Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Elfin-Woods Warbler, 39077-39095 [2020-12070]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 85, Number 126 (Tuesday, June 30, 2020)]
[Rules and Regulations]
[Pages 39077-39095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12070]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2020-0030; FF09E21000 FXES11110900000 201]
RIN 1018-BE85


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the elfin-woods warbler (Setophaga angelae) under 
the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 27,488 acres (11,125 hectares) in the Maricao, San 
Germ[aacute]n, Sabana Grande, Yauco, R[iacute]o Grande, 
Can[oacute]vanas, Las Piedras, Naguabo, Ceiba, Cayey, San Lorenzo, 
Guayama, and Patillas municipalities in Puerto Rico fall within the 
boundaries of the critical habitat designation. The effect of this 
regulation is to extend the Act's protections to the elfin-woods 
warbler's critical habitat.

DATES: This rule is effective on July 30, 2020.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov under Docket No. FWS-R4-ES-2020-0030 and at https://www.fws.gov/caribbean. Comments and materials we received, as well as 
some supporting documentation we used in preparing this rule, are 
available for public inspection at https://www.regulations.gov under 
Docket No. FWS-R4-ES-2020-0030.
    The coordinates or 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.regulations.gov at 
Docket No. FWS-R4-ES-2020-0030 and at https://www.fws.gov/caribbean. Any 
additional tools or supporting information that we developed for this 
critical habitat designation will also be available at the Service 
website and in the preamble 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, Road 301 km 5.1, Boquer[oacute]n, 
PR 00622; telephone 787-851-7297. Persons who use a telecommunication 
device for the deaf (TDD) may call the Federal Relay Service at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, if we determine that 
any species is an endangered or threatened species, we must designate 
critical habitat to the maximum extent prudent and determinable. We 
published in the Federal Register a final rule to list the elfin-woods 
warbler as a threatened species on June 22, 2016 (81 FR 40534). On that 
same day, we also published a proposed rule to designate critical 
habitat for the elfin-woods warbler (81 FR 40632). Designations of 
critical habitat can only be completed by issuing a rule.
    What this rule does. This rule will finalize the designation of 
critical habitat for the elfin-woods warbler under the Act. 
Accordingly, this rule revises part 17 of title 50 of the Code of 
Federal Regulations at 50 CFR 17.95.
    Basis for this rule. Under section 4(a)(3) of the Act, if we 
determine that any species is an endangered or threatened species we 
must, to the maximum extent prudent and determinable, designate 
critical habitat. 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. Section 3(5)(A) of the Act 
defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential

[[Page 39078]]

for the conservation of the species and that the area contains one or 
more of those physical or biological features essential to the 
conservation of the species, as interpreted by regulation at 50 CFR 
424.12. The Secretary may exclude an area from critical habitat if he 
determines that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless he 
determines, based on the best scientific data available, that the 
failure to designate such area as critical habitat will result in the 
extinction of the species.
    The critical habitat we are designating in this rule, in three 
units comprising 27,488 acres (ac) (11,125 hectares (ha)), constitutes 
our current best assessment of the areas that meet the definition of 
critical habitat for the elfin-woods warbler.
    Economic analysis. In accordance with section 4(b)(2) of the Act, 
we prepared an economic analysis of the impacts of designating critical 
habitat. We published this announcement and solicited public comments 
on the draft economic analysis (81 FR 40632; June 22, 2016).
    Peer review and public comment. In accordance with our joint policy 
on peer review published in the Federal Register on July 1, 1994 (59 FR 
34270), and our August 22, 2016, memorandum updating and clarifying the 
role of peer review of actions under the Act, we sought the expert 
opinions of six independent specialists with scientific expertise that 
included familiarity with the species, the geographic region in which 
the species occurs, and conservation biology principles. The purpose of 
peer review is to ensure that our designation is based on 
scientifically sound data and analyses. We received responses from two 
peer reviewers on our technical assumptions, analysis, and whether or 
not we used the best scientific data available. These peer reviewers 
generally concurred with our methods and conclusions and provided 
additional information, clarifications, and suggestions to improve this 
final rule. Information we received from peer review is incorporated in 
this final designation of critical habitat. We also considered all 
comments and information received from the public during the comment 
period for the proposed designation of critical habitat.

Previous Federal Actions

    All previous Federal actions are described in the proposed and 
final listing rules for the elfin-woods warbler as a threatened species 
under the Act published on September 30, 2015 (80 FR 58674) and June 
22, 2016 (81 FR 40534). Concurrently with the final listing rule, we 
adopted a rule under section 4(d) of the Act to provide for the 
conservation of the elfin-woods warbler. We published our proposed rule 
to designate critical habitat for the elfin-woods warbler on June 22, 
2016 (81 FR 40632).
    On August 27, 2019, we published a final rule in the Federal 
Register (84 FR 45020) to amend our regulations concerning the 
procedures and criteria we use to designate and revise critical 
habitat. That rule became effective on September 26, 2019, but, as 
stated in that rule, the amendments it sets forth apply to ``rules for 
which a proposed rule was published after September 26, 2019.'' We 
published our proposed critical habitat designation for the elfin-woods 
warbler on June 22, 2016 (81 FR 40534); therefore, the amendments set 
forth in the August 27, 2019, final rule at 84 FR 45020 do not apply to 
this final designation of critical habitat for the elfin-woods warbler. 
Nonetheless, we note that this designation is also consistent with the 
standards set forth in the August 27, 2019 amendments to the 
regulations.

Summary of Comments and Recommendations

    In the June 22, 2016, proposed critical habitat rule (81 FR 40632), 
we requested that all interested parties submit written comments on the 
proposed designation of critical habitat for the elfin-woods warbler by 
August 22, 2016. We also contacted appropriate Federal, State, and 
local agencies, scientific organizations, and other interested parties 
and invited them to comment on the proposed rule and draft economic 
analysis (DEA). A newspaper notice inviting general public comment was 
published in Primera Hora on June 24, 2016. We did not receive any 
requests for a public hearing, and we did not receive any comments on 
the DEA.
    During the comment period, we received two comment letters from 
peer reviewers directly addressing the proposed critical habitat 
designation and one public comment. All substantive information 
provided during the comment period has either been incorporated 
directly into this final determination or addressed below, as 
appropriate.

Peer Reviewer Comments

    (1) Comment: A peer reviewer recommended adding the westernmost 
patches of forest within the boundaries of the Maricao Commonwealth 
Forest (MCF) as critical habitat for the elfin-woods warbler. According 
to the reviewer, these forest patches qualify as essential habitat for 
the conservation of the species for breeding, reproduction, or rearing 
of offspring. The reviewer also reported two observations of elfin-
woods warbler in those patches.
    Our Response: We reviewed the westernmost boundaries of Unit 1 
(Maricao) of the proposed critical habitat and the new data documenting 
the species' occurrence in the area. Based on the reanalysis of the 
area and the data provided by the peer reviewer, we revised Unit 1 to 
add approximately 363 ac (146 ha). This additional area comprises 2.8 
percent of Unit 1. The Puerto Rico Department of Natural and 
Environmental Resources (PDNER) manages 97.8 percent of the additional 
area, in the MCF, with the remaining 2.2 percent (8 ac) of the 
additional area on private land.
    (2) Comment: A peer reviewer recommended we expand the Maricao Unit 
because they believed habitat with physical and biological features on 
private lands outside the western boundary of the MCF was left out of 
the critical habitat designation. The reviewer recommended designating 
active and abandoned shade-grown coffee plantations, agricultural lands 
with native forest cover, and closed canopies that exist in the 
mountainsides parallel to road PR#105 up to km 12.4, as critical 
habitat. The reviewer stated that this area encompasses suitable 
habitat consistently used and occupied by the elfin-woods warbler.
    Our Response: We reanalyzed the lands adjacent to the western 
boundary of the MCF. As described in our response to comment 1, we 
identified an additional 8 ac (3.2 ha) of private land adjacent to the 
MCF that is occupied and contains the physical and biological features 
required by the elfin-woods warbler that we are including as critical 
habitat. We determined the remainder of these private areas suggested 
by the peer reviewer are disturbed and do not fit our established 
criteria for critical habitat at this time (see Criteria Used To 
Identify Critical Habitat). Because these areas are occupied, the 
species is protected in these areas. For example, where a landowner 
requests Federal agency funding or authorization for an action that may 
affect a listed species or critical habitat, the Federal agency would 
be required to consult with the Service under section 7(a)(2) of the 
Act. Additionally, the prohibitions of section 9 of the Act apply to 
the elfin-woods warblers that occur within these areas.
    (3) Comment: A peer reviewer recommended we include Guilarte 
Commonwealth Forest as another area outside the geographic range of the

[[Page 39079]]

elfin-woods warbler at the time of listing to be included as critical 
habitat, based on the potential of this forest to provide connectivity 
between occupied sites for genetic exchange and because it contains the 
necessary habitat to support the species.
    Our Response: Based on the best available information at this time, 
we do not consider the Guilarte Commonwealth Forest (GCF) essential to 
the conservation of the species. The elfin-woods warbler has never been 
observed in the GCF, indicating the GCF may not be essential habitat 
for the species. In addition, occupancy of resilient populations of the 
elfin-woods warbler in the three areas that constitute its known 
historical range, which we are designating as critical habitat, would 
likely be sufficient to ensure conservation of the species. A critical 
habitat designation does not signal that habitat outside the designated 
area is unimportant or may not be beneficial for the recovery of the 
species. The Service can develop recovery actions during recovery 
planning for this site. We will continue working with our State 
partners to address the conservation needs of the elfin-woods warbler.

Comments From States

    Section 4(b)(5)(A)(ii) of the Act requires the Service to give 
actual notice of any designation of lands that are considered to be 
critical habitat to the appropriate agency of each State in which the 
species is believed to occur, and invite each such agency to comment on 
the proposed regulation. Section 4(i) of the Act states, ``the 
Secretary shall submit to the State agency a written justification for 
his failure to adopt regulations consistent with the agency's comments 
or petition.'' For this rule we did not receive any written comments 
from the Commonwealth of Puerto Rico.

Public Comments

    We received one public comment on the proposed rule. While the 
commenter indicated support for the habitat protection of the elfin-
woods warbler, the commenter did not provide substantive comments 
requiring the Service's response.

Summary of Changes From Proposed Rule

    This final rule incorporates changes to our proposed rule based on 
the comments and information we received, as discussed above in the 
Summary of Comments and Recommendations. All changes made were included 
accordingly into the document, tables, and maps. As a result, the final 
designation of critical habitat reflects the following changes from the 
June 22, 2016, proposed rule (81 FR 40632):
    1. We revised Unit 1 (Maricao) to include additional area as 
critical habitat. This unit now consists of approximately 12,978 ac 
(5,252 ha), which is an increase of approximately 2.8 percent of the 
proposed area for Unit 1.
    2. We corrected an error in the acreage of Unit 3 (Carite). The 
error resulted from rounding of numbers (rounding up from 0.55), and 
the change was an increase of approximately 1.1 ac (0.45 ha).
    3. We refined our description of the physical and biological 
features to be more explicit about the features we are identifying, 
specifying these features include elevations above 300 meters in active 
shade-grown coffee plantations or forested agricultural lands dominated 
primarily by native vegetation, or abandoned coffee plantations or 
agricultural lands with native forest cover and a closed canopy. In the 
proposed rule, we did not specify the elevations in these landscapes. 
No adjustments to the unit boundaries were needed as a result of this 
change.
    4. We updated the coordinates or plot points from which the maps 
were generated. The information is available at https://www.regulations.gov under Docket No. FWS-R4-ES-2020-0030, and from the 
Caribbean Ecological Services Field Office website at https://www.fws.gov/caribbean.

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.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as: An area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the Federal agency would be required to consult 
with the Service under section 7(a)(2) of the Act. However, even if the 
Service were to conclude that the proposed activity would result in 
destruction or adverse modification of the critical habitat, the 
Federal action agency and the landowner are not required to abandon the 
proposed activity, or to restore or recover the species; instead, they 
must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical

[[Page 39080]]

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 identifying those 
physical or 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, 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 may 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 the elfin-woods warbler, we determined whether unoccupied areas 
are essential for the conservation of the species by considering the 
life-history, status, and conservation needs of the species. Our 
decision was further informed by observations of species-habitat 
relationships, habitat suitability models derived from these 
observations, and the locations of historical records to identify which 
features and specific areas are essential to the conservation of the 
species and, as a result, the development of 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 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. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas 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 conservation of the species and which 
may require special management considerations or protection. For 
example, physical features might include gravel of a particular size 
required for spawning, alkali soil for seed germination, protective 
cover for migration, or susceptibility to flooding or fire that 
maintains necessary early-successional habitat characteristics. 
Biological features might include prey species, forage grasses, 
specific kinds or ages of trees for roosting or nesting, symbiotic 
fungi, or a particular level of nonnative species consistent with 
conservation needs of the listed species. The features may also be 
combinations of habitat characteristics and may encompass the 
relationship between characteristics or the necessary amount of a 
characteristic needed to support the life history of the species. In 
considering whether features are essential to the conservation of the 
species, the Service may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.
    The elfin-woods warbler is an endemic Puerto Rican bird with a very 
limited distribution. 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 
elfin-woods warbler populations, one each in eastern and western Puerto 
Rico.
    The eastern population occurs at El Yunque National Forest (EYNF) 
located within the Sierra de Luquillo mountains. The species' primary 
habitat in 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

[[Page 39081]]

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, referred to as ``Podocarpus''), 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, 
no 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 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 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 to 900 m (1,968 to 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). Habitat in this 
forest is predominantly 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 a mostly open canopy approximately 12 to 15 m (40 to 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 to 30 m (66 to 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 to 20 m (50 
to 66 ft) in height, with an open understory without grasses 
(Gonz[aacute]lez 2008, p. 6). Located adjacent to the MCF at elevations 
between 300 and 600 m (984 and 1,968 ft), these shade-grown coffee 
plantations extend the vegetation cover and provide habitat for the 
species (Gonz[aacute]lez 2008, p. 59).
    According to the habitat suitability model developed for the 
species, all the habitats described above occur within the intermediate 
to very high adequacy category (Col[oacute]n-Merced 2013, p. 57). This 
model is based on a combination of elevation and vegetation cover in 
areas where the species is known to occur. In addition, 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 that support its life-history processes. Thus, 
protection and maintenance of these forested habitat features are 
essential for rearing, growth, foraging, migration, and other normal 
behaviors of the species.
    Limited information is available concerning 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 breeding, reproduction, and rearing. 
The elfin-woods warbler's breeding occurs between March and June 
(Raffaele et al. 1998, p. 406). 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). The species' nest is described as a compact cup, 
usually close to the trunk and well hidden among epiphytes of small 
trees (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), 
and later, two nests were found in the MCF area (Arryo-V[aacute]zquez 
1992, p. 362). Both nests in the MCF were in 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). In 2004, the first nesting event in a cavity of a 
rotten Cyrilla racemiflora stump in the MCF area was reported 
(Rodr[iacute]guez-Mojica 2004, p. 22). 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. No other warbler 
species in Puerto Rico have been reported using such a nesting site 
(Rodr[iacute]guez-Mojica 2004, p. 23).
    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 and 
forest associations (shaded and forested corridors); secondary forests; 
and shade-grown coffee plantations. These habitats contain physical or 
biological features that are essential to the conservation of the 
elfin-woods warbler because they provide space for population growth 
and normal behavior; cover and shelter; and sites for breeding, 
rearing, and development of offspring.

[[Page 39082]]

Summary of Essential Physical or Biological Features

    We derived the specific physical or biological features (PBFs) 
essential to the conservation of the elfin-woods warbler from studies 
of this species' habitat, ecology, and life history as described above. 
Additional information can be found in the final listing rule published 
in the Federal Register on June 22, 2016 (81 FR 45035), and in our 
proposed critical habitat designation, which also published in the 
Federal Register on June 22, 2016 (81 FR 40632). We have determined 
that the following PBFs are essential to the conservation of elfin-
woods warbler:
    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 that are above 300 m in elevation and are dominated primarily by 
native vegetation; or
    b. Abandoned coffee plantations or agricultural lands (i.e., 
agricultural practices were discontinued) with native forest cover and 
a closed canopy found above 300 m in elevation.
    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 features that are essential to the conservation of 
the species and may require special management considerations or 
protection.
    The 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 the elfin-woods 
warbler may require special management considerations or protection to 
reduce the following threats: 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 following: The 
2014 candidate conservation agreement (CCA) signed by 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 its habitat in EYNF and MCF (USFWS 
2014); implementation of conservation agreements with private 
landowners to restore habitat and minimize habitat disturbance and 
fragmentation; and development and implementation of management plans 
for other protected lands where the species is found.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat.
    Because of the vulnerability associated with small populations, 
limited distributions, or both (as described in the final listing 
rule), conservation of the elfin-woods warbler requires protection of 
both existing occupied habitat and potential habitat (i.e., suitable 
for occupancy but currently unoccupied), and the establishment of new 
populations to reduce or eliminate such vulnerability. In this case, we 
considered potential habitat to be historically occupied areas that 
currently possess the PBFs suitable for elfin-woods warbler 
recolonization and subsequent persistence. Therefore, for the elfin-
woods warbler, in addition to areas occupied by the species at the time 
of listing, we are designating habitat outside the geographical area 
occupied by the species at the time of listing (Unit 3, Carite), which 
was historically occupied but is presently unoccupied, because it is 
essential for the conservation of the species and that the area 
contains one or more of those physical or biological features essential 
to the conservation of the species.
    Sources of data for this critical habitat designation 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 critical habitat boundaries, we used an 
existing elfin-woods warbler habitat suitability model (Col[oacute]n-
Merced 2013, p. 51). This model uses 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 (Anad[oacute]n-Irizarry 2017, pp. 
7-10; Anad[oacute]n-Irizarry et al. 2017, entire).
    In order to identify essential features 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-

[[Page 39083]]

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

    The final 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 locations meet the definition of 
geographic 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 the Geographical Area Occupied at the Time of Listing

    To consider for designation areas not occupied by the species at 
the time of the listing, we must demonstrate that these areas are 
essential for the conservation of the species and that the area 
contains one or more of those physical or biological features essential 
to the conservation of the species. To determine if these areas are 
essential for the conservation of the elfin-woods warbler, we 
considered the life history, status, habitat elements, and conservation 
needs of the species such as:
    (1) The importance of the area to the overall status of the species 
to prevent extinction and contribute to the species' conservation;
    (2) Whether the area contains the necessary habitat to support the 
species;
    (3) Whether the area provides connectivity between occupied sites 
for genetic exchange; and
    (4) 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 since 2000 (Anad[oacute]n-Irizarry 2006, p. 34; P[eacute]rez-
Rivera 2014, pers. comm.; Aide and Campos 2016, entire).
    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 6,660 ac (2,695 ha), and ranges between 820 
and 2,962 ft (250 and 903 m) in elevation (DNR 1976, p. 168). The mean 
annual precipitation is 225 cm (88.5 in), and the mean temperature is 
72.3 degrees Fahrenheit ([deg]F) (22.7 degrees Celsius ([deg]C)) (DNR 
1976, p. 169; Silander et al. 1986, p. 183).
    The CCF contains the following forest types, which contain the PBFs 
for the elfin-woods warbler: 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 and are located 
within the same life zones in CCF as they are in EYNF and MCF (Ewel and 
Whitmore 1973, p. 74).
    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 
those studies. The elfin-woods warbler may be difficult to detect owing 
to its persistent and relatively sedentary behavior and because it has 
an affinity for certain small and isolated pockets of forest 
(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, entire). In any case, the CCF contains habitat that is likely 
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 in 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 increases 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. 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.

General Information on the Maps of the Critical Habitat Designation

    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by buildings, pavement, and other structures because such 
lands lack physical or biological features necessary for 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 final rule 
have been excluded by text in the rule and are not designated as 
critical habitat. Therefore, a Federal action involving these lands 
will not trigger section 7 consultation with respect to critical 
habitat and the requirement of no adverse modification unless the 
specific action would affect the physical or biological features in the 
adjacent critical habitat.
    We are designating as critical habitat in areas that we have 
determined were occupied at the time of listing in 2016 and contain 
physical or biological features to support life-history processes 
essential to the conservation of the species. We are also designating 
specific areas within one unit outside of the geographical area 
occupied by the species at the time of listing, which were historically 
occupied but are presently unoccupied, because we have determined that 
such areas are essential for the conservation of elfin-woods warbler 
and that the area contains one or more of those physical or biological 
features essential to the conservation of the warbler.
    All units were designated based on one or more of the elements of 
physical or biological features being present to support elfin-woods 
warbler's life processes. Some units contained all of the identified 
elements of physical or biological features and supported multiple life 
processes. Some units contained only some elements of the physical or 
biological features necessary to support the elfin-woods warbler's 
particular use of that habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document under Regulation

[[Page 39084]]

Promulgation. We include more detailed information on the boundaries of 
the critical habitat designation in the discussion of individual units 
below. We will make the coordinates or plot points or both on which 
each map is based available to the public on https://www.regulations.gov 
under Docket No. FWS-R4-ES-2020-0030 and at https://www.fws.gov/caribbean.

Final Critical Habitat Designation

    We are designating approximately 27,488 acres (11,125 hectares) in 
three units as critical habitat for elfin-woods warbler. The critical 
habitat areas described below constitute our best assessment of areas 
that meet the definition of critical habitat for the elfin-woods 
warbler. Those three units are: (1) Maricao, (2) El Yunque, and (3) 
Carite. Table 1 shows the name, occupancy of the unit, municipality, 
land ownership, and approximate area of the designated critical habitat 
units for the elfin-woods warbler.

                         Table 1--Location, Occupancy Status, Ownership, and Size of Elfin-Woods Warbler Critical Habitat Units
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Land ownership in acres (hectares)
              Unit                    Occupied            Municipality       ---------------------------------------------------------   Total area in
                                                                                   Federal          Commonwealth         Private        acres (hectares)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1: Maricao......................  Yes.............  Maricao, San German,                      0      8,861 (3,586)      4,117 (1,666)     12,978 (5,252)
                                                     Sabana Grande, Yauco.
2: El Yunque....................  Yes.............  R[iacute]o Grande,           11,430 (4,626)                  0                  0     11,430 (4,626)
                                                     Canovanas, Las Piedras,
                                                     Naguabo, Ceiba.
3: Carite.......................  No..............  Cayey, San Lorenzo,                       0      3,080 (1,247)                  0      3,080 (1,247)
                                                     Guayama, Patillas.
                                                                             ---------------------------------------------------------------------------
    Totals......................  ................  ........................     11,430 (4,626)     11,941 (4,833)      4,117 (1,666)    27,488 (11,125)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for elfin-woods warbler, below.

Unit 1: Maricao

    Unit 1 consists of 12,978 ac (5,252 ha). Approximately 8,861 ac 
(3,586 ha) are owned by the Commonwealth and managed by the PRDNER, and 
4,117 ac (1,666 ha) are in private ownership. This unit is located 
within the municipalities of Maricao, San Germ[aacute]n, Sabana Grande, 
and Yauco and 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 65 miles (mi) (105 kilometers (km)) 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 the PBFs and a core population 
of the species, and will likely contribute to range expansion of the 
elfin-woods warbler by serving as a source of birds to found elfin-
woods warbler populations in Carite, which is currently unoccupied but 
contains 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.

Unit 2: El Yunque

    Unit 2 consists of 11,430 ac (4,626 ha) 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 east of State Road PR-186, north of 
State Road PR-31, and approximately 15 mi (24 km) 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 and contains PBFs 1(b) and 1(c) (see Physical or Biological 
Features Essential to the Conservation of the Species, above). This 
unit represents a core population of the species and helps to maintain 
the elfin-woods warbler's geographical range.
    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.

Unit 3: Carite

    Unit 3 consists of 3,080 ac (1,247 ha) 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 23 mi (37 km) 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 and is 
considered to be essential for the conservation of the species. As 
discussed above (see Criteria Used to Identify Critical Habitat), this 
unit currently has the habitat features, including all of the PBFs, to 
support the elfin-woods warbler. Therefore, 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. 
Therefore, we conclude that this unit is essential for the conservation 
of the elfin-woods warbler.

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.
    We published a final regulation with a revised definition of 
destruction or adverse modification on August 27, 2019 (84 FR 44976). 
Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat

[[Page 39085]]

as a whole for the conservation of a listed species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate formal consultation on previously reviewed 
actions. These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation, we have listed a new species 
or designated critical habitat that may be affected by the Federal 
action, or the action has been modified in a manner that affects the 
species or critical habitat in a way not considered in the previous 
consultation. In such situations, Federal agencies sometimes may need 
to request reinitiation of consultation with us, but the regulations 
also specify some exceptions to the requirement to reinitiate 
consultation on specific land management plans after subsequently 
listing a new species or designating new critical habitat. See the 
regulations for a description of those exceptions.

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

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that the Services may, during a consultation under 
section 7(a)(2) of the Act, find are likely to destroy or adversely 
modify critical habitat include, but are not limited to:
    (1) 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 and 
forest associations. 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 (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by the 
Department of Defense, 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 final 
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

[[Page 39086]]

taking into consideration the economic impact, national security 
impact, and any other relevant impact of specifying any particular area 
as critical habitat. The Secretary may exclude an area from critical 
habitat if he determines that the benefits of such exclusion outweigh 
the benefits of specifying such area as part of the critical habitat, 
unless he determines, based on the best scientific data available, that 
the failure to designate such area as critical habitat will result in 
the extinction of the species. In making that determination, the 
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.
    The first sentence in section 4(b)(2) of the Act requires that we 
take into consideration the economic, national security, or other 
relevant impacts of designating any particular area as critical 
habitat. We describe below the process that we undertook for taking 
into consideration each category of impacts and our analyses of the 
relevant impacts.

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 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 a 
discretionary 4(b)(2) exclusion analysis.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from the proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the elfin-woods warbler (Abt Associates, Inc. 
2016). We began by conducting a screening analysis of the proposed 
designation of critical habitat in order to focus our analysis on the 
key factors that are likely to result in incremental economic impacts. 
The purpose of the screening analysis is to filter out particular 
geographic areas of critical habitat that are already subject to such 
protections and are, therefore, unlikely to incur incremental economic 
impacts. In particular, the screening analysis considers baseline costs 
(i.e., absent critical habitat designation) and includes 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. 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 are unoccupied by the species and thus may require additional 
management or conservation efforts as a result of the critical habitat 
designation for the species; these additional efforts may incur 
incremental economic impacts. This screening analysis combined with the 
information contained in our IEM are what we consider our draft 
economic analysis (DEA) of the proposed critical habitat designation 
for the elfin-woods warbler; our DEA is summarized in the narrative 
below. The DEA, dated March 7, 2016, was made available for public 
review from June 23, 2016, through August 22, 2016 (81 FR 40632). We 
did not receive any public comments on the DEA. A copy of the DEA may 
be obtained by contacting the Caribbean Ecological Services Field 
Office (see ADDRESSES) or by downloading from the internet at https://www.regulations.gov.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities. As 
part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation. In our evaluation of the probable 
incremental economic impacts that may result from the 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 their activities have 
any Federal involvement. Critical habitat designation generally will 
not affect activities that do not have any Federal involvement; under 
the Act, designation of critical habitat only affects activities 
conducted, funded, permitted, or authorized by Federal agencies. In 
areas where the elfin-woods warbler is present, Federal agencies 
already are required to consult with the Service under section 7 of the 
Act on activities they fund, permit, or implement that may affect the 
species. When this final critical habitat designation rule becomes

[[Page 39087]]

effective, consultations to avoid the destruction or adverse 
modification of critical habitat will be incorporated into the existing 
consultation process.
    In our IEM, we attempted to clarify the distinction between the 
effects that will result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the elfin-
woods warbler's critical habitat. Because the majority of the critical 
habitat units are already managed for the conservation of natural 
resources, all units have co-occurring federally listed species, and 
two of the three 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 requests for technical assistance, 2.4 informal 
consultations, and 0.6 formal consultations per year will consider 
critical habitat for the elfin-woods warbler. The 363 ac (146.9 ha) we 
are including in Unit 1 of our critical habitat designation, after the 
proposed designation and DEA were complete, does not significantly 
alter the economic predictions. Within this 363 ac, there have been no 
consultations and one species list request in the past 5 years.
    In addition, because there are other federally listed species in 
all units of the critical habitat for elfin-woods warbler, 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.
    We note that ``any project modifications or conservation measures 
recommended to prevent adverse modification of the elfin-woods 
warbler's critical habitat 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 Associates, Incorporated 2016, p. 11). 
Federally listed species occupy areas in the three critical habitat 
units for the elfin-woods warbler. Therefore, we do not expect 
substantial impacts within any geographic area or to any sector as a 
result of this critical habitat designation.
    Based on peer review comments that identified an area that is 
occupied by the species and has the PBFs that support the species, we 
added 363 ac (146.9 ha) to proposed critical habitat in Unit 1 
(Maricao). This added area consists of 355 ac within lands managed for 
conservation by the Puerto Rico Department of Natural and Environmental 
Resources, with the remaining 8 ac privately owned. The incremental 
economic effects of this addition are minimal, because the area being 
added is 1.3 percent of the total critical habitat, predominantly 
contains lands managed for conservation, and harbors federally listed 
species covered under section 7 of the Act.
    Based on the finding that the critical habitat designation will 
have minimal impact on land use or other activities (i.e., there is 
little incremental difference 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.

Exclusions Based on Economic Impacts

    The first sentence of section 4(b)(2) of the Act requires the 
Service to consider the economic impacts (as well as the impacts on 
national security and any other relevant impacts) of designating 
critical habitat. In addition, economic impacts may, for some 
particular areas, play an important role in the discretionary section 
4(b)(2) exclusion analysis under the second sentence of section 
4(b)(2). In both contexts, the Service has considered the probable 
incremental economic impacts of the designation. When the Service 
undertakes a discretionary section 4(b)(2) exclusion analysis with 
respect to a particular area, we weigh the economic benefits of 
exclusion (and any other benefits of exclusion) against any benefits of 
inclusion (primarily the conservation value of designating the area). 
The conservation value may be influenced by the level of effort needed 
to manage degraded habitat to the point where it could support the 
listed species.
    The Service uses its discretion in determining how to weigh 
probable incremental economic impacts against conservation value. The 
nature of the probable incremental economic impacts, and not 
necessarily a particular threshold level, triggers considerations of 
exclusions based on probable incremental economic impacts. For example, 
if an economic analysis indicates high probable incremental impacts of 
designating a particular critical habitat unit of lower conservation 
value (relative to the remainder of the designation), the Service may 
consider exclusion of that particular unit.
    As discussed above, the Service considered the economic impacts of 
the critical habitat designation and the Secretary is not exercising 
his discretion to exclude any areas from this designation of critical 
habitat for the elfin-woods warbler based on economic impacts.

Exclusions Based on Impacts on National Security and Homeland Security

    Under section 4(b)(2) of the Act, we consider whether there are 
lands where a national security impact might exist. We have determined 
that the lands within the final 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 exercising his discretion to exclude any areas from the final 
designation based on impacts on national security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether there are 
permitted conservation plans covering the species in the area such as 
HCPs, safe harbor agreements, or candidate conservation agreements with 
assurances, or whether there are non-permitted conservation agreements 
and partnerships that would be encouraged by designation of, or 
exclusion from, critical habitat. In addition, we look at the existence 
of tribal conservation plans and partnerships and consider the 
government-to-government relationship of the United States with tribal 
entities. We also consider any social impacts that might occur because 
of the designation.
    In preparing this final rule, we have determined that some areas 
within the final designation are included in management plans or other 
conservation agreements such as the Service's Wildlife Conservation 
Extension Agreements with private landowners, Natural Resources 
Conservation Service's conservation contracts with private landowners, 
cooperative

[[Page 39088]]

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 tribal lands in Puerto Rico. Therefore, 
the Secretary is not exercising his discretion to exclude any areas 
from the final designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget (OMB) will 
review all significant rules. The Office of Information and Regulatory 
Affairs has waived their review regarding their significance 
determination of this rule.
    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.
    Under the RFA, as amended, and as understood in the light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking only 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 out by the agency is not likely 
to destroy or adversely modify critical habitat. Therefore, under 
section 7, only Federal action agencies are directly subject to the 
specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies will be directly 
regulated by this designation. There is no requirement under RFA to 
evaluate the potential impacts to entities not directly regulated. 
Moreover, Federal agencies are not small entities. Therefore, because 
no small entities are directly regulated by this rulemaking, the 
Service certifies that the final critical habitat designation will not 
have a significant economic impact on a substantial number of small 
entities.
    During the development of this final rule, we reviewed and 
evaluated all information submitted during the comment period that may 
pertain to our consideration of the probable incremental economic 
impacts of this critical habitat designation. Based on this 
information, we affirm our certification that this final critical 
habitat designation will not have a significant economic impact on a 
substantial number of small entities, and a regulatory flexibility 
analysis is not required.

Executive Order 13771

    We do not believe this rule is an E.O. 13771 (``Reducing Regulation 
and Controlling Regulatory Costs'') (82 FR 9339, February 3, 2017) 
regulatory action because we believe this rule is not significant under 
E.O. 12866; however, the Office of Information and Regulatory Affairs 
has waived their review regarding their E.O. 12866 significance 
determination of this rule.

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. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration. Our economic analysis finds that none of 
these criteria are relevant to this analysis. Thus, based on 
information in the economic analysis, energy-related impacts associated 
with elfin-woods warbler conservation activities within critical 
habitat are not expected. As such, the designation of critical habitat 
is not expected to significantly affect

[[Page 39089]]

energy supplies, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly 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 will significantly or uniquely 
affect small governments because the majority of the critical habitat 
units are already managed for natural resource conservation by the 
Federal government or the Commonwealth of Puerto Rico, and all critical 
habitat 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 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 does not pose significant takings implications for lands within 
or affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of the proposed critical habitat designation with, 
appropriate State resource agencies in Puerto Rico. We did not receive 
comments from Federal agencies for this rule. From a federalism 
perspective, the designation of critical habitat directly affects only 
the responsibilities of Federal agencies. The Act imposes no other 
duties with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the rule does not have 
substantial direct effects either on the States, or on the relationship 
between the national government and the States, or on the distribution 
of powers and responsibilities among the various levels of government. 
The designation may have some benefit to these governments because the 
areas that contain the features essential to the conservation of the 
species are more clearly defined, and the physical or biological 
features of the habitat necessary 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 they no longer 
have to wait for case-by-case section 7 consultations to occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) 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 Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the 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 are designating critical 
habitat in accordance with the provisions of the Act. To assist the 
public in understanding the habitat needs of the species, this rule 
identifies the elements of physical or biological

[[Page 39090]]

features essential to the conservation of the elfin-woods warbler. 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.

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

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

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. As discussed above, there are no 
tribal lands in Puerto Rico, and therefore, we have identified no 
tribal interests that will be affected by this final rulemaking.

References Cited

    A complete list of all references cited is available on the 
internet at https://www.regulations.gov under Docket No. FWS-R4-ES-2020-
0030 and upon request from the Caribbean Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

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

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


0
2. Amend Sec.  17.11(h) by revising the entry for ``Warbler, elfin-
woods (Setophaga angelae)'' under ``BIRDS'' in the List of Endangered 
and Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
              Birds
 
                                                  * * * * * * *
Warbler, elfin-woods............  Setophaga angelae.  Wherever found....  T              81 FR 40534, 6/22/2016;
                                                                                          50 CFR 17.41(e); \4d\,
                                                                                          50 CFR 17.95(b).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95, amend paragraph (b) by adding an entry for ``Elfin-
woods Warbler (Setophaga angelae)'', immediately following the entry 
for ``Least Bell's Vireo (Vireo bellii pusillus)'', to read as set 
forth below:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *

Elfin-woods Warbler (Setophaga angelae)

    (1) Critical habitat units are depicted for Puerto Rico, on the 
maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the elfin-woods warbler consist of the 
following 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

[[Page 39091]]

lands that are above 300 m in elevation and dominated primarily by 
native vegetation; or
    (B) Abandoned coffee plantations or agricultural lands (i.e., 
agricultural practices were discontinued) with native forest cover and 
a closed canopy found above 300 m in elevation.
    (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 (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 
July 30, 2020.
    (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 of Agriculture 2007 digital orthophoto 
mosaic, over a base of U.S. Geological Survey 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 83 coordinates. The maps in this entry, as modified by 
any accompanying regulatory text, establish the boundaries of the 
critical habitat designation. The coordinates or plot points or both on 
which each map is based are available to the public at the Service's 
internet site, https://www.regulations.gov under Docket No. FWS-R4-ES-
2020-0030, 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:
BILLING CODE 4333-15-P

[[Page 39092]]

[GRAPHIC] [TIFF OMITTED] TR30JN20.082

    (6) Unit 1: Maricao; Maricao, San Germ[aacute]n, Sabana Grande, and 
Yauco Municipalities, Puerto Rico.
    (i) General description: Unit 1 consists of 12,978 ac (5,252 ha). 
Approximately 8,861 ac (3,586 ha) are owned by the Commonwealth and 
managed by the Puerto Rico Department of Natural and Environmental 
Resources, and 4,117 ac (1,666 ha) are in private ownership. The unit 
is located north of State Road PR-2, south of State Road PR-105, and 
approximately 105 kilometers 65 mi (105 km) west of the International 
Airport Luis Mu[ntilde]oz Marin.
    (ii) Map of Unit 1 habitat follows:

[[Page 39093]]

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    (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 11,430 ac (4,626 ha) 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:

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[GRAPHIC] [TIFF OMITTED] TR30JN20.084

    (8) Unit 3: Carite; Cayey, San Lorenzo, Guayama, and Patillas 
Municipalities, Puerto Rico.
    (i) General description: Unit 3 consists of 3,080 ac (1,247 ha) 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 23 mi (37 km) south of the International Airport Luis 
Mu[ntilde]oz Marin.
    (ii) Map of Unit 3 follows:

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[GRAPHIC] [TIFF OMITTED] TR30JN20.085

* * * * *

Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-12070 Filed 6-29-20; 8:45 am]
BILLING CODE 4333-15-P