. The 
vegetation in these areas is more xerophilous (drought resistant), and 
cacti are more abundant. Some common tree or shrub species of 
subtropical dry forest include: Prosopis juliflora (mesquite or 
bayahonda), Bursera simaruba (almacigo), Cephalocereus royenii 
(sebucan), Bucida buceras (ucar), and Guaiacum officinalis (guayacan). 
Tree heights usually do not exceed 49.2 ft (15 m), and crowns are 
typically broad, spreading, and flattened. Successional vegetation 
includes grasses, and the accumulated organic debris serves as fuel for 
human-induced fires (Ewel and Whitmore 1973, pp. 10-29). Extensive 
areas of this life zone in Puerto Rico lie over limestone. Within the 
subtropical dry forest life zone, the species currently occurs in 
Gu[aacute]nica Commonwealth Forest in PR and Halfpenny Bay in St. 
Croix, USVI.
    In Halfpenny Bay, the currently known population consists of about 
100 individuals located in a dry, coastal plain with soils belonging to 
the Glynn-Hogensborg Unit (NRCS 1998, pp. 63-64). The vegetation as 
observed by the Service in 2006 is composed of patches of dry woody 
vegetation (trees and shrubs), surrounded by grasses and C. melanocarpa 
is found under the canopy of these forested patches. The habitat 
characteristics of the site coincide with previous habitat descriptions 
for the species (Liogier and Martorell 1982, p. 172; USFWS 2005, p. 6). 
The average annual precipitation in the area ranges from 30.0 to 54.7 
in (762.0 to 1389.0 mm) (NRCS 1998, pp. 63-64).
    The currently known population in the Gu[aacute]nica Commonwealth 
Forest consists of approximately 12 individuals located on a slope 
northwest of the Fuerte Trail. In 2006, we observed that the vegetation 
within this locality is characterized by dry forest with semi-closed 
canopy on limestone soils and the species is found under the canopy. 
The Guanica Commonwealth Forest is located in southwestern PR in the 
municipalities of Guanica, Guayanilla, and Yauco. The forest was 
designated as a forest reserve in 1919 and a United Nations Biosphere 
Reserve in 1981. It is managed by the DNER. The Guanica Forest supports 
a variety of vegetation types, including cactus scrub, littoral forest, 
deciduous forest, and semi-evergreen forest (Silander et al. 1986, pp. 
60-66). The forest is underlain by limestone sedimentary rocks of 
Tertiary Period origin, and soils are shallow, well-drained, and 
alkaline (Silander et al. 1986, p. 51). Outcrops cover much of the 
area. Mean annual precipitation in the Gu[aacute]nica area is 
approximately 31 in (790 mm). C. melanocarpa is found in the deciduous 
forest. In this forest type, trees often reach 33 ft (10 m). Some 
associated tree and shrub species in this vegetation type are Bucida 
buceras (ucar), Bursera simaruba (almacigo), Coccoloba microstachya 
(uvillo), C. krugii, and Reynosia uncinata (chicharron) (Silander et 
al. 1986, p. 69).
    C. melanocarpa is currently known from Susua Commonwealth Forest, 
which is within the subtropical moist life zone of Puerto Rico. The 
subtropical moist forest is delineated by a mean annual rainfall 
ranging from 39 to 86 in (100 to 220 cm) (Ewel and Whitmore 1973, pp. 
20-29). Vegetation associations within this life zone are characterized 
by trees up to 65.6 ft (20 m) tall with rounded crowns. Many of the 
woody species are deciduous during the dry season and epiphytes are 
common. Some common tree or shrub species of subtropical moist forest 
include: Roystonea borinquena (palma real), Tabebuia heterophylla 
(roble blanco), Nectandra spp. (laurel), Erythrina poeppigiana (bucayo 
gigante), Inga vera (guaba), Inga laurina (guama), and Didymopanax 
morototoni (yagrumo macho) (Ewel and Whitmore 1973, pp. 20-29). The 
Sus[uacute]a Commonwealth Forest represents not only the influence of a 
climatic transition zone (dry to moist), but also a combination of 
volcanic and serpentine soils. Two vegetation associations (dry slope 
forest and gallery forest) have been delineated in the subtropical 
moist life zone (DNR 1976, p. 224). C. melanocarpa is found within the 
dry slope forest type. The climatic conditions and serpentine-derived 
soils contribute to more xeric conditions and a forest structure and 
species composition very similar to the Guanica Commonwealth Forest. In 
2001, Trejo-Torres (2003, 2006) rediscovered the species in the Susua 
Commonwealth Forest. One individual in flower was located in the 
forest. The individual was found on a rocky ravine west of Quebrada los 
Peces, at the southwestern corner of the public forest. The habitat is 
described as low forest on serpentine soil.
    In Penones de Melones, Cabo Rojo, PR, C. melanocarpa was discovered 
by Dr. F. Axelrod of the University of Puerto Rico in February 1995 
(PRPB 1995, p. 29). The collection voucher deposited in the University 
of Puerto Rico in San Juan describes the location in Boqueron Ward, 
Cabo Rojo, PR, at the upper west slopes of Penones de Melones from 164 
to 295 ft (50 to 90 m) above sea level. The voucher described the 
habitat as dry forget on limestone, and the collection was made from a 
7 ft (2 m) shrub with green globose (spherical) fruit. The Penones de 
Melones area consists of several chains of limestone hills and 
drainages

[[Page 48887]]

(ravines) surrounded by mangrove forests, mud flats, saltwater and 
freshwater lagoons, wooded lands, extensive pastures, and residential 
projects. The elevation ranges from 3.3 to 347.7 ft (1 to 106 m) above 
sea level. The limestone hill soils belong to San Germ[aacute]n Series 
(San Germ[aacute]n Stony Clay Loam or SmE) described as shallow and 
very shallow, strongly sloping and steep, well-drained, cobbly and 
stony soils on the limestone hills and mountains (Soil Conservation 
Survey 1965, pp. 114-115). Average annual precipitation in Cabo Rojo is 
approximately 34 in (874 mm) (USFWS 2004).
    Several vegetation surveys have been conducted in the Penones de 
Melones area in the last 20 years. Dr. Axelrod reported 84 vascular 
plant species at the site in 1995 (PRPB 1995, pp. 25-29). In 2005, Dr. 
H.E. Quintero conducted a flora and fauna study at the site and found 
that vegetation types are not uniform and there were patches of 
distinct forests, woodlands, shrub lands, and grasslands (Oikos 
Environmental Services 2005, p. 10). In August 2002, Service biologists 
visited the Pe[ntilde]ones de Melones area with Dr. Axelrod to identify 
the site where the species was discovered in 1995. The main part of the 
drainage, where C. melanocarpa was previously observed, showed signs of 
disturbance from periodic land clearing and road construction. They 
observed in August 2002 that the area had not been disturbed for 
several years and showed excessive growth of Acacia sp. in disturbed 
areas exposed to more sunlight. They noted that the area was covered 
with secondary vegetation with such species as Acacia farnesiana 
(aroma) and Prosopis juliflora (mesquite). Although the species was not 
found, Service biologists concluded that C. melanocarpa may be present, 
but the conditions of the habitat were not suitable to appropriately 
locate and identify the species (Foote 2002).
    In 2004, Dr. Axelrod provided comments to the Service regarding the 
occurrence of the species in the Penones de Melones area. He reported 
that, since his report of the species on the north side of Punta 
Melones, he found it once again in 2002 in a ravine on the south side 
of Punta Melones. He reported that, when he returned to the site in 
2004, the ravine on the south had been entirely bulldozed. In March 
2006, Service biologists visited these two sites on three occasions. 
The drainage area facing north of the Penones de Melones (area reported 
by Axelrod in 1995) was searched for the species, as well as the hills, 
the slopes, and drainages facing south of the hills. The original site, 
the drainage area facing north, demonstrates vegetation characteristics 
consistent with previous land clearing activities. The area consists of 
dense woodland dominated by mesquite trees. The ravine and hillsides 
located to the south of Pe[ntilde]ones de Melones have also been 
cleared by bulldozing activities and consist of dense woodlands 
dominated by mesquite trees in the lower area and a solid stand of fire 
bush (Croton lucidus) on the hillsides. Based on Service observations, 
the secondary dry forest vegetation that supported habitat for C. 
melanocarpa has been eliminated.

Summary of Threats

    C. melanocarpa is threatened by small population sizes 
characterized by the limited number of individuals and distribution, 
habitat destruction or modification for residential and tourist 
development, fire, and catastrophic natural events such as hurricanes 
(USFWS 2005, p. 8). Periodic land-clearing activities have been 
documented by the Service and others in the Penones de Melones area in 
Cabo Rojo (Foote 2002; Axelrod 2004; 2006). The Halfpenny Bay site is a 
privately owned agricultural tract that is subject to intense but 
periodic grazing. Based on information gathered during our site visit, 
most of the site was burned by a human-induced fire in 1997 (Hamada 
2006). This population is subject to impacts from cattle grazing 
activities as well as pressure for a golf course development (USFWS 
2005, p. 8). The limited number of individuals and restricted 
distribution make the species vulnerable to catastrophic events, such 
as hurricane damage and human-induced fires.

Previous Federal Actions

    For more information on previous Federal actions concerning C. 
melanocarpa, refer to the final listing rule (64 FR 13116, March 17, 
1999). We listed C. melanocarpa as endangered under the Act on March 
17, 1999 (64 FR 13116) and approved a final recovery plan for this 
plant on July 15, 2005 (USFWS 2005). In the 1999 final listing rule, we 
determined designation of critical habitat was not prudent. On 
September 17, 2004, the Center for Biological Diversity filed a lawsuit 
against the Department of the Interior and the Service [Center for 
Biological Diversity v. Norton (CV-00293-JDB) (D.D.C.)], challenging 
the failure to designate critical habitat for C. melanocarpa. In a 
settlement agreement dated June 3, 2005, the Service agreed to 
reevaluate the prudency of critical habitat for this species and, if 
prudent, submit a proposed designation of critical habitat to the 
Federal Register by August 15, 2006, and a final designation by August 
15, 2007.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) Essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation, as defined under section 3 of the Act, means 
to use and the use of all methods and procedures that are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided under the Act are no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time it was listed must 
first have features that are essential to the conservation of the 
species. Critical habitat designations identify, to the extent known 
using the best scientific data available, habitat areas that provide 
essential life cycle needs of the species (areas on which are found the 
primary constituent elements (PCEs), as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. [As discussed below, 
such areas may also be excluded from critical habitat.] Furthermore, 
when the best available scientific data do not demonstrate that the 
conservation needs of the species require additional areas, we will not 
designate critical habitat in areas

[[Page 48888]]

outside the geographical area occupied by the species at the time of 
listing. However, an area that was not known to be occupied at the time 
of listing but is currently occupied by the species will likely be 
essential to the conservation of the species and, therefore, typically 
included in the critical habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (P.L. 106-554; H.R. 5658) and 
the associated Information Quality Guidelines issued by the Service, 
provide criteria, establish procedures, and provide guidance to ensure 
that decisions made by the Service represent the best scientific data 
available. They require Service biologists to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat. When determining which 
areas are critical habitat, a primary source of information is 
generally the listing package for the species. Additional information 
sources include the recovery plan for the species, articles in peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge. All 
information is used in accordance with the provisions of Section 515 of 
the Treasury and General Government Appropriations Act for Fiscal Year 
2001 (Pub. L. 106-554; H.R. 5658) and the associated Information 
Quality Guidelines issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act and its implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is listed as 
endangered or threatened. Our regulations at 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 activity and the 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 our March 17, 1999, final rule (64 FR 13116), we determined 
that designating critical habitat was not prudent for C. melanocarpa 
because it would result in no known benefit to the species and could 
further pose a threat to the species through publication of site-
specific localities.
    We are already working with Federal and State agencies, private 
individuals, and organizations in carrying out conservation activities 
for C. melanocarpa, conducting surveys for additional occurrences, and 
assessing habitat conditions. However, critical habitat designation may 
be beneficial by providing additional information to individuals, local 
and State governments, and other entities engaged in long-range 
planning, because areas with features essential to the conservation of 
the species are clearly delineated and, to the extent currently 
feasible, the primary constituent elements of the habitat essential for 
conservation of the species are specifically identified. Furthermore, 
although the low numbers of this plant make it unlikely that its 
populations could withstand even moderate collecting pressure or 
vandalism, we do not have specific evidence of taking, collection, 
vandalism, trade, or unauthorized human disturbance and thus, we cannot 
say that designation would increase the likelihood of take.
    Accordingly, we withdraw our previous determination that the 
designation of critical habitat will not benefit C. melanocarpa and 
will increase the degree of threat to the species. We determine that 
the designation of critical habitat is prudent for this species. At 
this time, we have sufficient information necessary to identify 
specific areas that meet the definition of critical habitat and are, 
therefore, proposing critical habitat for C. melanocarpa.

Methods

    As required by section 4(b) of the Act, we use the best scientific 
data available in determining areas that were occupied at the time of 
listing that contain the features that are essential to the 
conservation of C. melanocarpa and other areas that are essential to 
the conservation of this species. We reviewed the approach to 
conservation of the species undertaken by local, State, and Federal 
agencies operating within the species' range since its listing, as well 
as the actions necessary for this plant's conservation as identified in 
the final recovery plan (USFWS 2005). We reviewed available information 
that pertains to the habitat requirements of this species. This 
information included: data from our files that we used for listing the 
species; peer-reviewed scientific publications; biological field 
surveys and reports; resource agencies' and universities' unpublished 
status reports; information and GIS maps (forest boundaries, 
topography, drainages, roads) from the Puerto Rico Planning Board and 
Puerto Rico Department of Natural and Environmental Resources; soil 
maps and manuals from Natural Resources Conservation Service (former 
Soil Conservation Service); U.S. Geological Survey topographic maps 
(scale 1:20,000); recent aerial photography; unpublished data and 
observations collected by Service biologists during recent field 
surveys; forest management plans from local agencies; the C. 
melanocarpa recovery plan; information received from and discussions 
with local (PR and USVI) botanists and researchers working with the 
species and its habitat; and herbarium collections. We also made 
several recent visits to all currently known localities (Halfpenny Bay, 
Pe[ntilde]ones de Melones, Gu[aacute]nica Commonwealth Forest, and 
Sus[uacute]a Commonwealth Forest) to gather abundance and distribution 
data and conduct habitat observations. Information from all sources was 
utilized to determine the species' range

[[Page 48889]]

and habitat features needed to support life history functions essential 
to the conservation of the species.
    Fewer than 115 individuals are known to occur in three discrete 
localities throughout PR and the USVI, and no additional sightings for 
the species have been reported in other areas. The locality where the 
majority of the individuals occur (about 100 plants) is a relatively 
small (50 ac, or 20 ha) privately owned cattle grazing parcel under 
current threat of development pressure in St. Croix. The two other 
localities are publicly owned and support the only known individuals of 
C. melanocarpa in PR. In the three areas, C. melanocarpa is associated 
with dry woody vegetation occupying the understory strata. The 
conservation of C. melanocarpa depends upon the protection of existing 
populations and the maintenance of ecological functions within these 
sites, including vegetation and soils characteristics essential to the 
conservation of the species. Therefore, we considered, but are not 
proposing any areas outside the geographical area presently occupied by 
the species.

Primary Constituent Elements (PCEs)

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, we are required to base critical habitat determinations 
on the best scientific data available and to consider within areas 
occupied by the species at the time of listing those physical and 
biological features that are essential to the conservation of the 
species (PCEs), and that 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 reproduction, germination, or 
seed dispersal; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    The specific PCEs required for C. melanocarpa are derived from the 
biological needs of the species, and include those habitat components 
needed for growth and development, flower production, pollination, seed 
set and fruit production, and genetic exchange. Although at present 
time the information on the species' biological and ecological needs is 
limited (USFWS 2005, p. 7), habitat characteristics supporting all 
three currently known localities are known. Additionally, individuals 
in all three localities have been documented in fruit or flower. The 
presence of sexual reproduction indicates that the species has the 
potential to produce viable populations, with the assistance of 
appropriate conservation strategies.
    C. melanocarpa is currently known from both the subtropical dry 
forest and subtropical moist forest life zones of PR and the USVI. 
Except for one locality, the historical and current range of the 
species is within dry forest life zone. The Sus[uacute]a Commonwealth 
Forest is the only locality that is not dry forest; however, based on 
our observations because of its serpentine soils, the vegetation 
structure and species composition are similar to dry forest habitat 
(Breckon and Garc[iacute]a 2001; Silander et al. 1986, p. 243). In all 
three localities, the species is under the canopy of trees and shrubs, 
and all localities in PR are forested hills associated with either 
limestone or serpentine soils. The locality in St. Croix, based on 
Service observations, is a coastal plain with patches or thickets of 
trees and shrubs characteristic of dry forest habitat.
    Within the subtropical dry and moist forest life zones, C. 
melanocarpa has been reported from four discrete sites within the U.S. 
Caribbean: Halfpenny Bay, Pe[ntilde]ones de Melones, the Gu[aacute]nica 
Commonwealth Forest, and the Sus[uacute]a Commonwealth Forest. However, 
the species presently occupies only Halfpenny Bay in St. Croix, USVI, 
the Gu[aacute]nica Commonwealth Forest, PR, and the Sus[uacute]a 
Commonwealth Forest, PR.
    Vegetation at the Halfpenny Bay site comprised of dry thicket scrub 
vegetation, dominated by grasses with patches of trees and shrubs 
(USFWS 2005, pp. 6-7). Based on Service observations during a site 
visit conducted on March 1 and 2, 2006, C. melanocarpa is an understory 
species, currently growing below trees and shrubs characteristic of dry 
forest habitat. Associated flora include introduced grass species, 
Caesalpinia coriaria (dividive), Tamarindus indica (tamarind), Castela 
erecta (goat-bush), Acacia turtuosa (acacia), Cassia poplyphylla 
(retama prieta), Leucaena leucocephala (tan-tan), Randia aculeata (box-
briar or tintillo), and Cordia alba (white manjack). Soils in the 
Halfpenny Bay site have been described as belonging to the Glynn-
Hogensborg unit, which consists of very deep, well drained, nearly 
level to moderately steep soils (NRCS 1998, pp. 63-64).
    We observed the vegetation within the Gu[aacute]nica Commonwealth 
Forest locality in 2006 as dry forest with semi-closed canopy on 
limestone soils. The species is found under the canopy. In this forest 
type, trees often reach 33 ft (10 m). Some associated dry forest 
vegetation in this locality include uvillo (Coccoloba microstachya), C. 
diversifolia (uvilla), Thouinia portoricensis (quebracho), Guettarda 
elliptica (cucubano liso), alhel[iacute], Croton lucidus, Savia 
sessiliflora (amansa guapo), Pithecellobium unguis-cati (u[ntilde]a de 
gato), Guaiacum sanctum (guayac[aacute]n), Leucaena leucocephala 
(zarcilla), among other common species (Trejo-Torres 2001, pp. 59-63).
    Sus[uacute]a Commonwealth Forest is located in southwestern Puerto 
Rico in the municipalities of Yauco and Sabana Grande. The Sus[uacute]a 
Forest lies between the humid Central Cordillera and the dry coastal 
plains typical of the south coast. The forest represents not only the 
influence of a climatic transition zone (dry to moist), but also a 
combination of volcanic and serpentine soils (Department of Natural 
Resources 1976, p. 24). The majority of the forest (90 percent) is 
underlain by serpentine outcrop. The rest of the forest (10 percent) 
has nine other soil types that belong to the Caguabo-M[uacute]caro 
association (Silander et al. 1986, p. 224-226; Soil Conservation Survey 
1975, p. 9). These soils are described as slightly leached, loamy and 
clay, sticky and plastic soils underlain by hard or weathered rock at a 
depth of less than 30 inches (Soil Conservation Survey 1975, p. 9). 
Serpentine-derived soils create stressful conditions for the 
establishment and growth of plants, and their associated floras are 
characterized by high diversity and endemism (Cede[ntilde]o-Maldonado 
and Breckon 1996, p. 348). Two vegetation associations (dry slope 
forest and gallery forest) have been delineated in the subtropical 
moist life zone (Department of Natural Resources 1976, p. 224). The 
trees are slender, open-crowned, and usually less than 39.4 ft (12m) 
tall. The forest floor is open because the excessively drained soil 
supports little herbaceous growth (Ewel and Whitmore 1973, p. 25). C. 
melanocarpa is found in the dry slope forest type. The climatic 
conditions and serpentine-derived soils contribute to more xeric 
conditions and a forest structure and species composition similar to 
the Gu[aacute]nica Commonwealth Forest based on observations by the 
Service and others (Silander et al. 1986, pp. 239-245; Breckon and 
Garc[iacute]a 2001).

Primary Constituent Elements for C. melanocarpa

    In accordance with our regulations, we are required to identify the 
known physical and biological features (PCEs) essential to the 
conservation of C. melanocarpa. All proposed critical habitat for C. 
melanocarpa is occupied, within the species' current and historic

[[Page 48890]]

geographic range, and contains sufficient PCEs to support at least one 
life history function.
    Based on our current knowledge of the species and the requirements 
of the habitat to sustain the essential life history functions of the 
species, as discussed above, we have determined that C. melanocarpa's 
PCEs are:
    (1) Single-layered canopy forest with little ground cover and open 
forest floor that supports patches of dry vegetation with grasses, and
    (2) Well to excessively drained, limestone and serpentine-derived 
soils (including soils of the San Germ[aacute]n, Nipe, and Rosario 
series and Glynn and Hogensborg series).
    Open forest floor, canopy, and little ground cover are important 
requirements for an understory species like C. melanocarpa. Canopy 
provides shade and open forest floor reduces competition by herbaceous 
species. Limestone and serpentine derived soils that are well to 
excessively drained provide essential nutrients to this plant and 
sustain the dry conditions needed by the species. The proposed critical 
habitat in this rule has been determined to contain sufficient PCEs to 
support at least one life history function of C. melanocarpa.

Criteria Used To Identify Critical Habitat

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

[[Page 48891]]

conservation of the subspecies, they are not being included in this 
proposal (see Application of section 3(5)(A) of the Act section) 
because they do not meet the definition of critical habitat under 
section 3(5)(A) of the Act.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including within the boundaries of the map 
contained in this proposed rule areas already developed such as 
buildings, paved areas, and other structures in areas where the PCEs 
for C. melanocarpa are not present. The scale of the maps prepared 
under the parameters for publication within the Code of Federal 
Regulations may not reflect the exclusion of such developed areas. Any 
such structures and the land under them inadvertently left inside 
critical habitat boundaries shown on the maps of this proposed rule 
have been excluded by text in the proposed rule and are not proposed 
for designation as critical habitat. Therefore, Federal actions limited 
to these areas would not trigger section 7 consultation, unless they 
affect the species or primary constituent elements in adjacent critical 
habitat. To the extent feasible, we will continue, with the assistance 
of other State, Federal, and private researchers, to conduct surveys, 
research, and conservation actions on the species and its habitat in 
areas designated and not designated as critical habitat. We anticipate 
that the boundaries of the mapped units may be refined based on 
additional information received during the public comment period. If 
additional information becomes available on the species' biology, 
distribution, and threats, we will evaluate the need to revise critical 
habitat, or refine the boundaries of critical habitat as appropriate. 
Sites that are occupied by this plant that are not being designated for 
critical habitat will continue to receive protection under the Act's 
section 7 jeopardy standard where a Federal nexus may occur (see 
``Critical Habitat'' section).
    We are proposing to designate critical habitat on lands in need of 
special management or protection and on those that we have determined 
to be currently occupied by the species or occupied at the time of 
listing and which contain sufficient PCEs to support life history 
functions essential for the conservation of the species.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain the PCEs that 
may require special management considerations or protection. As 
discussed in detail here and in the unit descriptions below, we find 
that all of the PCEs in Halfpenny Bay may require special management 
considerations or protection due to threats to the species or its 
habitat. Such management considerations and protections include: 
fencing off forest patches to exclude cattle, developing fire-breaks 
adjacent to existing roads and farm boundaries during dry season, 
establishing conservation agreements with landowners to protect 
individuals within the property, collecting seeds and cuttings to 
establish a propagation program, and establishing additional patches of 
forest vegetation to plant additional individuals to augment existing 
populations within the site

Proposed Critical Habitat Designation

    We are proposing Halfpenny Bay in Christiansted, St. Croix, USVI as 
critical habitat for C. melanocarpa. This critical habitat unit 
described below constitutes our best assessment at this time of areas 
we determined to be occupied at the time of listing, containing the 
primary constituent elements, and which may require special management. 
All of the areas identified in this rule as occupied, including those 
in the Commonwealth Forests managed by DNER that do not meet the 
definition of critical habitat (see Application of Section 3(5)(A) of 
the Act section), are necessary to conserve the species. Appropriate 
management and protection will support reproduction, recruitment, 
adaptation to catastrophic events and genetic diversity (Primack 2000, 
pp. 124-133; Falk et al. 1996, pp. 113-119) as identified using the 
best available data.
    Table 1 provides the approximate area (acres, hectares) and land 
ownership of lands determined to meet the definition of critical 
habitat and proposed.

  Table 1.--Lands Determined To Meet the Definition of Critical Habitat
 for C. Melanocarpa, Land Ownership, Approximate Area (Acres, Hectares)
----------------------------------------------------------------------
    Critical habitat unit,                            Definitional area
           location               Land ownership       acres (hectares)
------------------------------------------------------------------------
Halfpenny Bay St. Croix, USVI  Private.............           50 (20.23)
    Total....................  ....................           50 (20.23)
------------------------------------------------------------------------

    Below we provide a brief description and rationale for the proposed 
unit of critical habitat for C. melanocarpa.

Halfpenny Bay, St. Croix

    The Halfpenny Bay critical habitat unit consists of an 
approximately 50-ac (20.23-ha) area on a privately owned agricultural 
tract located in a dry coastal plain about 2.48 miles (4 km) south of 
Christiansted, St. Croix, USVI. The area is delimited by Road 62 to the 
north, South Shore Road to the west, the local road to Halfpenny Bay to 
the east, and by the 10-meter (m) (33 ft) topographic contour line to 
the south. This unit encompasses the habitat features essential to the 
conservation of C. melanocarpa and does not contain manmade structures, 
such as existing private homes or barns. The species is located within 
dry thickets of scrub vegetation in this unit, which is dominated by 
grasses with patches of trees and shrubs. The unit contains PCEs 1 and 
2 and is important to conserving the genetic diversity of this plant. 
Since this is the locality with the highest number of individuals (100 
plants), we believe that it should be considered the core population to 
maintain genetic representation of this plant in the U.S. Caribbean. 
Propagation material, both sexual and asexual, should be coll