Endangered and Threatened Wildlife and Plants; Reclassification of Palo de Rosa From Endangered to Threatened With a Section 4(d) Rule, 66591-66607 [2022-23822]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 87, Number 213 (Friday, November 4, 2022)]
[Rules and Regulations]
[Pages 66591-66607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23822]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2020-0059; FF09E22000 FXES1113090FEDR 223]
RIN 1018-BE56


Endangered and Threatened Wildlife and Plants; Reclassification 
of Palo de Rosa From Endangered to Threatened With a Section 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
reclassifying the palo de rosa (Ottoschulzia rhodoxylon) from 
endangered to threatened under the Endangered Species Act of 1973, as 
amended (Act). This action is based on our evaluation of the best 
available scientific and commercial information, which indicates that 
the species' status has improved such that it is not currently in 
danger of extinction throughout all or a significant portion of its 
range, but it is still likely to become so in the foreseeable future. 
We are also finalizing a rule under section 4(d) of the Act that 
provides for the conservation of the palo de rosa.

DATES: This rule is effective December 7, 2022.

ADDRESSES: This final rule, supporting documents we used in preparing 
this rule, and public comments we received are available on the 
internet at https://www.regulations.gov under Docket No. FWS-R4-ES-
2020-0059.

FOR FURTHER INFORMATION CONTACT: Edwin Mu[ntilde]iz, Field Supervisor, 
U.S. Fish and Wildlife Service, Caribbean Ecological Services Field 
Office, P.O. Box 491, Boquer[oacute]n, PR 00622; telephone (787) 851-
7297. Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
reclassification from endangered to threatened if it no longer meets 
the definition of an endangered species (in danger of extinction 
throughout all or a significant portion of its range). The palo de rosa 
was listed as endangered

[[Page 66592]]

May 10, 1990 (55 FR 13488, April 10, 1990), and we are finalizing our 
proposed reclassification of the palo de rosa as threatened. We have 
determined the palo de rosa does not meet the Act's definition of an 
endangered species but it does meet the definition of a threatened 
species (likely to become an endangered species throughout all or a 
significant portion of its range). Reclassifying a species as a 
threatened species can be completed only by issuing a rule through the 
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. This rule revises part 17 of title 50 of 
the Code of Federal Regulations (50 CFR part 17) to reclassify the palo 
de rosa from an endangered to a threatened species on the Federal List 
of Endangered and Threatened Plants and establish provisions under 
section 4(d) of the Act that are necessary and advisable to provide for 
the conservation of this species (a ``4(d) rule'').
    The basis for our action. Under the Act, we may determine that a 
species is an endangered species or a threatened species because of any 
of five factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. Based on the status review, the 
current threats analysis, and evaluation of conservation measures 
discussed in this rule, we conclude that the palo de rosa no longer 
meets the Act's definition of an endangered species and should be 
reclassified to a threatened species. The species is no longer in 
danger of extinction throughout all or a significant portion of its 
range, but is likely to become so within the foreseeable future. The 
palo de rosa is affected by the following current and ongoing threats: 
habitat loss, degradation, and fragmentation from urban development; 
agricultural practices and rights-of-way maintenance coupled with 
habitat intrusion by exotics; other natural or manmade factors, such as 
hurricanes; and the species' slow growth, limited dispersal, and low 
recruitment.
    We are promulgating a section 4(d) rule. We are adopting the Act's 
section 9(a)(2) prohibitions as a means to provide protective 
mechanisms to the palo de rosa. We include specific tailored exceptions 
to these prohibitions to allow certain activities covered by a permit 
or actions with seeds of cultivated specimens accompanied by a 
statement of ``cultivated origin.''

Abbreviations and Acronyms Used

    For the convenience of the reader, the following list explains 
abbreviations and acronyms used in this document:

CCF = Cambalache Commonwealth Forest
GCF = Gu[aacute]nica Commonwealth Forest
GuCF = Guajataca Commonwealth Forest
IPCC = Intergovernmental Panel on Climate Change
LCNWR = Laguna Cartegena National Wildlife Refuge
MAPR = herbarium of the Department of Biology at the University of 
Puerto Rico at Mayaguez
PLN = Para La Naturaleza, Inc.
PRDNER = Puerto Rico Department of Natural and Environmental 
Resources
PREPA = Puerto Rico Energy and Power Authority
PRHTA = Puerto Rico Highway and Transportation Authority
RACF = R[iacute]o Abajo Commonwealth Forest
SCF = Sus[uacute]a Commonwealth Forest
UPR = herbarium at the Rio Piedras Botanical Garden, of the 
University of Puerto Rico
UPRRP = herbarium of the University of Puerto Rico at Rio Piedras

Previous Federal Actions

    Please refer to the proposed rule to reclassify the palo de rosa 
published on July 14, 2021 (86 FR 37091), for a detailed description of 
previous Federal actions concerning this species.

Summary of Comments and Recommendations

    In the proposed rule published on July 14, 2021 (86 FR 37091), we 
requested that all interested parties submit written comments on the 
proposal by September 13, 2021. We also contacted appropriate Federal 
and State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. 
Newspaper notices announcing the proposed rule and inviting general 
public comment were published in Spanish and English in the El Nuevo 
Dia newspaper. We did not receive any requests for a public hearing or 
public comments on the proposed rule.

Peer Review Comments

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' which 
was published on July 1, 1994 (59 FR 34270), and our August 22, 2016, 
Director's Memorandum ``Peer Review Process,'' we sought the expert 
opinion of five appropriate and independent specialists regarding 
scientific data and interpretations contained in the proposed rule and 
received no responses. We also requested review from our Federal and 
Territorial partners and received no comments.

Summary of Changes From the Proposed Rule

    We have made minor typographical or stylistic changes and 
corrections, but no substantive changes, to the July 14, 2021, proposed 
rule (86 FR 37091).

I. Final Reclassification Determination

Species Information

    A thorough review of the taxonomy, life history, ecology, and 
overall viability of the palo de rosa was presented in the 5-year 
review (USFWS 2017, entire) and the proposed rule published July 14, 
2021 (86 FR 37091). Below, we present a brief summary of the biological 
and distributional information for the palo de rosa. Please refer to 
the 5-year review and proposed rule for more detailed information.

Taxonomy and Species Description

    The palo de rosa is a small evergreen tree that may reach up to 15 
meters (m) (49 feet (ft)) in height and is a member of the Icacinaceae 
family (USFWS 1994, p. 1). The branches are smooth and dark gray with 
ovate, round, or elliptic leaves (Liogier 1994, p. 41). Flowers are 
solitary or grouped in a three- to five-flower cluster, and the small 
fruit is smooth with a thin outer layer that turns dark purple when 
ripe. The seed is about 2 centimeters (cm) (0.8 inches (in)) long 
(Liogier 1994, p. 41; Santiago Valent[iacute]n and Viruet-Oquendo 2013, 
p. 62). Palo de rosa trees may be difficult to identify based on 
sterile material.

Reproductive Biology

    When the palo de rosa recovery plan was written, information about 
the flowering and fruiting pattern was limited due to the species not 
being well-studied and the infrequent observation of reproductive 
events, although flowering was observed in May and July 1993 (USFWS 
1994, p. 5). The species bears hermaphrodite flowers, flowers for a 
short period at the beginning of the rainy season and develops fruits 
subsequently until November (Breckon and Kolterman 1993, p. 15; 
Santiago-Valent[iacute]n and Viruet-Oquendo 2013, p. 62). Few buds and 
flowers occur from April to May with an explosive flowering in June 
coinciding with the beginning of the rainy season in May. Herbarium 
specimens demonstrated flowering and fruiting between May and July 
(Santiago-Valentin and Viruet-Oquendo 2013, p. 62). Flower and fruit 
production are documented in

[[Page 66593]]

individuals with diameters at breast height greater than 5 in (12.7 
cm). Despite the high number of adult individuals reported, only a few 
reach that stem size (Breckon and Kolterman 1993, p. 15; USFWS 2009, 
unpubl. data).
    The cluster distribution of seedlings under the parent trees 
indicates that seeds are dispersed by gravity. Subpopulations in 
northern Puerto Rico are located on top of limestone hills indicating 
that some disperser (e.g., animal vector) took them there in the past 
although no species has been observed acting as a seed disperser 
(Breckon and Kolterman 1993, p. 15); USFWS 2017, p. 12). Dispersal by 
water has been hypothesized for the subpopulations in the southern 
coast located at the bottom of small drainages. However, establishment 
of seedlings in these drainages is low likely because seeds are buried 
by sediments and small plants are uprooted by high flows (Monsegur-
Rivera 2007, pers. obs.).
    Due to the infrequency of fruit production, germination experiments 
have been limited. Attempts to germinate seeds from the Dorado (Mogotes 
de Higuillar) population (northern Puerto Rico) have proven to be 
difficult (10 percent success) as the majority of seeds were attacked 
by insects (Coleoptera) (Ruiz Lebr[oacute]n 2002, p. 2). The species 
also has been germinated by PRDNER and the University of Puerto Rico 
with a 50 percent germination success (Caraballo 2009, pers. comm.). 
Propagation of the species is feasible and may be used in palo de rosa 
recovery efforts. Palo de rosa saplings have been planted in the 
Sus[uacute]a and Guajataca Commonwealth Forests as well as on lands 
within Fort Buchanan, which is owned by the U.S. Army. Palo de rosa is 
not known to reproduce vegetatively although multiple stems may regrow 
from a tree that has been cut.

Distribution, Abundance, and Habitat

    The palo de rosa was described by Ignatius Urban (1908) from 
material collected by Leopold Krug near the municipality of 
Mayag[uuml]ez in 1876 (Liogier 1994, p. 42). Based on the description 
of the type locality, the collection site may correspond to an area 
known as Cerro Las Mesas. At the time of listing, the palo de rosa was 
known from nine individuals in three areas and considered endemic to 
Hispaniola and Puerto Rico (55 FR 13488, April 10, 1990, p. 13489). 
Subpopulations and populations were not defined or identified at the 
time of listing. The species was known from the limestone hills near 
the municipality of Bayam[oacute]n in northern Puerto Rico, several 
sites in the Gu[aacute]nica Commonwealth Forest (GCF) in southwest 
Puerto Rico, and one individual on the southern slopes of the Maricao 
Commonwealth Forest (55 FR 13488, April 10, 1990, p. 13489).
    At the time the recovery plan was written in 1994, there was little 
information on the species' distribution, ecology, and reproductive 
biology; therefore, in the recovery plan, species experts considered 
each subpopulation or cluster of individuals as a population. The 
recovery plan describes additional individuals observed as a result of 
increased survey efforts in suitable habitat. In the 1994 recovery 
plan, we estimated 200 palo de rosa individuals in 16 populations (now 
defined as subpopulations and noted with ``(RP)'' in the table in the 
proposed rule). An additional population (now considered a 
subpopulation) was reported in 1996, increasing the total number of 
trees to 207 adult individuals (Breckon and Kolterman 1996, p. 4).
    The current understanding of the palo de rosa's biological and 
ecological requirements has led us to define a population as a 
geographical area with unique features (substrate or climate) and 
continuous forested habitat that provides for genetic exchange among 
subpopulations (i.e., cross-pollination) where the species occurs. We 
further considered natural barriers (e.g., mountain ranges and river 
valleys) and extensive gaps of forested habitat to discern the 
boundaries of these broader populations because connectivity between 
subpopulations is critical to support a functional palo de rosa 
population due to the cross-pollination requirement of the species. 
Furthermore, the flowering of the palo de rosa is sporadic and not 
synchronized, thus prompting us to further define a population as 
groups of subpopulations that show connectivity to secure cross-
pollination. Based on the above information, we have determined the 
palo de rosa to be distributed across Puerto Rico in 14 populations 
composed of 66 subpopulations containing 1,144 individuals (not 
including seedlings). Following this approach, 8 of the 14 current 
populations (containing 47 subpopulations with approximately 804 
individuals) occur in the geographical areas associated with the 16 
populations (now defined as subpopulations) included in the Service's 
1994 recovery plan. Since 1994, we have identified 6 additional 
populations (as currently defined) composed of 19 subpopulations (342 
individuals) ranging in size from 5 to 124 individuals in areas 
associated with remnants of forested habitat suitable for the species. 
Thus, these additional occurrences are key in understanding the current 
condition of the species.
    Currently, the number of palo de rosa individuals has increased 
from 9 individuals on protected lands at the time of listing to 407 
individuals (representing 36 percent of known individuals or 32 percent 
of subpopulations) occurring in areas managed for conservation (e.g., 
Commonwealth Forest and Federal lands). An additional 396 individuals 
(38 percent of subpopulations) occur in areas subject to little habitat 
modification due to the steep topography in the northern karst region 
of Puerto Rico. The remaining 30 percent of the subpopulations 
(containing approximately 341 individuals) occur within areas severely 
encroached upon by and vulnerable to urban or infrastructure 
development. However, the resiliency of all subpopulations depends on 
interaction (cross-pollination) with nearby subpopulations. Despite the 
increase in the number of known subpopulations and individuals, there 
are no records of recruited individuals reaching reproductive size in 
the past three decades. We also do not have any records of recent 
dispersal and range expansion of the species. The following discussion 
provides the most updated information on these populations, and their 
respective geographical areas. Please refer to our July 14, 2021, 
proposed rule (86 FR 37097-37100) for a table of the currently known 
natural populations, subpopulations, and numbers of adult individuals 
of palo de rosa in Puerto Rico.
    The distribution of the palo de rosa extends along the southern 
coast of Puerto Rico from the municipality of Cabo Rojo east to the 
municipality of Guayanilla in five geographical areas or populations: 
(1) Gu[aacute]nica Commonwealth Forest (GCF), (2) Montes de Barinas, 
(3) Guayanilla-Pe[ntilde]uelas, (4) Sus[uacute]a Commonwealth Forest 
(SCF), and (5) Cerro Las Mesas-Sierra Bermeja. In addition, the palo de 
rosa extends along the northern coast of Puerto Rico from the 
municipality of Aguadilla east to the municipality of Fajardo in the 
following nine areas or populations: (1) Aguadilla-Quebradillas, (2) 
Camuy-Hatillo, (3) Arecibo, (4) Utuado-Ciales, (5) Arecibo-Vega Baja, 
(6) Dorado, (7) La Virgencita, (8) Mogotes de Nevares, and (9) San 
Juan-Fajardo (USFWS 2017, p. 11).
    The range of the species extends to Hispaniola (Dominican Republic 
and Haiti) (Acevedo-Rodr[iacute]guez and Strong, 2012, p. 369; Axelrod 
2011, p. 184);

[[Page 66594]]

however, there is little information on the population structure and 
status of the palo de rosa in these countries, and information is 
limited to scattered herbarium collections. In the Dominican Republic, 
the species occurs in Provincia (Province) de La Altagracia, Provincia 
de Saman[aacute], Provincia de Puerto Plata, Provincia de Pedernales, 
and Provincia de San Cristobal (Jard[iacute]n Bot[aacute]nico Santo 
Domingo (JBSD), unpubl. data). On the northern coast of Haiti, the palo 
de rosa has been recorded at ``Massif du Nord'' along a dry river 
(JBSD, unpubl. data). However, these herbarium specimens provide no 
data on the subpopulation or population abundance or number of 
associated individuals. The palo de rosa is categorized as critically 
endangered according to the Red List of Vascular Flora in the Dominican 
Republic (Lista Roja de la Flora Vascular en Rep[uacute]blica 
Dominicana), an assessment of the conservation status of all vascular 
plants in the Dominican Republic as determined by the Ministry of 
Higher Education Science and Technology Ministry (Garcia et al. 2016, 
p. 4).
    The palo de rosa occurs in variable habitats but is dependent on 
the specific microhabitat conditions. On dry limestone forest like the 
GCF, the species occurs at the bottom of drainages that provide 
moisture, whereas at the SCF, the palo de rosa occurs along the borders 
of rivers. The subpopulations along the northern karst of Puerto Rico 
are found on the top of limestone hills, possibly because those areas 
have no agricultural value, and so were not impacted by conversion to 
agricultural lands. Such variability in habitats indicates the species' 
current fragmented distribution and lack of connectivity between 
populations are the result of earlier land-clearing and habitat 
modification. Information from specimens deposited at multiple herbaria 
(i.e., New York Botanical Garden, Smithsonian Institution, UPR, UPRRP, 
and MAPR) suggests the palo de rosa was originally more common and 
widespread throughout Puerto Rico, even extending to the coastal 
lowlands of Puerto Rico, including dune ecosystems. Our July 14, 2021, 
proposed rule (86 FR 37097-37100) includes additional details and 
information on the current abundance, distribution, and habitat of palo 
de rosa populations in Puerto Rico.

Recruitment and Population Structure

    At least 25 of the 66 subpopulations show evidence of fruit 
production and seedling or sapling recruitment (USFWS 2017, pp. 8, 11-
12). Fruit production and seed germination have been documented in 
several subpopulations (Monsegur-Rivera 2016, pers. obs.). However, 
individual palo de rosa saplings and trees grow extremely slowly, with 
an estimated height of less than 1 m (3.3 ft) after 20 years growth. 
Under natural conditions, palo de rosa individuals may require at least 
40 years to reach a reproductive size, and the currently known 
subpopulations are experiencing slow recruitment (Monsegur-Rivera 2018, 
pers. obs.). Palo de rosa seeds are dispersed by gravity, limiting 
recruitment to the proximity of the parental tree. Thus, the species' 
potential to colonize further suitable habitat is limited and survival 
of clustered seedlings may be reduced due to closed canopy conditions 
and competition with the parental tree.
    Population dynamics and survey assessments support the hypothesis 
that the palo de rosa is a late-successional species whose saplings may 
remain dormant under closed canopy conditions until there is some 
natural disturbance that provides favorable conditions for the 
development of the saplings. Thus, the species may require an open 
canopy to promote seedling growth and is adapted to natural 
disturbances such as hurricanes (Breckon and Kolterman 1996). Under 
this scenario, the natural populations show a slow natural recruitment 
that requires stable habitat conditions with a regime of natural 
disturbance (i.e., tropical storms or hurricanes). Although natural 
disturbances (e.g., tropical storms or hurricanes) can promote the 
recruitment of saplings into adulthood, the palo de rosa population 
should be composed of different size classes in order to be able to 
withstand such stochastic events.
    Reproductive events (i.e., flowering and fruiting) have been 
associated with bigger trees as observed in four subpopulations, where 
tree diameters reach 13-20.5 cm (5.1-8.1 in) and canopies are higher 
(at least 10 m) (32.8 ft) (Breckon et al.1992, p. 8; USFWS 2009, p. 4). 
For example, one large tree in the El Costillar-R[iacute]o Guajataca 
subpopulation had an estimated 1,000 seedlings under 1 tree with an 
almost 90 percent survivorship of 156 monitored seedlings after 18 
months (Breckon et al. 1992, p. 8). Further visits to this 
subpopulation indicate the survival of seedlings and saplings remains 
high with evidence of additional recruitment (Monsegur-Rivera 2007, 
2012, and 2014, pers. obs.).
    Recruitment may be intermittent in some subpopulations. For 
example, a subpopulation with no seedling survival following a fruiting 
event in 2004 was noted to contain about 30 small saplings in the post-
Hurricane Mar[iacute]a assessment in 2018, suggesting the subpopulation 
is slowly recruiting (USFWS 2018, p. 25). Since 2009, hundreds of 
seedlings have been recorded in the Fort Buchanan subpopulation 
(Monsegur-Rivera 2009-2020, pers. obs.). In 2018, at least 12 saplings 
ranging from 0.3-1.0 m (0.9-3.3 ft) were observed. Saplings this size 
can withstand seasonal drought stress, and individuals are likely to 
persist in the long term if the habitat remains unaltered. Cross-
pollination between subpopulation maximizes the likelihood of fruit 
production and contributes to recruitment, which underscores the 
importance of conserving the species through a landscape approach.
    Of the 26 subpopulations currently showing evidence of natural 
recruitment, 9 of the 26 occur in areas that are managed for 
conservation. The 9 subpopulations constitute 36 percent of 
subpopulations showing natural recruitment and contain nearly 300 
individuals in total. There is no evidence of natural recruitment at 
this time for the remaining 40 subpopulations although the species' 
life history implies that recruitment may still occur in these 
subpopulations when a canopy opening is created and suitable conditions 
for recruitment are present. Forest cover in Puerto Rico has increased 
since the widespread deforestation in the 1930s-1950s (Marcano-Vega et 
al. 2015, p. 67), but the availability of suitable habitat prior to 
deforestation and habitat fragmentation implies the palo de rosa may 
have had greater abundance and wider distribution. Although current 
information on population structure indicates the species requires some 
open canopy areas to promote recruitment, widespread deforestation 
fragments habitat and creates edges (habitat transition zones). The 
possible long-term negative effects of habitat fragmentation and edge 
effect on subpopulations with recruitment adjacent to habitat 
disturbance are still unknown. Current observations from the 2018 post-
hurricane assessment suggest subpopulations encroached by development 
or agriculture were negatively affected by weedy vegetation invading 
the habitat following Hurricane Mar[iacute]a (e.g., Cayaponia americana 
(bejuco de torero), Dioscorea alata ([ntilde]ame), and Thunbergia 
grandiflora (pompeya). However, the extent of such impact remains 
uncertain, and further monitoring is needed. Such information 
highlights the effect of habitat fragmentation on the natural 
recruitment of the palo de rosa.

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Recovery Criteria

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Recovery plans must, to the 
maximum extent practicable, include objective, measurable criteria 
which, when met, would result in a determination, in accordance with 
the provisions of section 4 of the Act, that the species be removed 
from the list.
    Recovery plans provide a roadmap for us and our partners on methods 
of enhancing conservation and minimizing threats to listed species as 
well as measurable criteria against which to evaluate progress towards 
recovery and assess the species' likely future condition. However, 
recovery plans are not regulatory documents and do not substitute for 
the determinations and promulgation of regulations required under 
section 4(a)(1) of the Act. A decision to revise the status of a 
species or to delist a species is ultimately based on an analysis of 
the best scientific and commercial data available to determine whether 
a species is no longer an endangered species or a threatened species 
regardless of whether that information differs from the recovery plan.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all criteria being fully met. For 
example, one or more criteria may be exceeded while other criteria may 
not yet be accomplished. In that instance, we may determine that the 
threats are minimized sufficiently and that the species is robust 
enough that it no longer meets the definition of an endangered or 
threatened species. In other cases, we may discover new recovery 
opportunities after having finalized the recovery. Parties seeking to 
conserve the species may use these opportunities instead of methods 
identified in the recovery plan. Likewise, we may learn new information 
about the species after we finalize the recovery plan. The new 
information may change the extent to which existing criteria are 
appropriate for identifying recovery of the species. The recovery of a 
species is a dynamic process requiring adaptive management that may or 
may not fully follow all of the guidance provided in a recovery plan.
    The following discussion provides an analysis of the recovery 
criteria and goals as they relate to evaluating the status of the 
taxon. The recovery plan for this species does not provide downlisting 
criteria (USFWS 1994, entire) but indicates the species could be 
considered for delisting when the following criteria are met: (1) 
Populations known to occur on privately owned land are placed under 
protective status; (2) an agreement between the Service and the U.S. 
Army concerning the protection of the species on their land (Fort 
Buchanan) has been prepared and implemented; and (3) mechanisms for the 
protection of the palo de rosa have been incorporated into management 
plans for Maricao, Gu[aacute]nica, Sus[uacute]a, and Cambalache 
Commonwealth Forests. The plan also notes that, given the discovery of 
additional populations, priority should be given to enhancement and 
protection of existing populations in protected areas and on privately 
owned land (USFWS 1994, p. 13). At the time the recovery plan was 
written, only 200 individuals in 16 populations (currently defined as 
subpopulations) were known. In addition, the lack of recruitment in 
palo de rosa populations was not known to be a concern; therefore, 
recovery criteria primarily address protection of palo de rosa habitat. 
We apply our current understanding of the species' range, biology, and 
threats to these delisting criteria to support our rationale for why 
downlisting is appropriate. Details regarding the delisting criteria 
and the degree to which they have been met are described in the 
proposed reclassification rule and have not changed.
    Delisting criterion 1 has been partially met. At the time the 
recovery plan was written, 4 of 16 populations (now defined as 
subpopulations) occurred on private lands. Currently, of the 66 known 
palo de rosa subpopulations, 45 are located on private lands with 3 of 
these managed for conservation.
    Federal and Territorial conservation efforts have resulted in 
habitat protections that benefit the Yauco Landfill palo de rosa 
subpopulation and maintain connectivity between subpopulations (PRDNER 
2015b, p. 1). In addition, the PRDNER has increased the protected area 
in the GCF from the approximately 4,016 ha (9,923 ac) in 1996 to at 
least 4,400 ha (10,872 ac) (Monsegur 2009, p. 8). While delisting 
criterion 1 has been only partially met, with the identification of 
additional individuals, populations, and subpopulations, only 341 (29 
percent) of the known 1,144 palo de rosa individuals occur on private 
lands with no protection. Currently, 407 individuals (representing 36 
percent of known individuals or 32 percent of subpopulations) occur in 
areas managed for conservation.
    Together with our partners, we have met delisting criterion 2 
through an MOU specifying protection and management of the Fort 
Buchanan populations (U.S. Army, Fort Buchanan 2015, entire). Lastly, 
we determine delisting criterion 3 to be obsolete. Although species-
specific management plans do not exist for Commonwealth forests, the 
natural reserves are managed for conservation by PRDNER as recommended 
by the Master Plan for the Commonwealth Forests of Puerto Rico (DNR 
1976, entire). We continue working with PRDNER and other partners to 
monitor and survey suitable unexplored habitat for the palo de rosa, to 
develop sound conservation strategies, and to proactively identify 
priority areas for conservation.
    In conclusion, the implementation of recovery actions, in addition 
to the identification of numerous additional individuals and 
subpopulations, have reduced the risk of extinction for the palo de 
rosa. Of the 1,144 adult palo de rosa individuals known, only 341 (29 
percent) occur on private lands with no protection. Currently, 407 
individuals (representing 36 percent of known individuals or 32 percent 
of subpopulations) occur in areas managed for conservation. 
Furthermore, a total of 396 individuals (38 percent of subpopulations) 
occur in areas subject to little habitat modification due to the steep 
topography in the norther karst region of Puerto Rico Although many 
individuals occur on protected lands, we have identified 20 
subpopulations throughout Puerto Rico where habitat modification and 
fragmentation still can occur. Although Puerto Rico's laws and 
regulations protect the palo de rosa on both public and private lands 
and other protection mechanisms (i.e., conservation easements) have 
been implemented, impacts to palo de rosa subpopulations may occur due 
to lack of enforcement, misidentification of the species, unsustainable 
agricultural practices, and unregulated activities (see Summary of 
Biological Status and Threats, below). Based on the biology of the palo 
de rosa and its dependence on cross-pollination, impacts that reduce 
connectivity between subpopulations may affect the breeding capacity of 
the species and, thus, its long-term recruitment and viability. The 
recovery of the palo de rosa will include collaboration and partnership 
efforts with PRDNER and private landowners to develop conservation 
strategies and recommendations when evaluating urban and infrastructure 
development projects that could affect these

[[Page 66596]]

subpopulations. Recovery efforts should be directed toward landscape 
planning and management strategies that would ensure abundance and 
distribution of palo de rosa subpopulations to allow cross-pollination 
and recruitment and contribute to the long-term recovery of the 
species.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an ``endangered species'' or a ``threatened 
species,'' issuing protective regulations for threatened species, and 
designating critical habitat for threatened and endangered species. In 
2019, jointly with the National Marine Fisheries Service, the Service 
issued final rules that revised the regulations in 50 CFR parts 17 and 
424 regarding how we add, remove, and reclassify threatened and 
endangered species and the criteria for designating listed species' 
critical habitat (84 FR 45020 and 84 FR 44752; August 27, 2019). At the 
same time, the Service also issued final regulations that, for species 
listed as threatened species after September 26, 2019, eliminated the 
Service's general protective regulations automatically applying to 
threatened species the prohibitions that section 9 of the Act applies 
to endangered species (collectively, the 2019 regulations).
    However, on July 5, 2022, the U.S. District Court for the Northern 
District of California vacated the 2019 regulations (Center for 
Biological Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. 
Cal. July 5, 2022) (CBD v. Haaland)), reinstating the regulations that 
were in effect before the effective date of the 2019 regulations as the 
law governing species classification and critical-habitat decisions. 
Accordingly, in developing the analysis contained in this final rule, 
we applied the pre-2019 regulations, which may be reviewed in the 2018 
edition of the Code of Federal Regulations at 50 CFR 17.31, 17.71, 
424.02, 424.11(d)-(e), and 424.12(a)(1) and (b)(2)). Because of the 
ongoing litigation regarding the court's vacatur of the 2019 
regulations, and the resulting uncertainty surrounding the legal status 
of the regulations, we also undertook an analysis of whether the final 
rule would be different if we were to apply the 2019 regulations. That 
analysis, which we described in a separate memo in the decisional file 
and posted on https://www.regulations.gov, concluded that we would have 
reached the same decision if we had applied the 2019 regulations. This 
is because both before and after the 2019 regulations, the standard for 
whether a species the meets the definition of an endangered species or 
a threatened species remains the same under the 2019 regulations as 
under the pre-2019 regulations. Further, we concluded that our 
determination of the foreseeable future would be the same under the 
2019 regulations as under the pre-2019 regulations.
    On September 21, 2022, the U.S. Circuit Court of Appeals for the 
Ninth Circuit stayed the district court's July 5, 2022, order vacating 
the 2019 regulations until a pending motion for reconsideration before 
the district court is resolved (In re: Cattlemen's Ass'n, No. 22-
70194). The effect of the stay is that the 2019 regulations are the 
governing law. Because of our desire to promptly reclassify a species 
in a timely manner whenever species meets the definition of a 
threatened species, rather than revise the proposal in response to the 
Ninth Circuit's decision for submission of a final rule to the Federal 
Register, we hereby adopt the analysis in the separate memo that 
applied the 2019 regulations as our primary justification for the final 
rule. However, due to the continued uncertainty resulting from the 
ongoing litigation, we also retain the analysis in this preamble that 
applies the pre-2019 regulations and we conclude that, for the reasons 
stated in our separate memo analyzing the 2019 regulations, this final 
rule would have been the same if we had applied the 2019 regulations.
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range. A ``threatened species'' is defined as a species that is likely 
to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range. The Act requires 
that we determine whether a species is an ``endangered species'' or a 
``threatened species'' based on one or any combination of the following 
factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species as 
well as other actions or conditions that may ameliorate any negative 
effects or have positive effects. We consider these same five factors 
in downlisting a species from endangered to threatened.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct impacts) 
as well as those that affect individuals through alteration of their 
habitat or required resources (stressors). The term ``threat'' may 
encompass--either together or separately--the source of the action or 
condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species then analyze the cumulative effect of all of the 
threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species--such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Because 
the decision in CBD v. Haaland vacated our 2019 regulations regarding 
the foreseeable future, we refer to a 2009 Department of the Interior 
Solicitor's opinion entitled ``The Meaning of `Foreseeable Future' in 
Section 3(20) of the Endangered Species Act'' (M-37021). That 
Solicitor's opinion states that the foreseeable future ``must be rooted 
in the best available data that allow predictions into the future'' and 
extends as far as those predictions are ``sufficiently reliable to

[[Page 66597]]

provide a reasonable degree of confidence in the prediction, in light 
of the conservation purposes of the Act.'' Id. at 13.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
    We consider 50 years to be the foreseeable future within which we 
can reasonably determine the threats, the magnitude of those threats, 
and the species' response to those threats. The foreseeable future for 
the individual factors and threats vary. However, based on the 
available information from ongoing monitoring of populations known at 
the time of listing, it is estimated that under natural conditions palo 
de rosa individuals may require at least 40 years to reach a 
reproductive size and that the species' reproductive ecology is 
consistent with late-successional species. Within 50 years, an 
individual palo de rosa tree would reach a reproductive size and 
effectively contribute to the next generation. Therefore, this 
timeframe accounts for maturation, the probability of flowering, 
effective cross-pollination, setting viable fruits, seed germination, 
and early seedling survival and establishment while taking into account 
environmental stochastic events such as drought periods. Some palo de 
rosa life stages are more sensitive to a particular threat (e.g., 
seedling and sapling susceptibility to drought conditions); therefore, 
the species' response to threats in all life stages and the effects of 
these responses can be reasonably determined within the foreseeable 
future (50 years).
    We can also reasonably predict development and habitat 
fragmentation and modification within the next 50 years based on 
current trends. Furthermore, the established timeframe for the 
foreseeable future provides for the design and implementation of 
conservation strategies to protect and enhance currently known 
populations over the next 50 years.
    In terms of climate, we recognize that modelled projections for 
Puerto Rico are characterized by some divergence and uncertainty later 
in the century (Khalyani et al. 2016, p. 275). However, we have 
reasonable confidence in projections within a 50-year timeframe 
representing the foreseeable future for the palo de rosa because 
uncertainty is reduced within this timeframe. We assessed the climate 
changes expected in the year 2070 and determined that downscaled future 
climate change scenarios indicate that Puerto Rico is predicted to 
experience changes in climate that will affect the palo de rosa 
(Khalyani et al. 2016, entire). Thus, using a 50-year timeframe for the 
foreseeable future allows us to account for the effects of projected 
changes in temperature, shifting of life zones, and increases in 
droughts in the habitat.

Analytical Framework

    The 5-year review (USFWS 2017, entire) documents the results of our 
comprehensive biological status review for the species, including an 
assessment of the potential threats to the species. The following is a 
summary of the key results and conclusions from the 5-year review and 
the best available information gathered since that time. The 5-year 
review can be found at https://www.regulations.gov under Docket No. 
FWS-R4-ES-2020-0059.

Summary of Biological Status and Threats

    Below, we review the biological condition of the species and its 
resources and the threats that influence the species' current and 
future condition to assess the species' overall viability and the risks 
to that viability.

Habitat Destruction and Modification

    Habitat destruction and modification, including forest management 
practices, were identified as factors affecting the continued existence 
of the palo de rosa when it was listed in 1990 (55 FR 13488, April 10, 
1990). At present, forest management practices within Commonwealth 
forests are not considered a threat to the palo de rosa because of 
existing regulatory mechanisms and lack of evidence of direct impacts 
to the species due to forest management practices. For example, 
although there is evidence of palo de rosa individuals with multiple 
stems due to historical deforestation and harvesting for charcoal 
production in the GCF, selective harvesting and deforestation is no 
longer a threat to the GCF population. Similar to the GCF, the palo de 
rosa SCF population (i.e., Quebrada Peces, Quebrada Grande, and 
R[iacute]o Loco subpopulations) is also entirely under conservation, 
and we have no evidence of adverse impacts to the species due to forest 
management practices.
    However, that is not necessarily the case on private lands; the 
subpopulations of Montes de Barinas and Guayanilla-CORCO (Commonwealth 
Oil Refining Company) remain vulnerable to deforestation and habitat 
modification. In Montes de Barinas, the palo de rosa occurs on private 
properties subject to urban development resulting in encroachment of 
native dry forest areas and, thus, in the isolation of the palo de rosa 
(see 79 FR 53303, September 9, 2014, p. 53307, with reference to 
threats in the same area). These areas also are threatened by 
deforestation for cattle grazing and the extraction of timber for fence 
posts (Rom[aacute]n-Guzman 2006, p. 40; see 79 FR 53303, September 9, 
2014, p. 53307). In fact, active extraction of timber for fence posts 
has been reported adjacent to the Montes de Barinas subpopulation and 
on a neighboring property with other endemic species with palo de rosa 
individuals in the Montes de Barinas population likely to be cut if 
harvesting continues (Monsegur-Rivera 2003-2006, pers. obs.; Morales 
2011, pers. comm.). In addition, the area of Montes de Barinas showed 
evidence of bulldozing and subdivision for urban development 
(Rom[aacute]n-Guzman 2006, p. 40).
    The habitat at the Guayanilla-CORCO population is impacted on a 
regular basis by the Puerto Rico Energy and Power Authority (PREPA) for 
the maintenance of power lines and associated rights-of-way (USFWS 
2017, p. 16). Impacts to the species' habitat have been reported in 
that area as a result of construction of access roads to PREPA towers 
(Monsegur-Rivera 2014-2020, pers. obs.). Such habitat disturbance and 
modification affect the integrity of palo de rosa habitat and likely 
result in direct and indirect impacts to individuals. In fact, some 
access roads go through drainages that provide good habitat for the 
palo de rosa and could affect microhabitat conditions necessary for 
seedling germination and recruitment. In addition, these dirt access 
roads provide corridors for the establishment of exotic plant species 
like guinea grass (Megathyrsus maximus) and zarcilla (Leucaena 
leucocephala), which outcompete the native vegetation (including the 
palo de rosa) and promote favorable conditions for human-induced fires 
(USFWS 2017, p. 16). Moreover, these dirt roads are used to access the 
forested habitat for harvesting of timber for fence posts (Monsegur-
Rivera 2014, pers. obs.). Similarly, the habitat in the municipalities 
of Pe[ntilde]uelas and Ponce (i.e., Punta Cucharas) near the

[[Page 66598]]

Guayanilla-Pe[ntilde]uelas population has been severely fragmented by 
urban development (e.g., housing development, hotels, a jail, a 
landfill, rock quarries, and highway PR-2) (see 79 FR 53307, September 
9, 2014), and due to maintenance of PREPA power lines (Monsegur-Rivera 
2020, pers. obs.).
    In Sierra Bermeja and Cerro las Mesas, private forested lands also 
have been impacted through deforestation mainly for agricultural 
practices (i.e., grazing by cattle and goats, and associated conversion 
of forested habitat to grasslands) and urban development (i.e., 
construction of houses and roads) (Cede[ntilde]o-Maldonado and Breckon 
1996, p. 349; USFWS 1998, p. 6; Envirosurvey, Inc. 2016, p. 6). Most of 
the Sierra Bermeja mountain range was zoned with specific restrictions 
on development activities to protect the natural resources of the area 
(Junta de Planificaci[oacute]n Puerto Rico (JPPR) 2009, pp. 151-153). 
This zoning allows for agricultural activities and construction of 
residential homes with the implementation of best management practices 
and some limitations (JPPR 2009, p. 151; JPPR 2015, pp. 118-129). 
Nonetheless, landowners continue impacting the habitat through 
activities like cutting new access roads on their properties and 
conversion of forested land to pasture (Pacheco and Monsegur-Rivera 
2017, pers. obs.). The palo de rosa population in Sierra Bermeja is 
limited to two isolated individuals on protected lands (Laguna 
Cartegena National Wildlife Refuge (LCNWR) and PLN conservation 
easement) with no evidence of natural recruitment. Similarly, the other 
two palo de rosa individuals in Guaniquilla-Buye, also in southwest 
Puerto Rico, are found within private lands subject to urban and 
tourist development although these plants are not yet impacted.
    Core palo de rosa subpopulations occur in the northern karst belt 
of Puerto Rico (Lugo et al. 2001, p. 1) where approximately 80 percent 
of the known palo de rosa sites occur on private lands not managed for 
conservation. These private lands are encroached upon by development 
and subject to habitat modification activities (e.g., urban 
development) detrimental to the palo de rosa. The palo de rosa 
subpopulation at Guajataca Commonwealth Forest (GuCF) is the 
westernmost record of the species in northern Puerto Rico that lies 
within an area managed for conservation. As previously discussed, the 
GuCF subpopulations extend to private lands along the Guajataca Gorge. 
Although the steep terrain and low agricultural value of this area has 
protected the subpopulations from habitat modification, some remain 
vulnerable to infrastructure development (e.g., possible expansion of 
Highway PR-22 between the municipalities of Hatillo and Aguadilla). For 
example, three previously unknown subpopulations (including one showing 
recruitment) were located during the biological assessments for the 
proposed expansion of Highway PR-22 (PRHTA 2007, p. 19).
    Another subpopulation vulnerable to habitat modification is the 
Merendero-Guajataca; this area is managed for recreation, and the 
habitat remains threatened by vegetation management activities (e.g., 
maintenance of green areas and vegetation clearing along trails). 
Habitat modification can also have implications beyond the direct 
impacts to a subpopulation. Although the palo de rosa in the Merendero-
Guajataca subpopulation have produced flowers, there are no records of 
fruit production or seedlings (Monsegur-Rivera 2009-2020, pers. obs.); 
this is likely due to habitat modification at the site. Nonetheless, 
this subpopulation may interact through cross-pollination with the 
nearby El T[uacute]nel-Guajataca subpopulation and, thus, contribute to 
observed recruitment in other Guajataca Gorge subpopulations. A palo de 
rosa subpopulation was located during a biological assessment for the 
proposed expansion of an existing quarry adjacent to the R[iacute]o 
Camuy (Sustache-Sustache 2010, p. 7). We expect that impacts to this 
subpopulation from the quarry activities will interfere with the 
natural recruitment of the species along the R[iacute]o Camuy.
    Habitat encroachment is evident on private lands surrounding the 
Cambalache Commonwealth Forest (CCF), Hacienda La Esperanza Natural 
Reserve, and Tortuguero Lagoon Natural Preserve where at least six 
known subpopulations occur within private lands adjacent to areas 
subject to development or infrastructure projects. The subpopulations 
at Hacienda Esperanza extend to private lands on their southern 
boundary where development projects have been proposed (e.g., Ciudad 
M[eacute]dica del Caribe; PRDNER 2013, pp. 24-25). Habitat modification 
in those areas can result in direct impacts to palo de rosa individuals 
and interrupt the connectivity between subpopulations (e.g., cross-
pollination). In addition, the analysis of aerial images indicates four 
additional subpopulations occurring on private lands in the proximity 
of Hacienda Esperanza are encroached upon by urban development, rock 
quarries, and agricultural areas (Monsegur-Rivera 2018, pers. obs.).
    The palo de rosa subpopulations at Hacienda Sabanera in Dorado have 
been encroached upon by development. We prepared a biological opinion 
during the consultation process for the construction of Hacienda 
Sabanera and its associated impacts on the palo de rosa (USFWS 1999, 
entire). The biological opinion indicates that approximately 83 of the 
200 acres (including forested mogote habitat) would be impacted, and 6 
palo de rosa adults, 12 saplings, and 35 seedlings would be directly 
affected by the proposed project (USFWS 1999, p. 6). Although we 
concluded that the project would not jeopardize the continued existence 
of the palo de rosa (USFWS 1999, p. 7), the project resulted in 
substantial loss of forested habitat promoting edge habitat favorable 
for intrusion by weedy species. In addition, a series of mogotes along 
Higuillar Avenue, south of Hacienda Sabanera, are expected to be 
impacted by proposed road construction (PRDNER 2013, pp. 22-24), and we 
have no information that plans for the road have been withdrawn.
    Encroachment conditions similar to those in Hacienda Sabanera also 
occur in the areas of La Virgencita (north and south), Mogotes de 
Nevares, Sabana Seca, Parque de las Ciencias, Parque Monagas, and Fort 
Buchanan. For example, at La Virgencita, the palo de rosa population is 
bisected by Highway PR-2 and could be further impacted if the road is 
widened in the future. Landslides have occurred in this area in the 
past, and road maintenance in this vulnerable area may trigger slide 
events (PRDNER 2015a, pp. 13-15). In addition, palo de rosa individuals 
are found within the PREPA power line rights-of-way (Power Line 41500), 
and there is evidence the overall decrease or absence of saplings or 
juveniles in the La Virgencita south population may be the result of 
habitat modification and resulting edge habitat due to maintenance of 
the PREPA power line rights-of-way (PRDNER 2015a, pp. 13-15; USFWS 
2018, p. 33). In addition, the westernmost palo de rosa subpopulation 
occurs in the municipality of Aguadilla in an area identified by the 
Puerto Rico Highway and Transportation Authority (PRHTA) as part of the 
proposed expansion of highway PR-22 (USFWS 2017, p. 7).
    The Mogotes de Nevares, Sabana Seca, Parque de las Ciencias, Parque 
Monagas, and Fort Buchanan subpopulations are also severely fragmented 
by urban development and a rock quarry (USFWS 2017, p. 12). Such 
fragmentation compromises the connectivity between subpopulations.

[[Page 66599]]

Some of these areas are vulnerable to landslides due to changes in the 
contour of the terrain associated with a high density of urban 
development, encroachment, and quarry operations (e.g., Parque Monagas 
and Fort Buchanan) (U.S. Army 2014, p. 3). Although Fort Buchanan 
habitat is set aside for conservation, landslides have occurred within 
and near the fort, and the subpopulation remains threatened due to 
potential landslides. Fort Buchanan is evaluating a possible slope 
stabilization project for the site (U.S. Army 2014, pp. 4, 9-11).
    The palo de rosa occurs within several National Parks on Hispaniola 
(Dominican Republic and Haiti) (e.g., Parque Nacional del Este, Parque 
Nacional Los Haitises, and Parque Nacional Sierra de Bahoruco). Despite 
the occurrence of the species within areas managed for conservation 
(e.g., Parque del Este and Sierra de Bahoruco), these areas continue to 
be affected by illegal deforestation for agriculture and charcoal 
production, and enforcement of existing regulations is limited 
(Jim[eacute]nez 2019, pers. comm.). The dependence of the human 
population of Haiti on wood-based cooking fuels (e.g., charcoal and 
firewood) has resulted in substantial deforestation and forest 
conversion to marginal habitat in both Haiti and adjacent regions of 
the Dominican Republic (e.g., Sierra de Bahoruco). The expected 
increases in the human population in Haiti will result in an increase 
in the demand for such fuel resources (USFWS 2018, p. 4).
    In fact, deforestation and habitat degradation in the Sierra de 
Bahoruco and the surrounding region has recently been increasing (Grupo 
Jaragua 2011, entire; Goetz et al. 2011, p. 5; Simons et al. 2013, p. 
31). In 2013, an estimated 80 square kilometers (19,768.4 acres) of 
forest in the area were lost primarily due to illegal clearing of 
forested habitat for agricultural activities (Gallagher 2015, entire). 
Vast areas (including suitable habitat for the palo de rosa) along the 
border between Haiti and Dominican Republic (including within National 
Parks) are being cleared and converted to avocado plantations 
(Monsegur-Rivera 2017, pers. obs.). Such deforestation extends to other 
National Parks, such as Parque Nacional del Este and Isla Saona, where 
illegal vegetation clearing for agriculture and tourism development 
continue to occur (Monsegur-Rivera 2011, pers. obs.). For example, 
analysis of aerial images from Isla Saona (Parque Nacional del Este) 
show extensive deforestation and conversion of forested habitat to 
agricultural lands during the last decade (Monsegur-Rivera 2019, pers. 
obs.). Impacts to palo de rosa populations due to development and 
habitat destruction and modification in Hispaniola are not described in 
the final listing rule for the species (55 FR 13488, April 10, 1990), 
but current information indicates that the palo de rosa and its habitat 
are being affected by deforestation for agricultural practices and 
extraction for fuel resources.
    To summarize, forest management practices within Commonwealth 
Forests are no longer considered a threat to the palo de rosa. The palo 
de rosa populations at the CCF, GCF, GuCF, R[iacute]o Abajo 
Commonwealth Forest (RACF), and SCF are protected as these forest 
reserves are protected by Commonwealth laws and managed for 
conservation. Nonetheless, populations extending onto private lands in 
southern Puerto Rico are vulnerable to impacts from urban development, 
agricultural practices (e.g., harvesting fence posts), and maintenance 
of power lines and rights-of-way (Monsegur-Rivera 2019, pers. obs.). In 
addition, the majority of the subpopulations along the northern karst 
of Puerto Rico occur on private lands where habitat encroachment occurs 
and creates edge habitat conditions (habitat intrusion by exotics that 
precludes seedling establishment) and affects connectivity and natural 
recruitment. For example, despite the abundance of individuals at the 
palo de rosa subpopulation adjacent to the former CORCO in Guayanilla-
Pe[ntilde]uelas, recruitment is limited due to the multiple stressors, 
including maintenance of power line rights-of-way, fence post harvest, 
and intrusion of exotic plant species, as well as the changes in 
microhabitat conditions at these sites, which preclude seedling 
establishment. Furthermore, habitat fragmentation along the northern 
coast may affect cross-pollination among subpopulations resulting in 
the lack of fruit production at isolated subpopulations with a smaller 
number of individuals (e.g., Merendero-Guajataca).

Conservation Efforts and Regulatory Mechanisms

    In the final listing rule (55 FR 13488, April 10, 1990), we 
identified the inadequacy of existing regulatory mechanisms as one of 
the factors affecting the continued existence of the palo de rosa. At 
that time, the species had no legal protection because it had not been 
included in Puerto Rico's list of protected species. Once the palo de 
rosa was federally listed, legal protection was extended by virtue of 
an existing cooperative agreement (under section 6 of the Act) with the 
Commonwealth of Puerto Rico. Federal listing ensured the addition of 
the palo de rosa to the Commonwealth's list of protected species, and 
the Commonwealth designated the palo de rosa as endangered in 2004 
(PRDNER 2004, p. 52).
    In 1999, the Commonwealth of Puerto Rico approved Law No. 241, also 
known as the New Wildlife Law of Puerto Rico (Nueva Ley de Vida 
Silvestre de Puerto Rico), which legally protects the palo de rosa. The 
purpose of this law is to protect, conserve, and enhance both native 
and migratory wildlife species and declare as property of Puerto Rico 
all wildlife species within its jurisdiction. The law also regulates 
permits, hunting activities, and exotic species among other activities. 
This law also has provisions to protect habitat for all wildlife 
species, including plants. In 2004, the PRDNER approved Regulation 6766 
or Regulation to Govern Vulnerable Species and Species in Danger of 
Extinction in the Commonwealth of Puerto Rico (Reglamento para Regir el 
Manejo de las Especies Vulnerables y en Peligro de Extinci[oacute]n en 
el Estado Libre Asociado de Puerto Rico). Article 2.06 of Regulation 
6766 prohibits, among other activities, collecting, cutting, and 
removing of listed plant individuals within the jurisdiction of Puerto 
Rico (PRDNER 2004, p. 11). The provisions of Law No. 241-1999 and 
Regulation 6766 extend to private lands. However, the protection of 
listed species on private lands is challenging as landowners may be 
unaware that species are protected and may damage those species (e.g., 
by cutting, pruning, or mowing) (USFWS 2017, p. 23), which might be the 
case were a palo de rosa tree cut for fence posts.
    Commonwealth of Puerto Rico Law No. 133 (1975, as amended in 2000), 
also known as Puerto Rico Forests' Law (Ley de Bosques de Puerto Rico), 
protects the areas of the GCF, SCF, GuCF, RACF, and CCF, and, by 
extension, the palo de rosa individuals on them. Section 8(a) of this 
law prohibits cutting, killing, destroying, uprooting, extracting, or 
in any way hurting any tree or vegetation within a Commonwealth forest. 
The PRDNER also identifies these forests as ``critical wildlife 
areas.'' This designation constitutes a special recognition with the 
purpose of providing information to Commonwealth and Federal agencies 
about the conservation needs of these areas and to assist permitting 
agencies in precluding adverse impacts as a result of project 
endorsements or permit approvals (PRDNER 2005, pp. 211-216).

[[Page 66600]]

In addition, Commonwealth of Puerto Rico Law No. 292 (1999), also known 
as Puerto Rico Karst Physiographic Protection and Conservation Law (Ley 
para la Protecci[oacute]n y Conservaci[oacute]n de la 
Fisiograf[iacute]a C[aacute]rsica de Puerto Rico), regulates the 
extraction of rock and gravel for commercial purposes and prohibits the 
cutting of native and endemic vegetation in violation of other laws 
(e.g., Law No. 241-1999 and Regulation 6766). Law No. 292-1999 applies 
to karst habitat in both southern and northern Puerto Rico.
    On the Laguna Cartegena National Wildlife Refuge (LCNWR), habitat 
is managed in accordance with the National Wildlife Refuge System 
Administration Act of 1966 (16 U.S.C. 668dd-668ee, as amended by the 
National Wildlife Refuge System Improvement Act of 1997 [Improvement 
Act]), and collection of plants within refuge lands is prohibited by 50 
CFR 27.51. The LCNWR has a comprehensive conservation plan that 
includes measures for the protection and recovery of endangered and 
threatened plant species (USFWS 2011, p. 35). Furthermore, the Puerto 
Rico Planning Board (Junta de Planificaci[oacute]n de Puerto Rico) 
classified most of the mountain range of Sierra Bermeja as a District 
of Conservation of Resources (Distrito de Conservaci[oacute]n de 
Suelos) (JPPR 2009, p. 151). This conservation category identifies 
lands with particular characteristics that need to be maintained or 
enhanced (e.g., provide habitat for species of concern) and establishes 
specific restrictions for development (JPPR 2009, p. 151). Also, in 
2015, the Puerto Rico Planning Board approved the Land Use Plan for 
Puerto Rico and categorized most of the Sierra Bermeja Mountains, 
including the LCNWR, as Rustic Soil Specially Protected (Suelo Rustico 
Especialmente Protegido) where no urban development is considered due 
to location, topography, aesthetic value, archaeological value, or 
ecological value of land (Puerto Rico Planning Board Interactive Map 
2020).
    The palo de rosa individuals found at Hacienda La Esperanza Natural 
Reserve are protected as this reserve also is managed for conservation 
by PLN, and the management plan considers the palo de rosa in its 
activities (PLN 2011a, p. 67). The PLN also manages the R[iacute]o 
Encantado Natural Protected Area, a mosaic of at least 1,818 ac (736 
ha) of forested habitat (including extensive areas of suitable habitat 
for the palo de rosa) in the municipalities of Florida, Manat[iacute], 
and Ciales, and PLN plans to continue acquiring habitat at this 
geographical area (PLN 2011b, p. 5). Also, the palo de rosa is 
protected and managed under an MOU among the U.S. Army Garrison, Fort 
Buchanan, the Service, and PRDNER (U.S. Army, Fort Buchanan 2015, 
entire). This palo de rosa subpopulation is found in a mogote 
designated for conservation (USACE 2014, p. 3).
    In addition, the private natural reserves of El Tallonal and Mata 
de Pl[aacute]tano, which contain subpopulations of the palo de rosa in 
the municipality of Arecibo, are protected from habitat modification 
and have approved private forest stewardship management plans that 
include measures for the protection of listed species within the 
properties (PRDNER 2005, 47 pp.). We have an extended history of 
collaboration with these two reserves in providing financial and 
technical assistance for the implementation of recovery actions to 
benefit listed species.
    In addition to protections provided by the Act, the species is 
protected from collection and provided management considerations by the 
Improvement Act within one national wildlife refuge (LCNWR). In 
addition, the Commonwealth of Puerto Rico legally protects the palo de 
rosa, including protections to its habitat, through Commonwealth Law 
No. 241-1999 and Regulation 6766, which prohibit, among other actions, 
collecting, cutting, and removing listed plants. While we are 
downlisting this species, we do not expect this species to be removed 
from legal protection by the Commonwealth. Although these protections 
extend to both public and private lands, as discussed above, protection 
of this species on private land is challenging. Habitat that occurs on 
private land is subject to pressures from agricultural practices (e.g., 
grazing, harvesting fence posts) and development. Accidental damage or 
extirpation of individuals has occurred because private landowners or 
other parties on the property may not be able to identify the species 
or may not be aware that the palo de rosa is a protected species. 
Habitat modifications and fragmentation continue to occur on private 
lands, which can increase the likelihood of habitat intrusion by exotic 
plants and human-induced fires and reduce connectivity between 
populations and the availability of suitable habitat for the species' 
recruitment. In short, this plant is now more abundant and widely 
distributed, including within conservation land, so the threat due to 
inadequacy of regulatory mechanisms has been reduced. However, the palo 
de rosa occurrences on private lands continue to need enforcement of 
existing prohibitions as well as increased attention and associated 
outreach to highlight the species' conservation and importance.

Recruitment

    Here, we summarize the continuing threat of low recruitment on palo 
de rosa populations. We describe this influence on palo de rosa 
viability in greater detail under Recruitment and Population Structure, 
above. Characteristics of the palo de rosa's life history may 
contribute to the slow or lack of recruitment observed in current 
subpopulations (Monsegur-Rivera 2018, pers. obs.). Individual palo de 
rosa trees grow extremely slowly and may require at least 40 years to 
reach a reproductive size. Dispersal and colonization of gravity-
dispersed palo de rosa seeds are limited, and seedlings face 
competition from the parental tree. As a late-successional species, 
palo de rosa requires an open canopy to promote seedling growth and is 
adapted to stable habitat conditions with a regime of natural 
disturbances such as hurricanes (Breckon and Kolterman 1996). Cross-
pollination between or among subpopulations maximizes the likelihood of 
fruit production and contributes to recruitment, which underscores the 
importance of conserving the species through a landscape approach to 
promote effective crosspollination and natural recruitment. Although 
current information on population structure indicates the species 
requires some open canopy areas to promote recruitment, widespread 
deforestation fragments the remnants of suitable habitat and creates 
edges (habitat transition zones).
    There is no evidence of natural recruitment at this time for 40 of 
the 66 known subpopulations, although the species' life history implies 
that recruitment may still occur in these populations when a canopy 
opening is created and suitable conditions for recruitment are present. 
Forest cover in Puerto Rico has increased since the widespread 
deforestation in the 1930s (Marcano-Vega et al. 2015, p. 67), but palo 
de rosa was likely more widespread prior to deforestation and habitat 
fragmentation. A life history requirement for a closed canopy forest 
for adult individuals with canopy openings to promote seedling and 
sapling recruitment was likely more sustainable in populations with 
greater abundance and distribution than the species currently exhibits. 
Smaller and more isolated subpopulations are less able to provide 
closed canopy conditions with small pockets of openings; thus, inherent 
palo de rosa

[[Page 66601]]

life history characteristics have an effect on recruitment, and this 
effect is expected to continue in the future.

Hurricanes and Related Threats

    At the time of listing, we considered palo de rosa individuals 
vulnerable to flash flood events (see 55 FR 13490, April 10, 1990). 
Flash floods remain a moderate threat and may compromise the natural 
recruitment of seedlings, particularly on subpopulations along the 
southern coast of Puerto Rico where the species occurs at the bottom of 
drainages (USFWS 2017, p. 17). Below, we describe these threats and 
other natural and human-caused factors affecting the continued 
existence of the palo de rosa.
    As an endemic species to the Caribbean, the palo de rosa is 
expected to be well adapted to tropical storms and associated 
disturbances such as flash floods. Under natural conditions, healthy 
populations with robust numbers of individuals and recruitment should 
withstand tropical storms, and these weather and climatic events may be 
beneficial for the population dynamics of the palo de rosa by creating 
small openings in the closed canopy to allow seedling and sapling 
growth. The islands of the Caribbean are frequently affected by 
hurricanes. Puerto Rico has been directly affected by four major 
hurricanes since 1989. Successional responses to hurricanes can 
influence the structure and composition of plant communities in the 
Caribbean islands (Lugo 2000, p. 245; Van Bloem et al. 2003, p. 137; 
Van Bloem et al. 2005, p. 572; Van Bloem et al. 2006, p. 517). Examples 
of the visible effects of hurricanes on the ecosystem includes massive 
defoliation, snapped and wind-thrown trees, large debris accumulations, 
landslides, debris flows, and altered stream channels, among others 
(Lugo 2008, p. 368). Hurricanes can produce sudden and massive tree 
mortality, which varies among species but averages about 41.5 percent 
(Lugo 2000, p. 245). Hence, small palo de rosa populations may be 
severely impacted by hurricanes resulting in loss of individuals or 
extirpation. The impact of catastrophic hurricanes is exacerbated in 
small populations.
    There is evidence of damage to palo de rosa individuals due to 
previous hurricane events (e.g., Hurricane Georges in 1998) at the 
Hacienda Sabanera and Hacienda Esperanza subpopulations (USFWS 2017, p. 
17). A post-hurricane assessment of selected palo de rosa populations 
was conducted to address the impact of Hurricane Mar[iacute]a (USFWS 
2018, entire). Even though Hurricane Mar[iacute]a did not directly hit 
the GCF, evidence of damage to palo de rosa trees was recorded at 
Ca[ntilde]on Las Trichilias (e.g., uprooted trees and main trunk 
broken) (USFWS 2018, p. 3). Additional evidence of direct impacts 
(including mortality) due to Hurricane Mar[iacute]a were recorded in 
the Hacienda Esperanza, Hacienda Sabanera, Parque Monagas, and La 
Virgencita subpopulations (USFWS 2018, entire). An analysis of high-
resolution aerial images from these sites following Hurricane 
Mar[iacute]a shows extensive damage and modification to the forest 
structure with subpopulations in southern Puerto Rico exposed to less 
wind damage (Hu and Smith 2018, pp. 1, 17). When comparing affected 
subpopulation abundance, the evidence of direct impacts to palo de rosa 
individuals due to Hurricane Mar[iacute]a appear to be discountable. 
However, this post-hurricane assessment focused on previously surveyed 
robust subpopulations (USFWS 2018, entire). Overall, the subpopulations 
along the northern coast of Puerto Rico suffered severe defoliation 
with trees showing mortality of the crown apex, but some trees showed 
regrowth 6 months post-hurricane (USFWS 2018, entire).
    Hurricane damage extends beyond the direct impacts to individual 
palo de rosa trees. As mentioned above, the subpopulations along the 
northern coast of Puerto Rico are severely fragmented due to prior 
land-use history. Disturbance and edge effects associated with urban 
development and infrastructure corridors may promote the establishment 
and spread of invasive, nonnative plant species, and lianas (woody 
vines) typical of early or intermediate successional stages, which may 
result in rare and endemic plant species being outcompeted (Hansen and 
Clevenger 2005, p. 249; Madeira et al. 2009, p. 291). Hurricanes may 
not introduce nonnative species to the forest structure, but they can 
promote favorable conditions for these species and, therefore, increase 
the relative abundance of nonnatives.
    Habitat intrusion by exotics is positively correlated to the 
distance of the disturbance gap (Hansen and Clevenger 2005, p. 249). 
Thus, the adverse effects from human-induced habitat disturbance (e.g., 
deforestation and urban development) can be exacerbated by hurricanes 
by creating or increasing this disturbance gap. A post-hurricane 
assessment provided evidence that all palo de rosa subpopulations along 
the north coast of Puerto Rico showed habitat intrusion by weedy vines 
(e.g., Dioscorea alata ([ntilde]ame), Thunbergia grandiflora (pompeya), 
Cissus erosa (caro de tres hojas), and Cayaponia americana (bejuco de 
torero)) following Hurricane Mar[iacute]a (USFWS 2018, entire).
    In the same assessment, weedy vegetation and vines densely covered 
an area in the Hacienda Esperanza subpopulation where the palo de rosa 
occurs at a low-elevation mogote and the Hacienda Sabanera where the 
habitat that harbors the palo de rosa subpopulation was cut to the edge 
due to urban development (USFWS 2018, pp. 8-18). Examination of aerial 
images of the habitat shows a flattened forest structure indicative of 
hurricane damage with standing trees missing main branches and canopy. 
Competition with nonnative species and weedy vines for necessary 
resources (space, light, water, nutrients) may reduce natural 
recruitment by inhibiting germination and outcompeting seedlings of 
native species (Rojas-Sandoval and Mel[eacute]ndez-Ackerman 2013, p. 
11; Thomson 2005, p. 615). The palo de rosa seedlings at Hacienda 
Esperanza were covered (and outcompeted) by weedy vines following 
Hurricane Mar[iacute]a (USFWS 2018, p. 8). At Fort Buchanan, 6 months 
after Hurricane Mar[iacute]a, the vegetation at the base of the mogote 
on that property was overgrown and dominated by weedy species. However, 
weedy vegetation had not reached palo de rosa individuals at the top of 
the mogote, and there was little evidence of adverse impacts to 
seedlings and saplings due to competition with exotics (USFWS 2018, p. 
8).
    The GCF palo de rosa subpopulations are surrounded by a large tract 
of intact native forest providing a buffer zone that precludes habitat 
invasion by exotics. Despite the overall evidence of canopy opening and 
some impacts to palo de rosa individuals due to Hurricane Mar[iacute]a, 
there was no evidence of habitat intrusion by exotics at Ca[ntilde]on 
Las Trichilias and Ca[ntilde]on Hoya Honda (USFWS 2018 pp. 3-8), which 
highlights the importance of maintaining native forested habitat that 
provides a buffer for palo de rosa subpopulations.
    The above discussion indicates that the potential adverse impacts 
due to hurricanes and the associated habitat intrusion by exotic plant 
species are variable depending on habitat fragmentation, topography, 
distance to disturbance, and the size of the subpopulation. It further 
highlights the importance of having healthy populations with robust 
numbers of individuals and a stratified population structure (i.e., 
seedlings, saplings, and adults) to allow for recovery following 
hurricanes and associated habitat disturbance.

[[Page 66602]]

Climate Change

    Regarding the effects of climate change, the Intergovernmental 
Panel on Climate Change (IPCC) concluded that warming of the climate 
system is unequivocal (IPCC 2014, p. 3). Observed effects associated 
with climate change include widespread changes in precipitation amounts 
and aspects of extreme weather, including droughts, heavy 
precipitation, heat waves, and the intensity of tropical cyclones (IPCC 
2014, p. 4). Rather than assessing climate change as a single threat in 
and of itself, we examined the potential effects to the species and its 
habitat that arise from changes in environmental conditions associated 
with various aspects of climate change.
    We examined a downscaled model for Puerto Rico based on three IPCC 
global emissions scenarios from the CMIP3 data set--mid-high (A2), mid-
low (A1B), and low (B1)--as the CMIP5 data set was not available for 
Puerto Rico at that time (Coupled Model Intercomparison Project; 
Khalyani et al. 2016, pp. 267, 279-280). These scenarios are generally 
comparable and span the more recent representative concentration 
pathways (RCP) scenarios from RCP 4.5 (B1) to RCP 8.5 (A2) (IPCC 2014, 
p. 57). The B1 and A2 scenarios encompass the projections and effects 
of the A1B scenario; we will describe our analyses for the B1 (RCP 4.5) 
and A2 (RCP 8.5) scenarios and recognize the A1B (RCP 6.0) projections 
and effects that fall into this range.
    The modelling of climate projections expected in Puerto Rico in our 
analysis extends to 2100. We acknowledge inherent divergence in climate 
projections based on the model chosen with uncertainty increasing later 
in the century (Khalyani et al. 2016, p. 275). However, we assessed the 
climate changes expected in the year 2070, a 50-year timeframe 
representing the foreseeable future for the palo de rosa (as described 
in Regulatory Framework, above). Under the RCP 4.5 and 8.5 scenarios, 
precipitation declines while temperature and total dry days increase 
resulting in extreme drought conditions that would result in the 
conversion of subtropical dry forest into dry and very dry forest 
(Khalyani et al. 2016, p. 280). Downscaled future climate change 
scenarios indicate that by 2070, Puerto Rico is predicted to experience 
a decrease in rainfall along with increased drought intensity under RCP 
4.5 and 8.5 (Khalyani et al. 2016, p. 265; Bhardwaj et al. 2018, p. 
133; U.S. Global Change Research Program 2018, 20:820). The western 
region of Puerto Rico has already experienced negative trends in annual 
rainfall (PRCCC 2013, p. 7).
    Temperatures are also expected to rise between 2020 and 2070. Under 
RCP 4.5, a mean temperature increase of 4.6-5.4 degrees Celsius 
([deg]C) (40.3-41.7 degrees Fahrenheit ([deg]F)) is projected, and an 
increase of 7.5-9 [deg]C (45.5-48.2 [deg]F) is projected under RCP 8.5 
(Khalyani et al. 2016, p. 275). Precipitation decreases influenced by 
warming will tend to accelerate the hydrological cycles resulting in 
wet and dry extremes (Jennings et al. 2014, p. 4; Cashman et al. 2010, 
p. 1). Downscaled general circulation models predict dramatic shifts in 
the life zones of Puerto Rico with potential loss of subtropical rain, 
moist, and wet forests, and the appearance of tropical dry and very dry 
forests are anticipated under both RCP 4.5 and 8.5 scenarios (Khalyani 
et al. 2016, p. 275). Nonetheless, such predicted changes in life zones 
may not severely affect the palo de rosa due to its distribution 
throughout Puerto Rico, which includes different life zones and habitat 
types.
    Vulnerability to climate change impacts is a function of 
sensitivity to those changes, exposure to those changes, and adaptive 
capacity (IPCC 2007, p. 89; Glick and Stein 2010, p. 19). As described 
earlier, the palo de rosa is a species with low recruitment and seed 
dispersal limited to gravity diminishing its potential to reach areas 
with suitable microhabitat conditions for establishment. Despite the 
evidence of multiple reproductive events (fruit production) in one 
subpopulation, low recruitment of saplings and a population structure 
dominated by adult trees could be the result of mortality and thinning 
of individuals at the seedling stage due to drought stress. The 
projected prolonged droughts expected with climate change may affect 
the phenology of the palo de rosa resulting in the loss of developing 
flowers and fruits or reduce the viability of the few produced seeds 
reducing the likelihood of natural recruitment. In addition, hurricanes 
followed by extended periods of drought caused by climate change may 
result in microclimate alterations that could allow other plants 
(native or nonnative) to become established and invasive (Lugo 2000, p. 
246), which would preclude the recruitment of palo de rosa seedlings.
    Based on the distribution of the palo de rosa and its habitat, we 
have determined that conditions associated with climate change could 
impact this species. Climate change is almost certain to affect 
terrestrial habitats and the palo de rosa; however, the future extent 
and timing of those effects beyond the foreseeable future is uncertain. 
Some terrestrial plant populations are able to adapt and respond to 
changing climatic conditions (Franks et al. 2013, entire), but the palo 
de rosa's ability to do so is unknown. A sound, long-term monitoring of 
known palo de rosa populations is needed to understand the effects on 
the species' viability.
    In summary, other natural and manmade factors, such as hurricanes 
and related threats due to habitat fragmentation, edge habitat, habitat 
intrusion by exotic plant species, and the low recruitment and limited 
dispersal of the palo de rosa, are current threats to the species. 
Hurricanes and post-hurricane habitat encroachment and nonnative plant 
invasion have affected subpopulations along the northern coast of 
Puerto Rico (USFWS 2018, entire). Invasive species can preclude the 
establishment of new palo de rosa individuals through competition for 
sunlight, nutrients, water, and space to grow. Although climate change 
is almost certain to affect terrestrial habitats, there is uncertainty 
about how predicted future changes in temperature, precipitation, and 
other factors will influence the palo de rosa.

Small Population Size

    At the time of listing (55 FR 13488, April 10, 1990), we considered 
small population size as a threat affecting the continued survival of 
the palo de rosa based on the species' limited distribution and low 
number of individuals (i.e., only nine individuals throughout the 
species' range in Puerto Rico). Based on this information, we 
considered the risk of extinction of the palo de rosa very high. New 
distribution and abundance information available since the species was 
listed reflects that the palo de rosa is more abundant and widely 
distributed than previously thought (USFWS 2017, entire); thus, we no 
longer consider limited distribution as an imminent threat to this 
species. However, at least 37 (56 percent) of the known subpopulations 
are composed of 10 or fewer individuals. The effect of small population 
size exacerbates other threats and makes these subpopulations 
vulnerable to extirpation by stochastic and catastrophic events.

Overall Summary of Factors Affecting the Species

    We have carefully assessed the best scientific and commercial 
information available regarding the threats faced by the palo de rosa 
in developing this rule. Limited distribution and a low number of 
individuals were considered a threat

[[Page 66603]]

to the palo de rosa when we listed the species (55 FR 13488, April 10, 
1990), but recent information indicates the species is more abundant 
and widely distributed than known at the time of listing. However, 
other threats are still affecting the palo de rosa. Based on the 
analysis above, although we no longer consider limited distribution as 
an imminent threat to this species, we conclude that habitat 
destruction and modification on privately owned lands (particularly 
along the northern coast of Puerto Rico) and other natural or manmade 
factors (e.g., hurricanes, habitat fragmentation resulting in lack of 
connectivity between individuals, and habitat encroachment by invasive 
species), while greatly reduced, continue to threaten palo de rosa 
populations. In addition, low recruitment related to sporadic flowering 
and fruit production and the slow growth of seedlings under close 
canopy conditions (e.g., species reproductive biology and ecology) 
coupled with the threats discussed above are expected to remain threats 
to the palo de rosa.
    It is also expected that the palo de rosa will be affected by 
climate change within the foreseeable future, particularly by 
generalized changes in precipitation and drought conditions. Climate 
change is expected to result in more intense hurricanes and extended 
periods of drought. Increased hurricanes are expected to cause direct 
mortality of adult trees downed due to high winds whereas more intense 
drought conditions are expected to reduce the species' reproductive 
output (reduced flowering and fruiting events) and preclude seedling 
and sapling recruitment. However, based on the best available data, we 
do not consider climate change to represent a current or an imminent 
threat to this species across its range.
    Species viability, or the species' ability to sustain populations 
over time, is related to the species' ability to withstand catastrophic 
population- and species-level events (redundancy) to adapt to novel 
changes in its biological and physical environment (representation) and 
to withstand environmental and demographic stochasticity and 
disturbances (resiliency). The viability of a species is also dependent 
on the likelihood of new stressors or continued threats, now and in the 
future, that act to reduce a species' redundancy, representation, and 
resiliency. A highly resilient palo de rosa population should be 
characterized by sufficient abundance and connectivity between 
reproductive individuals to allow for reproductive events and cross-
pollination, an age class structure representative of recruitment 
greater than mortality, multiple subpopulations within the population, 
and the availability of high-quality habitat to allow for recruitment. 
High representation for the species is characterized by multiple 
populations occurring within a wide range of environmental conditions 
(e.g., substrate and precipitation) that allow for sufficient genetic 
variability. Multiple resilient populations across the range of the 
species characterize high redundancy for the palo de rosa.
    We evaluated the biological status of the palo de rosa both 
currently and into the future considering the species' viability as 
characterized by its resiliency, redundancy, and representation. Based 
on the analysis of available herbarium specimens, we have determined 
the species' distribution and abundance was once more common and 
widespread and likely was a dominant late-successional species of 
coastal to middle elevation (500 m (1,640 ft)) habitats and even 
extended to coastal valleys and sand dunes (Monsegur-Rivera 2019, pers. 
obs.).
    The current known palo de rosa subpopulations are remnants of the 
species' historical distribution persisting on areas of low 
agricultural value (e.g., top of the mogotes) that were affected by 
deforestation for charcoal production as evidenced by individuals with 
multiple trunks of palo de rosa sprouting from the same base. Based on 
the available information on the palo de rosa's natural distribution at 
the time of listing as well as considering that 40 of the known 66 
subpopulations currently show no recruitment and that no subpopulations 
appear to be expanding due to natural dispersal, palo de rosa 
populations exhibit reduced resiliency. No subpopulations appear to be 
dispersing, and no populations are highly resilient. None of the 
currently known palo de rosa subpopulations are considered a recent 
colonization event or natural expansion of the species within its 
habitat.
    The species persisted through the almost entire deforestation of 
Puerto Rico with less than 6 percent of remaining forested habitat 
across the island by the 1930s (Franco et al. 1997, p. 3) when the low-
elevation coastal valleys habitat of the palo de rosa was extensively 
deforested for agricultural practices (e.g., sugar cane and tobacco 
plantations). There are broad accounts regarding the extensive 
deforestation and habitat modification that occurred in Puerto Rico 
until the 1950s (Franco et al. 1997, p. 3), which resulted in changes 
in forest structure and diversity, pollinators' assemblages, seed 
dispersers, and the prevailing microhabitat conditions in which the 
palo de rosa evolved. Despite the return from such deforestation, known 
subpopulations show a clustered and patchy distribution and are 
characterized by a population structure dominated by adults. Moreover, 
the species faces a low recruitment rate and slow growth resulting in 
few saplings reaching a reproductive size; in addition, the species 
shows minimal or no dispersal (limited to gravity). Based on our 
observations, it has taken about 60 years from the peak of 
deforestation (1930s) for the palo de rosa to show some initial 
evidence of recruitment.
    We consider that the palo de rosa has limited redundancy as it is 
known from multiple subpopulations (66) throughout its geographical 
range representing 14 natural populations distributed throughout the 
southern and northern coasts of Puerto Rico. Nonetheless, about 37 (56 
percent) of the known subpopulations are composed of 10 or fewer 
individuals and show little or no recruitment and, thus, reduced 
resiliency. As described above, the species faces a low recruitment 
rate, slow growth and limited dispersal, and patchy and small 
subpopulations resulting in an increased vulnerability to extirpation 
of these subpopulations. All of these characteristics are limiting 
factors and make the species vulnerable to catastrophic and stochastic 
events, such as hurricanes and droughts, that can cause local 
extirpations. The best available information indicates that the palo de 
rosa is not naturally expanding into or colonizing habitats outside the 
areas where it is known to occur.
    In terms of the representation of the palo de rosa, we have no data 
on its genetic variability. Although the species occurs in a wide range 
of habitats and environmental conditions, it has a fragmented 
distribution, scattered (sporadic) flowering events, and a low 
recruitment rate. Thus, little or no genetic exchange is thought to 
occur between extant subpopulations likely resulting in outbreeding 
depression, which may explain the lack of effective reproduction and 
recruitment (Frankham et al. 2011, p. 466). The low recruitment rate 
results in little transfer of genetic variability into future 
generations, limits the expansion of the species outside its current 
locations, and limits its ability to adapt to changing environmental 
conditions. For example, the loss or reduction of connectivity between 
subpopulations in areas like Arecibo-Vega Baja, Dorado, La Virgencita, 
Mogotes de Nevares, and

[[Page 66604]]

San Juan-Fajardo can be detrimental to the long-term viability of the 
species as it affects cross-pollination and, therefore, gene flow. In 
fact, the only populations that occur entirely within native forest 
areas managed for conservation are GCF and SCF. This continued 
protected habitat provides for an effective cross-pollination (gene 
flow) that can secure the long-term viability of the species. However, 
the overall representation of the palo de rosa is reduced as the GCF 
and SCF populations are restricted to the southern coast, and the 
genetic representation of the palo de rosa in the northern karst area, 
a different ecological environment, is vulnerable because that habitat 
is threatened by destruction or modification.

Determination of Status

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

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
have determined that the palo de rosa's current viability is higher 
than was known at the time of listing (population current estimate of 
1,144 individuals in 66 subpopulations) based on the best available 
information. The increase in the number of known individuals and new 
localities reflects increased survey efforts but does not necessarily 
indicate that previously known populations are naturally expanding 
their range. The number of palo de rosa individuals has changed from 9 
individuals in protected lands at the time of listing to 407 
individuals (32 percent of subpopulations) occurring in areas managed 
for conservation (e.g., Commonwealth Forest and Federal lands). 
Furthermore, 396 individuals (38 percent of subpopulations) occur in 
areas subject to little habitat modification due to the steep 
topography in the northern karst region of Puerto Rico. The remaining 
30 percent of the subpopulations (containing approximately 341 
individuals) occur within areas severely encroached upon by and 
vulnerable to urban or infrastructure development. Nonetheless, habitat 
destruction and modification on privately owned lands (particularly 
along the northern coast of Puerto Rico) and other natural or manmade 
factors (such as hurricanes, habitat fragmentation, lack of 
connectivity between populations, habitat intrusion by invasive 
species, and the species' reproductive biology) continue to threaten 
the viability of the palo de rosa.
    Although population numbers and abundance of the palo de rosa have 
increased and some identified threats have decreased, our analysis 
indicates that threats remain. After assessing the best available 
information, we conclude that the palo de rosa no longer meets the 
Act's definition of an endangered species throughout all of its range. 
We therefore proceed with determining whether the palo de rosa meets 
the Act's definition of a threatened species (i.e., is likely to become 
endangered within the foreseeable future) throughout all of its range.
    In terms of habitat destruction and modification, we can reasonably 
determine that 70 percent of subpopulations (71 percent of individuals) 
are not expected to be substantially affected by habitat destruction 
and modification in the foreseeable future. This majority occurs within 
protected lands managed for conservation (36 percent of the known 
individuals or 32 percent of subpopulations) or on private lands with 
low probability of modification due to steep topography (35 percent of 
the known individuals or 38 percent of subpopulations). However, for 
the 30 percent of subpopulations (30 percent of the known individuals) 
occurring in areas severely encroached upon by and vulnerable to urban 
or infrastructure development now and into the future, we are 
reasonably certain these subpopulations will continue to have a lower 
resiliency (due to reduced connectivity (cross-pollination) and lack of 
recruitment) and, in some cases, may experience the loss of individuals 
or subpopulations adjacent to critical infrastructure such as highways 
or other development within the foreseeable future (e.g., Hacienda 
Sabanera, PR-2 and PR-22 maintenance and expansion, Islote Ward 
extirpation).
    We have evidence that some populations are showing signs of 
reproduction and recruitment. However, due to the slow growth of the 
species it may take several decades to ensure these recruitment events 
effectively contribute to a population's resiliency (new individuals 
reach a reproductive size). Despite no longer considering limited 
distribution as an imminent threat to this species, we have identified 
factors associated with habitat modification and other natural or 
manmade factors that still have some impacts on the palo de rosa and 
affect the species' viability and effective natural recruitment. The 
species still faces dispersal problems, and the recruitment is still 
limited to the proximity of parent trees; we have no evidence of a palo 
de rosa population that is the result of a recent colonization event or 
a significant population expansion. This renders the known 
subpopulations vulnerable to adverse effects related to habitat 
fragmentation and lack of connectivity, which may preclude future 
recruitment and the population's resiliency.
    In addition, despite the presence of regulations protecting the 
species both on public and private lands, the protection of palo de 
rosa trees on private lands remains challenging. Habitat modifications 
and fragmentation continue to occur on private lands, which can 
increase the likelihood of habitat intrusion by exotic plants and 
human-induced fires and reduce connectivity between populations 
(affecting cross-pollinations) and the availability of suitable habitat 
for the natural recruitment of the species. Still, none of these is an 
imminent threat to the species at a magnitude such that the taxon 
warrants endangered status across its range. Thus, after assessing the 
best available information, we conclude that the palo de rosa is not 
currently in danger of extinction but likely to become in danger of 
extinction in the foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological Diversity) 
vacated

[[Page 66605]]

the aspect of the Final Policy on Interpretation of the Phrase 
``Significant Portion of Its Range'' in the Endangered Species Act's 
Definitions of ``Endangered Species'' and ``Threatened Species'' (79 FR 
37578, July 1, 2014) that provided that the Services do not undertake 
an analysis of significant portions of a species' range if the species 
warrants listing as threatened throughout all of its range. Therefore, 
we proceed to evaluating whether the species is endangered in a 
significant portion of its range--that is, whether there is any portion 
of the species' range for which both (1) the portion is significant and 
(2) the species is in danger of extinction in that portion. Depending 
on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    Following the court's holding in Center for Biological Diversity, 
we now consider whether there are any significant portions of the 
species' range where the species is in danger of extinction now (i.e., 
endangered). In undertaking this analysis for the palo de rosa, we 
choose to address the status question first--we consider information 
pertaining to the geographic distribution of both the species and the 
threats that the species faces to identify any portions of the range 
where the species may be endangered. Kinds of threats and levels of 
threats are more likely to vary across a species' range if the species 
has a large range rather than a very small natural range, such as the 
palo de rosa. Species with limited ranges are more likely to experience 
the same kinds and generally the same levels of threats in all parts of 
their range.
    For the palo de rosa, we considered whether the threats are 
geographically concentrated in any portion of the species' range at a 
biologically meaningful scale in the context of its small natural range 
or if the status of the species differs in a portion of the range due 
to other factors. We examined the following threats: habitat 
destruction, fragmentation, and modification; invasive species; 
hurricanes; and the effects of climate change, including cumulative 
effects. We have identified habitat destruction and modification as 
threatening known populations in three of the five areas along the 
southern coast of Puerto Rico and eight of nine populations along the 
northern coast of Puerto Rico, particularly on privately owned lands 
throughout the range of the species. In addition, habitat destruction 
and modification are occurring within the species' range in Hispaniola. 
Habitat encroachment by invasive plant species and habitat 
fragmentation caused by harvesting of timber for fence posts and 
maintaining rights-of-way are also considered to be further stressors 
to the viability of the palo de rosa across its range. Changes in 
climatic conditions are expected to result in more intense hurricanes 
and extended periods of drought under RCPs 4.5 and 8.5, but the effect 
of these changes on the palo de rosa is unknown. The expected changes 
in climatic conditions will affect all palo de rosa populations 
uniformly across the range of the species. Lastly, palo de rosa 
populations across the range experience low recruitment rates, slow 
growth, and limited dispersal.
    Overall, the threats to palo de rosa viability affect the species 
similarly across the range of the species. We found no concentration of 
threats and no other factors in any portion of the palo de rosa's range 
at a biologically meaningful scale that place the palo de rosa in that 
geographic area in danger of extinction. Thus, there are no portions of 
the species' range where the species has a different status from its 
rangewide status. Therefore, no portion of the species' range provides 
a basis for determining that the species is in danger of extinction in 
a significant portion of its range; however, we determine that the 
species is likely to become endangered within the foreseeable future 
throughout all of its range. This is consistent with the courts' 
holdings in Desert Survivors v. Department of the Interior, No. 16-cv-
01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for 
Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 
2017).

Determination of Status

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

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

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' demonstrates a large degree 
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). 
Conservation is defined in the Act to mean the use of all methods and 
procedures that are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary. Additionally, the second sentence 
of section 4(d) of the Act states that the Secretary may by regulation 
prohibit with respect to any threatened species any act prohibited 
under section 9(a)(1), in the case of fish or wildlife, or 9(a)(2), in 
the case of plants. Thus, the combination of the two sentences of 
section 4(d) provides the Secretary with wide latitude of discretion to 
select and promulgate appropriate regulations tailored to the specific 
conservation needs of the threatened species. The second sentence 
grants particularly broad discretion to the Service when adopting the 
prohibitions under section 9 of the Act.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council 
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the Act was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to [her]with regard to the permitted activities for those species. 
[She] may, for example, permit taking, but not importation of such 
species, or [she] may choose to forbid both taking and importation but 
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    In the early days of the Act, the Service published at 50 CFR 17.71 
a general protective regulation that would apply to each threatened 
plant species, unless we were to promulgate a separate species-specific 
protective regulation for that species. In the wake of the court's CBD 
v. Haaland decision vacating a 2019 regulation that had made 50 CFR

[[Page 66606]]

17.71 inapplicable to any species listed as a threatened species after 
the effective date of the 2019 regulation, the general protective 
regulation applies to all threatened species, unless we adopt a 
species-specific protective regulation. As explained below, we are 
adopting a species-specific rule that sets out all of the protections 
and prohibitions applicable to palo de rosa.

Provisions of the 4(d) Rule

    Exercising the Secretary's authority under section 4(d) of the Act, 
we have developed a species-specific rule that is designed to address 
the palo de rosa's specific threats and conservation needs. As 
discussed above under Summary of Biological Status and Threats, we have 
concluded that the palo de rosa is likely to become endangered within 
the foreseeable future primarily due to habitat destruction and 
modification, particularly by urban development, right-of-way 
maintenance, rock quarries, and grazing. Additionally, other natural or 
manmade factors like hurricanes, invasive species, and landslides still 
threaten the species. The provisions of this 4(d) rule promote 
conservation of the palo de rosa by encouraging conservation programs 
for the species and its habitat and promoting additional research to 
inform future habitat management and recovery actions for the species. 
Section 4(d) requires the Secretary to issue such regulations as she 
deems necessary and advisable to provide for the conservation of each 
threatened species and authorizes the Secretary to include among those 
protective regulations any of the prohibitions that section 9(a)(2) of 
the Act prescribes for endangered species. Our current regulations at 
50 CFR 17.71 apply many of the prohibitions in section 9(a)(2) of the 
Act to all threatened plants, as clarified at 50 CFR 17.61. However, if 
we promulgate species-specific protective regulations for a given 
species, the species-specific regulations replace 50 CFR 17.71. We find 
that the protections, prohibitions, and exceptions in this rule as a 
whole satisfy the requirement in section 4(d) of the Act to issue 
regulations deemed necessary and advisable to provide for the 
conservation of the palo de rosa.
    The protective regulations we are proposing for palo de rosa 
incorporate prohibitions from section 9(a)(2) to address the threats to 
the species. Section 9(a)(2) prohibits the following activities for 
endangered plants: importing or exporting; certain acts related to 
removing, damaging, and destroying; delivering, receiving, carrying, 
transporting, or shipping in interstate or foreign commerce in the 
course of commercial activity; or selling or offering for sale in 
interstate or foreign commerce.
    As discussed above under Summary of Biological Status and Threats, 
the present or threatened destruction, modification, or curtailment of 
the species' habitat or range (specifically, urban development, 
maintenance of power lines and associated rights-of-way, infrastructure 
development, rock quarries, grazing by cattle, and extraction of fence 
posts), inadequacy of existing regulatory mechanisms, and other natural 
or manmade factors affecting the species' continued existence 
(specifically, hurricanes, invasive plant species, landslides, and 
habitat fragmentation and lack of connectivity between subpopulations) 
are affecting the status of the palo de rosa. A range of activities 
have the potential to impact this plant, including recreational and 
commercial activities. Regulating these activities will help preserve 
the species' remaining populations, slow their rate of potential 
decline, and decrease synergistic, negative effects from other 
stressors. As a whole, the regulation would help in the efforts to 
recover the species.
    Despite these prohibitions regarding threatened species, we may 
under certain circumstances issue permits to carry out one or more 
otherwise-prohibited activities, including those described above. The 
regulations that govern permits for threatened plants state that the 
Director may issue a permit authorizing any activity otherwise 
prohibited with regard to threatened species (50 CFR 17.72). Those 
regulations also state that the permit shall be governed by the 
provisions of Sec.  17.72 unless a special rule applicable to the plant 
is provided in Sec. Sec.  17.73 to 17.78. Therefore, permits for 
threatened species are governed by the provisions of Sec.  17.72 unless 
a species-specific 4(d) rule provides otherwise. We note that, although 
our recent revisions to Sec.  17.71 had made the prohibitions in Sec.  
17.71(a) inapplicable to any plant listed as a threatened species after 
September 26, 2019, the general protective regulation at 50 CFR 17.71 
now applies because of the court's decision vacating the 2019 
regulations. We anticipate that permitting provisions would generally 
be similar or identical for most species, so applying the provisions of 
Sec.  17.72 unless a species-specific 4(d) rule provides otherwise 
would likely avoid substantial duplication. Under 50 CFR 17.72 with 
regard to threatened plants, a permit may be issued for the following 
purposes: for scientific purposes, to enhance propagation or survival, 
for economic hardship, for botanical or horticultural exhibition, for 
educational purposes, or for other purposes consistent with the 
purposes and policy of the Act. Additional statutory exemptions from 
the prohibitions are found in sections 9 and 10 of the Act.
    We recognize the special and unique relationship with our State and 
Territorial natural resource agency partners in contributing to 
conservation of listed species. State and Territorial agencies often 
possess scientific data and valuable expertise on the status and 
distribution of endangered, threatened, and candidate species of 
wildlife and plants. State and Territorial agencies, because of their 
authorities and their close working relationships with local 
governments and landowners, are in a unique position to assist the 
Services in implementing all aspects of the Act. In this regard, 
section 6 of the Act provides that the Services shall cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. Therefore, any qualified employee or agent of a 
State conservation agency that is a party to a cooperative agreement 
with the Service in accordance with section 6(c) of the Act, who is 
designated by his or her agency for such purposes, would be able to 
conduct activities designed to conserve the palo de rosa that may 
result in otherwise prohibited activities without additional 
authorization.
    Once the palo de rosa was federally listed, legal protection was 
extended by virtue of an existing cooperative agreement (under section 
6 of the Act) with the Commonwealth of Puerto Rico. Therefore, this 
provision will work in concert with the cooperative agreement to ensure 
that conservation actions conducted by employees or agents of the 
Commonwealth are not prohibited.
    We also recognize the beneficial and educational aspects of 
activities with seeds of cultivated plants, which generally enhance the 
propagation of the species and, therefore, would satisfy permit 
requirements under the Act. We intend to monitor the interstate and 
foreign commerce and import and export of these specimens in a manner 
that will not inhibit such activities providing the activities do not 
represent a threat to the survival of the species in the wild. In this 
regard, seeds of cultivated specimens would not be regulated provided a 
statement that the seeds are of ``cultivated origin'' accompanies the 
seeds or their container.
    Nothing in this 4(d) rule would change in any way the recovery 
planning provisions of section 4(f) of the Act, the consultation 
requirements

[[Page 66607]]

under section 7 of the Act, or our ability to enter into partnerships 
for the management and protection of the palo de rosa. However, 
interagency cooperation may be further streamlined through planned 
programmatic consultations for the species between us and other Federal 
agencies, where appropriate.

Required Determinations

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined in the National Environmental Policy Act 
of 1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection 
with determining a species' listing status under the Endangered Species 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244). We also 
determine that 4(d) rules that accompany regulations adopted pursuant 
to section 4(a) of the Act are not subject to the National 
Environmental Policy Act.

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), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We have determined that there are no 
Tribal lands affected by this rule.

References Cited

    A complete list of references cited is available on https://www.regulations.gov under Docket Number FWS-R4-ES-2020-0059 and upon 
request form the Caribbean Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this document are staff members of the 
Caribbean Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we hereby 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
Amend Sec.  17.12 in paragraph (h) by revising the entry ``Ottoschulzia 
rhodoxylon'' under Flowering Plants in the List of Endangered and 
Threatened Plants to read as follows:


Sec.  17.12   Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                           Listing citations and
        Scientific name             Common name        Where listed          Status          applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
 
                                                  * * * * * * *
Ottoschulzia rhodoxylon........  Palo de rosa.....  Wherever found...  T................  55 FR 13488, 4/10/
                                                                                           1990; 87 FR [Insert
                                                                                           Federal Register page
                                                                                           where the document
                                                                                           begins], 11/4/2022;
                                                                                           50 CFR 17.73(g). \4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.73 by adding paragraph (g) to read as follows:


Sec.  17.73   Special rules--flowering plants.

* * * * *
    (g) Ottoschulzia rhodoxylon (palo de rosa)--(1) Prohibitions. The 
following prohibitions that apply to endangered plants also apply to 
Ottoschulzia rhodoxylon (palo de rosa). Except as provided under 
paragraph (g)(2) of this section, it is unlawful for any person subject 
to the jurisdiction of the United States to commit, to attempt to 
commit, to solicit another to commit, or cause to be committed, any of 
the following acts in regard to this species:
    (i) Import or export, as set forth at Sec.  17.61(b) for endangered 
plants.
    (ii) Remove and reduce to possession the species from areas under 
Federal jurisdiction; maliciously damage or destroy the species on any 
such area; or remove, cut, dig up, or damage or destroy the species on 
any other area in knowing violation of any law or regulation of any 
State or in the course of any violation of a State criminal trespass 
law.
    (iii) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.61(d) for endangered plants.
    (iv) Sale or offer for sale, as set forth at Sec.  17.61(e) for 
endangered plants.
    (2) Exceptions from prohibitions. In regard to Ottoschulzia 
rhodoxylon (palo de rosa), you may:
    (i) Conduct activities, including activities prohibited under 
paragraph (f)(1) of this section, if they are authorized by a permit 
issued in accordance with the provisions set forth at Sec.  17.72.
    (ii) Remove and reduce to possession from areas under Federal 
jurisdiction, as set forth at Sec.  17.71(b).
    (iii) Engage in any act prohibited under paragraph (g)(1) of this 
section with seeds of cultivated specimens, provided that a statement 
that the seeds are of ``cultivated origin'' accompanies the seeds or 
their container.

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-23822 Filed 11-3-22; 8:45 am]
BILLING CODE 4333-15-P