Endangered and Threatened Wildlife and Plants; Reclassification of Eugenia woodburyana From Endangered to Threatened With a Section 4(d) Rule, 73994-74013 [2022-25706]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 87, Number 231 (Friday, December 2, 2022)]
[Rules and Regulations]
[Pages 73994-74013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25706]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2019-0070; FXES11130900000C2-189-FF09E42000]
RIN 1018-BD01


Endangered and Threatened Wildlife and Plants; Reclassification 
of Eugenia woodburyana 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 (downlisting) the plant Eugenia woodburyana (no common 
name) from an endangered species to a threatened species under the 
Endangered Species Act of 1973, as amended (Act), due to improvements 
in the species' status since its original listing in 1994. This action 
is based on a thorough review of the best available scientific and 
commercial information, which indicates that E. woodburyana is not 
currently in danger of extinction throughout all or a significant 
portion of its range, but it is likely to become so within the 
foreseeable future. We are also finalizing a rule issued under section 
4(d) of the Act to provide measures that are necessary and advisable 
for the conservation of E. woodburyana.

DATES: This rule is effective January 3, 2023.

ADDRESSES: The supporting documents we used in preparing this rule and 
public comments we received on the proposed rule are available on the 
internet at https://www.regulations.gov in Docket No. FWS-R4-ES-2019-
0070.

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

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, if a species is 
determined to no longer be an endangered or threatened species, we may 
reclassify the species or remove it from the Federal Lists of 
Endangered and Threatened Wildlife and Plants due to recovery. A 
species is an ``endangered species'' for purposes of the Act if it is 
in danger of extinction throughout all or a significant portion of its 
range and is a ``threatened species'' if it is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. We are reclassifying Eugenia 
woodburyana from endangered to threatened (i.e., ``downlisting'' the 
species) because we have determined that the species is no longer in 
danger of extinction throughout all or a significant portion of its 
range. Downlisting a species can only be completed by issuing a rule.
    What this document does. This rule reclassifies E. woodburyana from 
endangered to threatened (i.e., ``downlists'' the species), with a rule 
issued under section 4(d) of the Act, based on the species' current 
status, which has been improved through implementation of conservation 
actions.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species based on any one or a 
combination 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. In our May 2017, 5-year status 
review, we made a recommendation to reclassify this plant from 
endangered to threatened based on our evaluation of these same five 
factors. Based on the status review, the current threats analysis, and 
evaluation of conservation measures, we conclude that the plant E. 
woodburyana no longer meets the Act's definition of an endangered 
species, and we are reclassifying it as a threatened species because it 
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.
    New information indicates that E. woodburyana is now more abundant 
and more widely distributed than when it was listed in 1994, when only 
approximately 45 individuals were known from 3 localities in 
southwestern Puerto Rico. In the recovery plan for E. woodburyana 
(Service 1998), the species was identified as occurring in 4 locations 
in southwest Puerto Rico, totaling approximately 150 individuals. 
Currently, self-sustaining E. woodburyana natural populations are known 
to occur in 6 localities along southern Puerto Rico, extending from the 
municipality of Cabo Rojo in the southwest eastward to the municipality 
of Salinas in the south, totaling approximately 2,751 individuals, not 
including seedlings. About 47 percent of the currently known 
individuals occur under protective status in areas managed for 
conservation and where threats due to habitat modification have been 
reduced. Recovery actions (e.g.,

[[Page 73995]]

propagation and planting, habitat enhancement with native tree species, 
cattle exclusion, firebreaks) to control and reduce remaining threats 
have been successfully implemented in collaboration with several 
partners.
    Our review of the best available scientific and commercial 
information indicates that some threats to E. woodburyana still remain 
while others have been reduced. Remaining threats that will make this 
species likely to become endangered in the foreseeable future include 
habitat loss, degradation, and fragmentation, and other natural or 
manmade factors such as human-induced fires and landslides.
    We are promulgating a section 4(d) rule. We are specifically 
tailoring the incidental take exceptions under section 9(a)(1) of the 
Act to the species to provide protective mechanisms to State and 
Federal partners so that they may continue with certain activities that 
are not anticipated to cause direct injury or mortality to E. 
woodburyana and that will facilitate the conservation and recovery of 
the species.
    Peer review and public comment. In accordance with our joint policy 
on peer review published in the Federal Register on July 1, 1994 (59 FR 
34270), and our August 22, 2016, memorandum updating and clarifying the 
role of peer review of listing actions under the Act, we solicited 
expert opinion on our October 21, 2020, proposed rule to downlist E. 
woodburyana (85 FR 66906). The Service sent the proposed rule to five 
independent peer reviewers and received three responses. The purpose of 
peer review is to ensure that our determination is based on 
scientifically sound data, assumptions, and analyses. The peer 
reviewers have expertise that includes familiarity with the species and 
its habitat, biological needs, and threats.

Previous Federal Actions

    This species was originally listed as endangered under the 
Endangered Species Act on September 9, 1994 (59 FR 46715). On October 
21, 2020, we proposed to downlist E. woodburyana from endangered to 
threatened (85 FR 66906). Please refer to that proposed rule for a 
detailed description of previous Federal actions concerning this 
species. The proposed rule and supplemental documents are provided at 
https://www.regulations.gov under Docket No. FWS-R4-ES-2019-0070.

Summary of Changes From the Proposed Rule

    In preparing this final rule, we reviewed and fully considered all 
comments we received during the comment period from the peer reviewers 
and the public on the proposed rule to downlist E. woodburyana. We made 
minor changes and corrections throughout this document in response to 
comments. However, the information we received during the public 
comment period on the proposed rule did not change our determination 
that E. woodburyana should be reclassified from endangered to 
threatened under the Act.

Summary of Comments and Recommendations

    In the proposed rule published on October 21, 2020 (85 FR 66906), 
we requested that all interested parties submit written comments on the 
proposal by December 21, 2020. We also contacted the Puerto Rico 
Department of Natural and Environmental Resources (PRDNER), scientific 
experts and organizations, and other interested parties and invited 
them to comment on the proposal. A newspaper notice inviting public to 
provide comments was published in Primera Hora on October 22, 2020.
    On April 26, 2021, we reopened the comment period on the October 
21, 2020, proposed rule for an additional 30 days and announced a 
public hearing on the proposed rule (86 FR 22005). A newspaper notice 
inviting public to provide comments at the public hearing was published 
in Primera Hora and El Nuevo D[iacute]a on April 28, 2021, and at The 
Virgin Islands Daily News on April 27, 2021. We conducted the public 
hearing on May 12, 2021. No comments were received during or following 
the public hearing.
    During the open comment periods, we received very few public 
comments, both in support of and opposed to our proposed downlisting of 
Eugenia woodburyana, but most did not include substantive information. 
Submissions merely stating support for, or opposition to, the action 
under consideration without providing supporting information, although 
noted, will not be considered in making a determination, as section 
4(b)(1)(A) of the Act directs that determinations as to whether any 
species is an endangered or a threatened species must be made ``solely 
on the basis of the best scientific and commercial data available.'' 
All substantive information we received from the peer reviewers and 
from the public during the proposed rule's comment periods has either 
been incorporated directly into this final determination or is 
addressed below.

Peer Reviewer Comments

    We reviewed all comments we received from peer reviewers for 
substantive issues and new information regarding E. woodburyana. The 
reviewers provided editorial and technical comments that were generally 
supportive of our approach; the peer reviewers made suggestions and 
comments that strengthened our analysis and improved the final rule.
    (1) Comment: One peer reviewer stated that the Service cannot claim 
an increase in the number of E. woodburyana populations, as the 
historic population at Pe[ntilde]ones de Melones was extirpated.
    Response: We consider the geographical area of Pe[ntilde]ones de 
Melones as a range extension of Sierra Bermeja, and, therefore, we do 
not consider the loss of the Pe[ntilde]ones de Melones individuals as 
the extirpation of a genetically unique population critical for the 
recovery of the species. Moreover, the number of individuals recorded 
at Sierra Bermeja has steadily increased since the time of listing, 
evidence exists of reproductive events (flowers and fruit production) 
on a yearly basis, and the population structure shows multiple age 
classes, which indicates the population is improving.
    (2) Comment: A peer reviewer stated that the population size of E. 
woodburyana is not sufficiently robust to reclassify the species to a 
threatened status. The reviewer highlights that a good population of 
any species must have at least 2,500 adult individuals to be considered 
a healthy population and that this is not the case for E. woodburyana. 
The peer reviewer asserts that existing E. woodburyana populations will 
continue decreasing due to ongoing threats.
    Response: We have no information (either in our files or provided 
by commenters or reviewers) to indicate that 2,500 individuals is the 
minimum required to be a healthy population for this species, although 
we note that we presently have 2,751 individuals. As previously stated, 
the presence of different size classes in three (i.e., Sierra Bermeja, 
Alm[aacute]cigo Bajo, and Ca[ntilde]on Murci[eacute]lagos (GCF)) out of 
the six known E. woodburyana populations is an indicator of their 
improving status, and resilience to past and ongoing threats, but is 
not sufficient to demonstrate that the species has fully recovered as 
we have no evidence of the species naturally colonizing suitable 
habitat in the proximity of known populations.
    Under the Act and our implementing regulations, a species may 
warrant

[[Page 73996]]

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 
(i.e., if it meets the Act's definitions of an ``endangered species'' 
or a ``threatened species''). We make determinations of whether any 
species is an endangered species or a threatened species because of any 
of the five listing factors in section 4(a)(1) of the Act and based 
solely on the best scientific and commercial data available. As 
discussed below under Determination of Eugenia woodburyana's Status, we 
have determined that E. woodburyana no longer meets the definition of 
an endangered species under the Act, but the species does meet the 
definition of a threatened species.

Public Comments

    (3) Comment: One commenter questioned the implementation of several 
delisting criteria, including: (a) ``reduction and management of 
threats,'' (b) ``existing natural populations demonstrate a stable or 
increasing trend,'' and (c) ``establishment of three new populations of 
the species.'' The commenter explained that the issues affecting E. 
woodburyana recruitment will only worsen in the coming years as a 
result of climate change, the species' heavy reliance on rainfall for 
fruiting, and the potential for increased fire prevalence due to 
decreasing precipitation. Further, the commenter stated that the 
existence of multiple age classes of E. woodburyana at Finca Maria 
Luisa is not sufficient to indicate that the population is stable or 
increasing, as conservation recommendations have not been enforced and 
there is limited data on the sustainability or stability of the 
population. Finally, the commenter noted that survival following the 
first years after planting does not accurately reflect the long-term 
survival (viability) of the plant material. The commenter highlighted 
that the initial assessment of the planting efforts at La Tinaja in 
2016 was promising, with an 87 percent survival rate, but decreased to 
70 percent when it was reassessed in 2017, and then further to 45 
percent when it was assessed in 2019.
    Response: We acknowledge that recovery criteria for E. woodburyana 
have only been partially met, and the species will continue to have the 
protections of the Act as a threatened species. Additionally, recovery 
is a dynamic process that may or may not follow the criteria in a 
recovery plan due to a variety of factors (see Recovery, below). As 
stated above, we make our status determinations based on the best 
available scientific and commercial data at the time the determination 
is made. Our analysis of the best commercial and scientific information 
available indicates that E. woodburyana does not meet the Act's 
definition of an endangered species.
    At present, we know of approximately 2,751 plants, which is an 
increase from the 45 individuals known at the time of listing. In 
addition, about 47 percent of the currently known E. woodburyana 
individuals occur within lands managed for conservation where habitat 
management practices are being implemented (e.g., reforestation, cattle 
exclusion, and firebreaks). Although we acknowledge climate change 
scenarios will result in drier conditions within the subtropical dry 
forest life zone, its direct impacts on this species in the long term 
is uncertain because our ability to predict stressors associated with 
climate change is reduced beyond mid-century. At present, we have 
evidence of different size classes in three out of the six known 
populations (i.e., Sierra Bermeja, Alm[aacute]cigo Bajo, and GCF), 
suggesting stability and persistence despite past on ongoing threats. 
In addition, we have not identified a decline in the number of known 
individuals in these three populations; in fact, the number of known 
plants has increased since the time of listing and evidence exists of 
ongoing reproductive events (flower and fruit production), indicating 
that these populations are in good health and stable.
    In addition, available literature indicates that survival for 
existing plant reintroduction efforts is approximately 52 percent, and 
at least some sites are showing evidence of flower and fruit 
production, which are important characteristics of success for 
reintroduction efforts (Godefroid et al. 2011, p. 672). Planting and 
monitoring of individuals will continue to secure the long-term 
viability of ongoing efforts, and we will continue to work with our 
partners to secure the long-term viability and conservation of the 
species.

I. Reclassification Determination

Background

    A thorough review of the taxonomy, life history, ecology, and 
overall viability of E. woodburyana was presented in the 5-year review 
(USFWS 2017, entire). Below, we present a summary of the biological and 
distributional information discussed in the 5-year review and new 
information published or obtained since.

Taxonomy and Species Description

    Eugenia woodburyana is a small evergreen tree that belongs to the 
family Myrtaceae (Judd et al. 2002, p. 398). Eugenia is the largest 
genus of this family, which is very diverse in the Antilles and 
includes more native trees than any other genus of flowering plants in 
the flora of Puerto Rico (Breckon and Kolterman 1994, p. 5). E. 
woodburyana was first collected by Roy O. Woodbury in October 31, 1977, 
in the municipality of Gu[aacute]nica, Puerto Rico, and later described 
as a new species (Liogier 1994, p. 407). The species remains a valid 
species, and a recent molecular phylogenetic reconstruction to assess 
the evolutionary relationships of the Myrtaceae in the Caribbean 
confirmed its systematic placement within the genus Eugenia (Flickinger 
et al. 2020, p. 448).
    Eugenia woodburyana may reach up to 6 meters (m) (19.8 feet (ft)) 
(Liogier 1994, p. 407). Its leaves are chartaceous (thin and stiff), 
pubescent on both sides, obovate or elliptic, rounded at the apex, and 
dark green and shiny above, and paler beneath. The fruit is an eight-
winged, globose berry with a diameter of 2 centimeters (cm) (0.8 inches 
(in)) that turns red when mature (Liogier 1994, p. 407).

Reproductive Biology

    The reproductive biology of E. woodburyana had not been thoroughly 
studied at the time it was listed. According to data in the recovery 
plan, herbarium specimens collected in October and May at the GCF 
contained buds and flowers, whereas specimens collected in February and 
April were sterile. However, a specimen collected in March in Sierra 
Bermeja (southwest Puerto Rico) had remnants of flowers (USFWS 1998, 
pp. 3-4).
    Some information on the phenology and germination of E. woodburyana 
has been gathered since the species was listed. This plant has been 
observed flowering in February, May, June, August, and October, and not 
all individuals flower at the same time and not all produce fruits 
(USFWS 2017, p. 17). Therefore, we suspect it could flower February 
through October, depending on rain levels. Flower bud development has 
been observed 3 to 5 days after rain events of greater than 1 inch 
(25.4 millimeters (mm)) in 1 day, and fruits are observed about 3 weeks 
later (USFWS 2017, p. 17). In the event water availability becomes a 
limiting factor, the immature fruits may become dormant for months 
until conditions are favorable for developing (Monsegur-Rivera 2012-
2017, pers. obs.). Flowers

[[Page 73997]]

of E. woodburyana are typically visited by honeybees (Apis mellifera), 
and pollination and fruit production appear to be the result of cross-
pollination, as few fruits are produced when single individuals flower 
(Monsegur-Rivera 2012-2017, per. obs.).
    Eugenia woodburyana seeds can remain dormant for a considerable 
period of time, and likely vary in time of emergence (Santiago 2011, p. 
14). Recent germination trials indicate the species has a high 
germination rate (i.e., 70 percent), and that germination success is 
greater if seeds are planted within 2 weeks following harvesting. Seeds 
start germinating by developing a long taproot, an adaptation to secure 
access to water, and in the case of a sudden drought, the seed may stop 
development of new growths and go dormant (Monsegur-Rivera 2012-2014, 
pers. obs.). E. woodburyana is relatively easy to propagate. Over the 
past 10 years, the Service has worked with local partners to propagate 
and plant this species on lands managed for conservation in the Sierra 
Bermeja area (USFWS 2017, p. 11).

Distribution and Abundance

    Eugenia woodburyana was originally known from dry thickets within 
the GCF (Liogier 1980, p. 185; Breckon and Kolterman 1994, p. 5). In 
1981, this species was collected within the Cabo Rojo National Wildlife 
Refuge (CRNWR), and in 1984, at the dry serpentine slopes of Cerro 
Mariquita in Sierra Bermeja (Santiago-Blay et al. 2003, p. 1). At the 
time of listing, E. woodburyana was considered an endemic species of 
southwest Puerto Rico, known from only 45 individuals within the GCF, 
Sierra Bermeja, and an individual reported from the CRNWR. In addition, 
E. woodburyana was collected in 1996, at Pe[ntilde]ones de Melones in 
Cabo Rojo (Breckon 4863; MAPR herbaria). Thirteen individuals of this 
species were recorded during a study at La Tinaja Tract (Laguna 
Cartagena National Wildlife Refuge (LCNWR)), which found the species 
was present in open forest on east-facing slopes, and that it did not 
occur in areas in transition from pasture to forest (Weaver and Chinea 
2003, p. 279).
    Following the finalization of the species' recovery plan in 1998, 
new populations within the geographical areas of Montes de Barinas, 
between the municipalities of Yauco and Guayanilla, and Punta Cucharas, 
and between the municipalities of Ponce and Pe[ntilde]uelas, were 
identified by local experts and the Service (Rom[aacute]n-Guzm[aacute]n 
2006, p. 25). These reports expanded the species' distribution farther 
east within the subtropical dry limestone forest of Puerto Rico. The 
known range of the species continued to expand: In 2008, it was located 
at Alm[aacute]cigo Bajo Ward in the municipality of Yauco (USFWS 2017, 
p. 9). The species is also now known to extend to the Municipality of 
Salinas, as evidenced by a specimen collected within the boundaries of 
the Puerto Rico National Guard's Camp Santiago (Acevedo-
Rodr[iacute]guez 2014, p. 15; see table below). This locality is at 
least 18.6 miles (30 kilometers (km)) east of the previously nearest 
known site at Punta Cucharas in the municipality of Ponce. Below, we 
discuss each of these areas in more detail.

           Table of Currently Known Natural Populations and Number of Individuals (Adults and Saplings) of Eugenia Woodburyana in Puerto Rico
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Population name based on         Subpopulation    Number of known adults/saplings per subpopulation \1\     Land conservation
       geographical range           (locality) name       and percent of the total known population \2\               status               Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sierra Bermeja..................  La Tinaja Tract     808/271 (39.2%)......................................  Protected..............  U.S. Fish and
                                   (within LCNWR).                                                                                     Wildlife Service.
Sierra Bermeja..................  Finca Mar[iacute]a  692/90 (28.4%).......................................  Not protected..........  Private land under
                                   Luisa (also known                                                                                   conservation
                                   as Finca Escabi).                                                                                   easement with
                                                                                                                                       Para La
                                                                                                                                       Naturaleza.
                                                                                                                                       Threats not
                                                                                                                                       managed.
Sierra Bermeja..................  El Conuco (also     88/8 (3.5%)..........................................  Protected..............  Puerto Rico
                                   known as Finca                                                                                      Conservation
                                   Sollins).                                                                                           Trust (Para La
                                                                                                                                       Naturaleza).
Sierra Bermeja..................  Finca Lozada......  300 estimated adults (10.9%).........................  Not protected..........  Private.
Alm[aacute]cigo Bajo, Yauco.....  Alm[aacute]cigo     120/226 (12.6%)......................................  Not protected..........  Private.
                                   Bajo (R[iacute]o
                                   Loco).
Gu[aacute]nica Commonwealth       Ca[ntilde]on Hoya   10 estimated adults (0.36%)..........................  Protected..............  PRDNER.
 Forest.                           Honda.
Gu[aacute]nica Commonwealth       Ca[ntilde]on Las    31/8 (1.4%)..........................................  Protected..............  PRDNER.
 Forest.                           Eugenias.
Gu[aacute]nica Commonwealth       Ca[ntilde]on        27/39 (2.4%).........................................  Protected..............  PRDNER.
 Forest.                           Murci[eacute]lago
                                   s.
Gu[aacute]nica Commonwealth       Ca[ntilde]on Las    1 adult (0.04%)......................................  Protected..............  PRDNER.
 Forest.                           Trichilias.
Montes de Barinas...............  Finca               1 adult (0.04%)......................................  Not protected..........  Private.
                                   Catal[aacute].
Punta Cucharas (Ponce-            Pe[ntilde]on de     20 adults (0.7%).....................................  Not protected..........  Private.
 Pe[ntilde]uelas).                 Ponce.
Punta Cucharas (Ponce-            Puerto Galexda....  9 adults (0.3%)......................................  Not protected..........  Private.
 Pe[ntilde]uelas).
Punta Cucharas (Ponce-            Gasoducto Sur       1 adult (0.04%)......................................  Not protected..........  Private.
 Pe[ntilde]uelas).                 right-of-way.
Salinas.........................  Camp Santiago.....  1 adult (0.04%)......................................  Not protected..........  Puerto Rico
                                                                                                                                       National Guard.
                                                                                                                                       Threats not
                                                                                                                                       managed.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Seedlings not included as part of the population numbers because available data do not allow us to determine the percentage of seedlings that is
  recruited into the population. Existing data are sporadic, and the long-term survival of seedlings is uncertain due to natural thinning and
  environmental variables (e.g., drought stress).
\2\ The total known population is approximately 2,751 individuals, not including seedlings.


[[Page 73998]]

    As shown in the table above, the largest population and suitable 
habitat of E. woodburyana is found in Sierra Bermeja, southwest Puerto 
Rico, a mountain range that covers approximately 3,706 acres (ac) 
(1,500 hectares (ha)) (USFWS 2011a, p. 17). E. woodburyana is known 
from at least four locations (subpopulations) within this area: La 
Tinaja Tract, Finca Mar[iacute]a Luisa (also known as Finca Escabi), 
Finca Lozada, and El Conuco (also known as Finca Sollins) (Envirosurvey 
2020, p. 44). La Tinaja Tract is part of the LCNWR and occupies 263 ac 
(106.4 ha) in the foothills of Sierra Bermeja (USFWS 2011a, pp. 23, 
26), and lies within the subtropical dry Forest life zone (Ewel and 
Whitmore 1973, p. 10; Weaver and Chinea 2003, p. 273). Although the 
species is not specific to this type of habitat, drainages provide 
moist conditions (mesic) favorable for its establishment, which may 
explain the higher abundance of the species at these sites. In fact, an 
inventory of listed plant species at La Tinaja Tract accounted for 808 
adults and 271 saplings of E. woodburyana associated with those mesic 
habitats that favor germination and recruitment (Morales-P[eacute]rez 
2013, p. 4; Monsegur-Rivera 2009-2018, pers. obs.; see table above). In 
addition, 141 seedlings were found in La Tinaja Tract, indicating 
evidence of recruitment (Morales- P[eacute]rez 2013, p. 7). The 
occurrence in Sierra Bermeja of multiple listed plants and rare 
endemics is the result of the little agricultural value of the steep 
slopes, hence little deforestation, which resulted in a refugia for 
those species, including E. woodburyana. Nonetheless, the lower slopes 
of Sierra Bermeja and surrounding valleys are subject to different land 
use practices that hinder the expansion of the species and associated 
native vegetation due to threats such as fires, invasive grasses, and 
grazing, along with dry climate conditions (Weaver and Chinea 2003, pp. 
281-282).
    Finca Mar[iacute]a Luisa is private land that ranges from the upper 
slopes of Sierra Bermeja south to the coast near La Pitahaya in the 
Boquer[oacute]n Commonwealth Forest. This property is composed of a 
mosaic of habitats with different land uses that include ranching, hay 
production, and remnants of forested habitats. The forested habitat is 
adjacent to the boundaries of the LCNWR (La Tinaja Tract) and provides 
connectivity to the E. woodburyana subpopulations, particularly on La 
Tinaja Tract. An assessment of Finca Mar[iacute]a Luisa identified 629 
adults and 90 saplings of E. woodburyana (Envirosurvey 2020, p. 59, 62; 
see table above), as well as 105 seedlings. However, there is no 
information on the survival of those seedlings. This property is 
currently under a conservation easement managed by the nongovernmental 
organization Para La Naturaleza, Inc. (PLN), the operational unit of 
The Conservation Trust of Puerto Rico (PLN 2013). This easement 
provides for the conservation of the natural resources of the property, 
including E. woodburyana. However, there are some agricultural 
practices (e.g., grazing, forest conversion into grassland) that still 
threaten the species (PLN 2013, p. 56; USFWS 2017, p. 18; Envirosurvey 
2020, p. 49). El Conuco is another property owned and managed for 
conservation by PLN in Sierra Bermeja where E. woodburyana is found 
(PLN 2014). This property is located on the west side of the mountain 
range, and in 2014, a subpopulation of E. woodburyana was reported with 
at least 41 individuals (USFWS 2014, p. 2). The latest survey indicates 
that there are at least 88 adults and 8 saplings of E. woodburyana on 
this property (Envirosurvey 2020, p. 62, 63; see table above). A total 
of 20 seedlings also were documented during this assessment, but there 
is no information on their long-term survival.
    Finca Lozada is a private property located west of La Tinaja Tract, 
and with similar habitat to La Tinaja. In 2007, a rapid assessment of 
E. woodburyana was conducted on this property and estimated the 
subpopulation at around 300 individuals (USFWS 2017, p. 9).
    E. woodburyana also was known from the area of Pe[ntilde]ones de 
Melones in the Boquer[oacute]n Ward of Cabo Rojo. This site is a 
western extension of the Sierra Bermeja habitat, but at lower 
elevations, and it has been subject to deforestation mainly for 
agriculture and urban development (USFWS 2017, p. 14). However, there 
are no current data on the status of this population, and E. 
woodburyana is presumed extirpated from this area due to the extensive 
deforestation and development that occurred during the early 2000s. In 
addition, there is a single record of the species from the CRNWR, but 
this locality has not been surveyed recently due to lack of information 
on the specific location of the individual. However, the CRNWR is 
currently a reintroduction site for E. woodburyana.
    As previously stated, the known range of E. woodburyana increased 
when the species was located on private land (R[iacute]o Loco 
population) at the Alm[aacute]cigo Bajo Ward near the southeast 
boundary of the Sus[uacute]a Commonwealth Forest (SCF). This is the 
only population that occurs in the boundaries of the subtropical dry 
and moist forests life zones (Ewel and Whitmore 1973, pp. 25, 72). The 
latest information from this site indicates the E. woodburyana 
population is composed of at least 120 adults and 226 saplings (USFWS 
2017, p. 9; see table above). Despite the relatively disturbed nature 
of this area, a total of 211 seedlings also were documented during the 
assessment, but their current survival is unknown (USFWS 2017, p. 9). 
In fact, due to the proximity of this population to the SCF, and the 
availability and continuity of suitable habitat, we would expect to 
find additional E. woodburyana individuals along the southeastern 
portion of the SCF.
    The GCF is a natural area comprising one of the best remnants of 
subtropical dry forest vegetation in Puerto Rico (Monsegur-Rivera 2009, 
p. 3). Elevation ranges from 0 to 228 m (0 to 748 ft) above sea level 
(Murphy et al. 1995, p. 179), and the landscape includes a variable 
topography with a mixture of hills and deep canyons or ravines that 
provides adequate conditions for the occurrence of E. woodburyana. 
There are four localities within the GCF where subpopulations of this 
species have been documented: Ca[ntilde][oacute]n Hoya Honda, 
Ca[ntilde][oacute]n Murci[eacute]lagos, Ca[ntilde][oacute]n Las 
Eugenias, and Ca[ntilde][oacute]n Las Trichilias (Monsegur-Rivera 2009-
2018, pers. obs.; see table above). The currently known number of E. 
woodburyana individuals at the GCF is approximately 69 adults and 47 
saplings (USFWS 2017, p. 8). Also, 31 seedlings were found in the GCF, 
but no information is available regarding their survival (USFWS 2017, 
p. 8).
    The known range of E. woodburyana extends north to the hills along 
Montes de Barinas in a habitat similar to the GCF (Monsegur-Rivera 
2009-2018, pers. obs.). This tract of privately owned lands is located 
primarily along Indios Ward in the municipality of Guayanilla, and 
Cambalache Ward in the municipality of Yauco. Due to the marginal 
agricultural value of these areas, the forest was partially logged for 
charcoal production and ranching; fortunately, the prime habitat for 
native and endemic plant species remained undisturbed (see Unit 3 
description in 79 FR 53315, September 9, 2014, on p. 53326). The 
forested habitats at Montes de Barinas and the GCF are separated by an 
agricultural valley along the Yauco River. In fact, this geographical 
range overlaps with the designated critical habitat of Varronia 
rupicola (see Unit 3 descriptions in 79 FR 53315, September 9, 2014, on 
pp. 53326, 53339). The

[[Page 73999]]

number of individuals of E. woodburyana at this location is limited to 
one record (see table above). However, most of the habitat remains 
unexplored; thus, further surveys are necessary to determine the size 
of this population (Monsegur-Rivera 2009-2018, pers. obs.).
    Similar habitat extends east to private lands in the area of Punta 
Cucharas, along Encarnaci[oacute]n and Canas Wards between the 
municipalities of Pe[ntilde]uelas and Ponce in southern Puerto Rico. 
This area also lies within the designated critical habitat for Varronia 
rupicola (see Unit 4 descriptions in 79 FR 53315, September 9, 2014, on 
pp. 53326, 53339). Here, E. woodburyana is known from at least three 
subpopulations: Pe[ntilde]on de Ponce, Puerto Galexda, and the former 
right-of-way of the proposed gas pipeline Gasoducto Sur, with an 
estimated minimum number of 30 individuals growing mainly along 
drainages on the northwest-facing slopes with greater moisture 
retention (Monsegur-Rivera 2009-2018, pers. obs.; USFWS 2017, p. 10; 
see table above). The current forest structure and absence of exotic 
plant species suggest this habitat has remained mainly undisturbed, 
explaining the presence of rare species like Buxus vahlii (Vahl's 
boxwood, an endemic species with limited seed dispersal mechanism) in 
the area. Thus, the presence of additional subpopulations of E. 
woodburyana in this area is very likely.
    The newest record indicating the expansion of the species' known 
range is from a specimen collected at the Puerto Rico National Guard's 
Camp Santiago in the municipality of Salinas. This site is about 18.6 
miles (30 km) east from the nearest known locality in Punta Cucharas in 
a habitat composed of remnants of native dry forest. Camp Santiago 
covers an area of 12,787.6 ac (5,175 ha) and is located south of the 
central mountain range of Puerto Rico (Acevedo-Rodr[iacute]guez 2014, 
p. 15).

Population Summary

    As summarized in the table above, the known populations of E. 
woodburyana (Sierra Bermeja, Alm[aacute]cigo Bajo, Yauco, 
Gu[aacute]nica Commonwealth Forest, Montes de Barinas, Punta Cucharas 
(Ponce-Pe[ntilde]uelas) and Salinas) comprise approximately 2751 adult 
and juvenile individuals. Based on the available information indicates 
at least 808 adults and 271 saplings of E. woodburyana occur within the 
boundaries of La Tinaja Tract within the LCNWR (Sierra Bermeja 
population) (Morales-P[eacute]rez 2013, p. 4; see table above). In 
addition, the subpopulation of Finca Mar[iacute]a Luisa is composed of 
at least 692 adults and 90 saplings (Envirosurvey 2020, p. 47; see 
table above). In the case of El Conuco, the subpopulation is 88 adults 
and 8 saplings (Envirosurvey 2020, p. 51; see table above). When 
evaluating the combined data from La Tinaja Tract, Finca Mar[iacute]a 
Luisa, El Conuco, and Finca Lozada as the whole Sierra Bermeja 
population, the total number of adults (1,888) and saplings (369) 
consists of 2,257 individuals within this population. In addition, at 
least 269 seedlings (144 in La Tinaja Tract, 105 in Finca Maria Lucia, 
and 20 in El Conuco) have been recorded in this population (Morales-
P[eacute]rez 2013, p. 7; Envirosurvey 2020, pp. 47, 51). Although we 
recognize the occurrence of seedlings, we did not include them in the 
total number of E. woodburyana in this population because their fate is 
unknown due to the lack of long-term monitoring. For example, seedling 
survival can be compromised by environmental variables like droughts, 
particularly in the dry forest habitat where the species occurs. Still, 
1,888 adult plants represents a demonstrable increase compared to the 
number known at the time when the species was listed (45 individuals) 
or even at the time the recovery plan was published (150 individuals in 
1998). The presence of different size classes shows that the E. 
woodburyana population in Sierra Bermeja has been resilient to past and 
current threats (e.g., unsustainable agricultural practices, grazing, 
fires, invasive plant species) as suggested by its natural recruitment, 
reflected in the actual number of adults and saplings. Based on aerial 
images, and because the vegetation structure in neighboring lands is 
similar to areas with documented presence of E. woodburyana, we 
anticipate the species extends beyond our surveyed area in Sierra 
Bermeja. Nonetheless, E. woodburyana appears to be absent from areas 
previously deforested and degraded to grasslands dominated by exotics 
(e.g., Megathyrsus maximus (guinea grass)), and it is mainly restricted 
to those areas that provide favorable conditions for its establishment 
(e.g., drainages) (Weaver and Chinea 2003, entire; Morales-P[eacute]rez 
2013, p. 4; Monsegur-Rivera 2009-2018, pers. obs.; Envirosurvey 2020, 
pp. 46, 51). Similar to Sierra Bermeja, the Alm[aacute]cigo Bajo (also 
known as R[iacute]o Loco) population also shows evidence of natural 
recruitment and resiliency to previous habitat disturbance. The latest 
comprehensive survey of this population resulted in 346 individuals, 
corresponding to 120 adults and 226 saplings (USFWS 2017, p. 11; see 
table above). Despite the relatively disturbed nature of this area, it 
harbors a higher proportion of seedlings (38 percent) than that of 
Sierra Bermeja (10.5 percent) (USFWS 2016, p. 5; USFWS 2017, pp. 9, 
10), which most likely is the result of the moist understory conditions 
in the drainages where the species is found that provide for better 
seed germination and seedling establishment. Nonetheless, even though 
this population is the more structurally proportionate, the recruitment 
of those seedlings into the population is uncertain.
    At the GCF, the subpopulation at Ca[ntilde][oacute]n 
Murci[eacute]lagos (also known as Dinamita Trail) is relatively small 
(i.e., 27 adults and 39 saplings (USFWS 2016, p. 8). Further assessment 
of the subpopulation at Ca[ntilde][oacute]n Las Eugenias (also known as 
Cueva Trail) in the GCF found 31 adults and 8 saplings (USFWS 2016, p. 
8). A third subpopulation at Ca[ntilde][oacute]n Hoya Honda is composed 
of about 10 adult individuals (Monsegur-Rivera 2009-2018, pers. obs.). 
A total of 31 seedlings were found at Ca[ntilde][oacute]n 
Murci[eacute]lagos (29) and Ca[ntilde][oacute]n Las Eugenias (2) (USFWS 
2019, p. 8), but their current survival is unknown. The populations of 
Montes de Barinas, Punta Cucharas, and Camp Santiago are recent 
additions to the species' known range, and further systematic 
inventories are needed in order to determine the extent and trends of 
these populations. Nonetheless, these very small populations are 
characterized by little or no recruitment (e.g., Acevedo-
Rodr[iacute]guez 2014, p. 15).

Recovery

    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. Under section 4(f)(1)(B)(ii), 
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 of Endangered and 
Threatened Wildlife or the List of Endangered and Threatened Plants.
    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, they 
are not regulatory documents and do not substitute for the 
determinations and

[[Page 74000]]

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 of the criteria in a recovery plan 
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 species or a threatened species. In other cases, we may 
discover new recovery opportunities after having finalized the recovery 
plan. Parties seeking to conserve the species may use these 
opportunities instead of methods identified in the recovery plan. 
Likewise, information on the species that was not known at the time the 
recovery plan was finalized may become available later. The new 
information may change the extent that criteria need to be met for 
recognizing recovery of the species. The recovery of species is a 
dynamic process requiring adaptive management that may, or may not, 
fully follow 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.

Recovery Criteria

    The recovery plan for this species did not provide downlisting 
criteria (USFWS 1998, entire). In 2019, the Service published an 
amendment to the original recovery plan, which amended the recovery 
criteria of this species by establishing that E. woodburyana will be 
considered for delisting when the following criteria are met (USFWS 
2019, p. 4): (1) Threat reduction and management activities are 
implemented to a degree that the species will remain viable into the 
foreseeable future; (2) existing natural populations of E. woodburyana 
(6 populations) show a stable or increasing trend, as evidenced by 
natural recruitment and multiple age classes; and (3) within the 
historical range, at least three new populations of E. woodburyana are 
established on lands protected by a conservation mechanism that show a 
stable or increasing trend, evidenced by natural recruitment and 
multiple age classes. We apply our current understanding of the 
species' range, biology, and threats to these delisting criteria to 
support our rationale for why downlisting E. woodburyana is 
appropriate.
    Recovery Criteria 1: Threat reduction and management activities are 
implemented to a degree that the species will remain viable into the 
foreseeable future.
    Throughout the known range, the species still faces a wide variety 
of threats; however, some locations show improvement in management and 
protection activities are ongoing by a variety of partners. Overall, 
about 47 percent of the currently known E. woodburyana individuals 
occur within lands managed for conservation. As previously stated, the 
GCF is managed for conservation by PRDNER as recommended by the Master 
Plan for the Commonwealth Forests of Puerto Rico (DRN 1976, p. 56). In 
addition, E. woodburyana is currently listed as critically endangered 
under PRDNER regulations and was most recently evaluated in 2004 
(PRDNER 2005, p. 52). Consequently, that agency reviews all proposed 
actions for the GCF that may adversely affect E. woodburyana and other 
listed species and their habitats within the GCF. There is evidence of 
impacts on seedlings (e.g., uprooting, covered by sediment) of other 
species that share habitat with E. woodburyana at the GCF due to runoff 
and sediments resulting from hurricane Mar[iacute]a in September 2017 
(Monsegur-Rivera 2018, pers. obs.). Hence, seedlings of E. woodburyana 
can also suffer these same impacts. Moreover, although this population 
may not face the same threats as in Sierra Bermeja because the habitat 
is protected, its expansion outside drainages may be limited by the dry 
climate of the forest characteristic of dry forests with recurrent 
disturbance (e.g., Weaver and Chinea 2003, p. 281). However, during a 
rapid assessment of E. woodburyana conducted at the GCF, no changes in 
habitat or evidence of activities affecting this species were observed 
(USFWS 2017, p. 8).
    As for LCNWR, in 1996, the Service acquired La Tinaja Tract, a 263-
ac (106.4-ha) tract in the foothills of Sierra Bermeja (USFWS 2011a, 
pp. 23, 26). This land is now protected and managed for the 
conservation of natural resources, with a comprehensive conservation 
plan that includes measures for the protection and recovery of 
endangered and threatened species, including E. woodburyana (USFWS 
2011a, p. 35; Service 2011b, p. 47). As part of an existing Service 
cooperative recovery initiative project, a new fence was built along 
the upper southeast and southwest boundaries of La Tinaja Tract to 
reduce habitat modification from cattle grazing (mostly trampling, 
which damages the species, erodes soil, and opens up space to invasive 
plant species), and to allow the recovery of native vegetation.
    Recovery actions like land acquisition and the establishment of 
conservation easements also have been undertaken to prevent habitat 
loss and degradation, and potential population decline. For example, 
PLN has two natural protected areas in Sierra Bermeja: the conservation 
easement Finca Mar[iacute]a Luisa (755.6 ac (305.8 ha)), and the 
Natural Protected Area El Conuco (37.4 ac (15.1 ha)) (PLN 2013, 85 pp.; 
PLN 2014, 58 pp.). As discussed above, both properties harbor 
subpopulations of E. woodburyana (PLN 2014, p. 13; Envirosurvey 2020, 
p. 44). Habitat management practices implemented at El Conuco include 
cattle exclusion, firebreaks, and a reforestation plan, providing 
suitable conditions for natural recruitment and the expansion of the E. 
woodburyana population (PLN 2013, 85 pp.). However, in the case of the 
Finca Mar[iacute]a Luisa easement, the conservation practices included 
in the management plan developed by PLN for this property have not yet 
been implemented.
    Information gathered post-listing indicated that the known range of 
E. woodburyana has expanded to new localities: Montes de Barinas, 
Alm[aacute]cigo Bajo, Punta Cucharas, and the Puerto Rico National 
Guard's Camp Santiago in the municipality of Salinas. These areas 
collectively comprise approximately 14 percent of the currently known 
number of adults and saplings of E. woodburyana. However, all these 
locations are subject to habitat destruction or modification as 
described below under Summary of Biological Status and Threats, making 
the species in these areas vulnerable to habitat encroachment or even 
extirpation. For instance, Alm[aacute]cigo Bajo is relatively disturbed 
by cattle grazing and fence post harvesting.
    Therefore, threat reduction and management activities at Finca 
Mar[iacute]a Luisa or Finca Lozada, Montes de Barinas, Alm[aacute]cigo 
Bajo, Punta Cucharas, and the Puerto Rico National Guard's Camp 
Santiago have not been implemented to a degree that these E. 
woodburyana subpopulations are secure in the long term. We continue to 
work with partners to provide beneficial management practices (e.g., 
firebreaks, fencing, reforestation) throughout the species' range, as 
well as to monitor E.

[[Page 74001]]

woodburyana and survey suitable habitat for new occurrences of this 
species. Further, we are also looking for opportunities to implement 
best management practices with private landowners to enhance habitat to 
establish additional E. woodburyana subpopulations. We consider 
recovery criterion 1 to have been partially met. Recovery criterion 2: 
existing natural populations of E. woodburyana show a stable or 
increasing trend.
    We are seeing significant progress in achieving this criterion, but 
it has not yet been fully met. The presence of different size classes 
in three (i.e., Sierra Bermeja, Alm[aacute]cigo Bajo, and GCF) out of 
the six existing E. woodburyana populations suggests a certain degree 
of stability, and that the species has been resilient to past and 
current threats at these sites. However, additional indicators related 
to population structure are still needed to indicate long-term 
stability.
    For example, Sierra Bermeja is the largest known population, with 
2,526 individuals, including seedlings, but the proportion of adults, 
saplings, and seedlings is 75, 14.5, and 10.5 percent, respectively. 
Despite being the largest population, its structure is skewed towards 
adult individuals, with low frequency of saplings and seedlings 
(Envirosurvey 2020, pp. 51-52). This leads us to expect reduced 
recruitment, which can have negative implications for the long-term 
viability of the population and the species. Additionally, microhabitat 
conditions make it unlikely the population can expand to adjacent 
native forest. In fact, recruitment is limited to the close proximity 
of parental trees, which is apparently driven by gravity in the 
drainages where the species is present (Morales-P[eacute]rez, 2013, p. 
4). In an effort to improve the conditions of existing populations of 
E. woodburyana, the Service, PRDNER, and PLN have joint efforts to 
enhance or augment the natural population within Sierra Bermeja (i.e., 
La Tinaja Tract and neighboring private lands). While we estimate that 
a timeframe of 10 to 15 years is needed for the planted individuals to 
reach reproductive size, this should increase the self-sustainability 
of the species and will help it withstand stochastic events (e.g., 
severe droughts). Similar efforts are needed in other areas (e.g., GCF, 
Montes de Barinas, Punta Cucharas, and Alm[aacute]cigo Bajo) to further 
improve the species' status and secure its representation rangewide. At 
present, however, the GCF E. woodburyana population appears stable 
(USFWS 2017, p. 8).
    Similar to Sierra Bermeja, the E. woodburyana population in the GCF 
is mostly found in drainages dominated by native forest vegetation, 
which provides adequate habitat conditions (i.e., humidity) for the 
establishment of seedlings and saplings. However, there is little 
information about the ability of E. woodburyana to survive stochastic 
events such as landslides and heavy sediment runoff, particularly in 
these drainages.
    The population at Alm[aacute]cigo Bajo appears to be relatively 
large and stable, despite cattle grazing and fence post harvesting, 
with multiple age classes resulting from natural recruitment. This may 
be the result of the mesic understory conditions due to its 
geographical location in the transition between the subtropical dry and 
moist forest life zones (Ewel and Whitmore 1973, pp. 25, 72). The 
proportion of seedlings to adults observed in Alm[aacute]cigo Bajo (38 
percent) is higher when compared to the Sierra Bermeja (10.5 percent) 
and GCF (21 percent) populations. In addition, the proximity of this 
population to suitable and protected habitat in the SCF provides 
favorable conditions for its natural expansion or for planting 
additional individuals (population enhancement) to assist its 
expansion. As mentioned previously, we are seeing significant progress 
in achieving this criterion, but it has not yet been fully met.
    Recovery criterion 3: at least three new populations of E. 
woodburyana are established on lands protected by a conservation 
mechanism that show a stable or increasing trend
    Efforts for this criterion are ongoing. Currently, the Service and 
other partners have initiated the establishment of a new E. woodburyana 
population at the CRNWR, where 191 E. woodburyana individuals had been 
planted by 2019 (Envirosurvey 2020, p. 17). This habitat is forested 
with native vegetation, has low intrusion of exotic grasses (e.g., 
Megathyrsus maximus), and provides moisture that would facilitate the 
establishment of seedlings. Also, the CRNWR maintains firebreaks along 
the boundaries of the refuge, which help protect this site from human-
induced fires. Two years of monitoring after planting have shown a 
survival rate greater than 96 percent (Envirosurvey 2020, p. 17), 
demonstrating that the proper selection of reintroduction sites is 
critical to maximize the survival of planted material. Further efforts 
are needed to establish two new self-sustainable populations within the 
species' range. Therefore, we have not met this recovery criterion.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR part 424 regarding how we add, remove, and reclassify 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019). On the 
same day, 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 (84 FR 44753; August 27, 2019). We collectively 
refer to these as 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. 
Subsequently, 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 as of September 21, 2022.
    Due to the continued uncertainty resulting from the ongoing 
litigation, we also undertook an analysis of whether the proposal would 
be different if we were to apply the pre-2019 regulations. That 
analysis, which we describe in a separate memo in the decisional file 
and have posted on https://www.regulations.gov, concludes that we would 
have reached the same proposal if we had applied the pre-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, and a

[[Page 74002]]

``threatened species'' as a species that is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. The Act requires that we determine 
whether any species is an endangered species or a threatened species 
because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects. We consider these same five 
factors in downlisting a species from endangered to threatened (50 CFR 
424.11(c)).
    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.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Services can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions. It is not always possible or 
necessary to define foreseeable future as a particular number of years. 
Analysis of the foreseeable future uses the best scientific and 
commercial data available and should consider the timeframes applicable 
to the relevant threats and to the species' likely responses to those 
threats in view of its life-history characteristics. Data that are 
typically relevant to assessing the species' biological response 
include species-specific factors such as lifespan, reproductive rates 
or productivity, certain behaviors, and other demographic factors.

Analytical Framework

    The 5-year review (USFWS 2017) 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 
information gathered since that time, including information provided in 
the proposed rule published on October 21, 2020 (85 FR 66906). The 5-
year review can be found at Docket No. FWS-R4-ES-2019-0070 on https://www.regulations.gov.

Summary of Biological Status and Threats

Habitat Loss

    Habitat destruction and modification were identified as factors 
affecting the continued existence of E. woodburyana when it was listed 
in 1994 (59 FR 46715; September 9, 1994). The area of Pe[ntilde]ones de 
Melones in Cabo Rojo is the only historical site for which the Service 
has strong evidence that E. woodburyana was extirpated. This site was 
estimated to have 20 individuals (Breckon 1996, unpublished data) and 
was impacted by residential and tourist development, and by 
agricultural practices such as livestock grazing (USFWS 2017, p. 18). 
While the species now occupies significantly more area and localities 
than were known at the time of listing and 73 percent of these sites 
occur in protected areas, it still faces the threat of habitat 
destruction and modification in several populations as described below 
and in our October 21, 2020, proposed rule (85 FR 66906).
    As previously discussed, the Sierra Bermeja range comprises the 
core known natural population of E. woodburyana, with about 82 percent 
of the currently known adults and saplings found in this area. Most of 
this mountain range was zoned by the Puerto Rico Planning Board as a 
District of Conservation of Resources and Rustic Soil Specially 
Protected, which has specific restrictions on development activities in 
order to protect the natural resources of the area (Junta de 
Planificaci[oacute]n Puerto Rico (JPPR) 2009, pp. 151-153). This zoning 
designation allows agricultural activities and construction of 
residential development (JPPR 2009, p. 151; JPPR 2015, pp. 118-129). 
Therefore, landowners continue to affect the habitat through activities 
like cutting new access roads on their properties (Pacheco and 
Monsegur-Rivera 2017, pers. obs.).
    In addition, deforestation for agricultural practices (e.g., 
conversion of forested habitat to pasturelands) has led to invasion of 
exotic species like guinea grass (Megathyrsus maximus), thus promoting 
favorable conditions for wildfires that further adversely affect E. 
woodburyana habitat (Weaver and Chinea 2003, p. 281). Also, cattle, 
horses, and goats graze all over the Sierra Bermeja range, causing 
habitat modification by making trails while foraging on the slopes, 
which also increases erosion (Morales-P[eacute]rez 2013, p. 4; 
Envirosurvey 2016, p. 9; Lange and Possley 2017, p. 4; Envirosurvey 
2020, p. 49). Cattle grazing has resulted in direct impacts to E. 
woodburyana due to predation and trampling of seedlings (Lange and 
Possley 2017, p. 4). In fact, cattle trails were observed through a 
patch of E. woodburyana at Finca Mar[iacute]a Luisa, and at La Tinaja 
Tract, horses trampled several planted individuals of the species 
(Morales-P[eacute]rez 2013, p. 7; Envirosurvey 2016, p. 8). Such 
impacts (e.g., trampling and predation) from

[[Page 74003]]

livestock are likely one of the reasons for the low number of seedlings 
of E. woodburyana in Sierra Bermeja (Envirosurvey 2020, p. 49).
    Currently, two of the four subpopulations in Sierra Bermeja are 
protected because they occur on lands managed for conservation (i.e., 
La Tinaja Tract and El Conuco), representing approximately 43 percent 
of all known adults and saplings. The remaining two subpopulations 
(i.e., Finca Mar[iacute]a Luisa and Finca Lozada) represent about 39 
percent of all known adults and saplings, and are subject to habitat 
destruction and modification for agricultural practices, which most 
likely have eliminated some E. woodburyana individuals (USFWS 2017, p. 
18). Based on a comparison of a recent aerial photograph (2019) of this 
area, habitat modification through bulldozing has occurred within the 
area identified for conservation in the conservation easement of Finca 
Mar[iacute]a Luisa (Monsegur-Rivera 2019, pers. obs.; PLN 2013, p. 56). 
In addition to direct impacts to the species, bulldozing results in 
habitat fragmentation and degradation that change the microhabitat 
conditions needed for the successful recruitment of E. woodburyana. It 
also facilitates the invasion of exotic plant species such as guinea 
grass (Megathyrsus maximus) that compete with E. woodburyana and 
promote favorable conditions for wildfires.
    The E. woodburyana populations at Punta Cucharas, Montes de 
Barinas, and Alm[aacute]cigo Bajo occur in privately owned lands that 
are vulnerable to habitat modification. For example, the habitat in the 
municipalities of Pe[ntilde]uelas and Ponce, including the area of 
Punta Cucharas, has been fragmented by urban development (see 79 FR 
53303, September 9, 2014). In this area, the species occurs in at least 
three forested drainages located just north and close to highway PR 2, 
or adjacent to the Puerto Rico Electric and Power Authority power line 
right-of-way. Urban development has expanded north of highway PR 2, 
modifying the suitable habitat for the species (USFWS 2017, p. 20). On 
October 4, 2011, areas with E. woodburyana individuals at Puerto 
Galexda (Ponce-Pe[ntilde]uelas) were bulldozed, and some individuals 
were removed (USFWS 2011c, entire; USFWS 2017, p. 20). The Service 
observed that sediment runoff from adjacent urban development was 
covering the bottom of the drainage and likely precluding the 
recruitment of E. woodburyana seedlings as the sediment buries the 
small plants and seeds (USFWS 2011c, p. 3).
    In Montes de Barinas, E. woodburyana occurs on private properties 
subject to urban development, resulting in native dry forest 
encroachment, and thus isolation and possible extirpation of E. 
woodburyana individuals. These areas also are threatened by 
deforestation due to cattle grazing and the extraction of fence posts 
(Rom[aacute]n-Guzm[aacute]n 2006, pp. 1-2; Monsegur-Rivera 2005, pers. 
obs.; see 79 FR 53303, September 9, 2014).
    The E. woodburyana population at Alm[aacute]cigo Bajo Ward in Yauco 
is located in a small forested drainage in a parcel of land used for 
cattle grazing, and adjacent to an abandoned quarry (USFWS 2017, p. 
19), which could be reactivated. Approximately 80 percent of the 
property was cleared of vegetation, and its surroundings are under 
pressure by agricultural and urban development (USFWS 2017, p. 19). 
Habitat modification and adverse impacts to E. woodburyana individuals 
also have been documented as a result of fence post extraction from 
this site (Monsegur-Rivera 2011-2017, pers. obs.). In 2008, 72 
seedlings and saplings of E. woodburyana were found in a human-made 
ditch located approximately 45 m (148 ft) downhill of the 
Alm[aacute]cigo Bajo population (USFWS 2017, p. 19). A total of 46 
saplings from this area were transplanted into the SCF to avoid being 
impacted by a project of the Puerto Rico Aqueduct and Sewage Authority 
(USFWS 2017, p. 11). The latest account of the transplanting effort 
indicates that only 11 individuals survived, but they appear to be in 
good condition (USFWS 2017, p. 11).

Human-Induced Fires

    Human-induced fires have been documented in E. woodburyana habitat, 
and were considered a threat to the species when listed (59 FR 46715, 
September 9, 1994; USFWS 2017, p. 23). Fires are not a natural event in 
the subtropical dry forests in Puerto Rico, and the native vegetation 
in the Caribbean is not adapted to this type of disturbance (Brandeis 
and Woodall 2008, p. 557; Santiago-Garc[iacute]a et al. 2008, p. 604). 
Human-induced fires could modify the landscape by promoting the 
establishment of exotic trees and grasses, and by diminishing the seed 
bank of native species (Brandeis and Woodall 2008, p. 557). For 
example, the exotic guinea grass is well-adapted to fires and typically 
colonizes areas previously covered by native vegetation before a fire 
event. Furthermore, the presence of guinea grass and other grass 
species increases the amount of fuel for, and hence the intensity of, 
the fires. Seedling mortality after fires is related to the differences 
in fuel loads and different fire intensities (Santiago-Garc[iacute]a et 
al. 2008, p. 607).
    E. woodburyana populations occur on the driest region of Puerto 
Rico where fires are sometimes ignited accidentally or deliberately, 
particularly during the dry season. Human-induced fires are a current 
threat to this and other native vegetation in Sierra Bermeja, 
Alm[aacute]cigo Bajo, Punta Cucharas, and Camp Santiago in Salinas 
(Envirosurvey 2020, p. 52). In May 2019, a large wildfire extended from 
the southern lowlands of Sierra Bermeja to the upper forested hills 
into El Conuco, affecting an undetermined number of individuals of E. 
woodburyana and encroaching on suitable habitat for the species 
(Envirosurvey 2020, p. 52). In La Tinaja Tract, LCNWR staff maintains 
firebreaks on the lower slopes, reducing the chance of fires reaching 
the upper part of the tract.
    The recently discovered site at Camp Santiago in Salinas is owned 
by the Puerto Rico National Guard (Acevedo-Rodr[iacute]guez 2014, p. 
15). The areas covered by vegetation at this camp are frequently 
impacted by human-induced fires, which may compromise the survival of 
E. woodburyana (Acevedo-Rodr[iacute]guez 2014, p. 15). According to 
Acevedo-Rodr[iacute]guez (2014, p. 2), the predominant vegetation type 
is grasslands dominated by guinea grass, which are maintained by human-
induced fires and grazing animals.
    Fires also have occurred in E. woodburyana habitat in Punta 
Cucharas, between the municipalities of Ponce and Pe[ntilde]uelas, 
where habitat disturbance due to urban development and the expansion of 
highway PR 2 has promoted the establishment of guinea grass (Monsegur-
Rivera 2011 and 2013, pers. obs.). Camp Santiago is another area where 
fires, which occur near E. woodburyana on a yearly basis (Monsegur-
Rivera 2009-2018, pers. obs.), have been identified as a threat to the 
species due to anthropogenic disturbance (Acevedo-Rodr[iacute]guez 
2014, p. 15). At the GCF, E. woodburyana seems to be protected from 
fires, as the species mostly occurs in mesic (humid) drainages 
dominated by native forested vegetation where the risk of fires is low 
(Monsegur-Rivera 2011, pers. obs.).

Competition From Nonnative Plant Species

    Nonnative plant species are another threat to E. woodburyana. Some 
nonnative plants can be very aggressive and compete with native species 
for sunlight, nutrients, water, and ground cover (see 79 FR 53303, 
September 9, 2014, at pp. 53309-53310). Examples

[[Page 74004]]

include the exotic tree Leucaena leucocephala, which can remain as a 
dominant canopy species for at least 80 years (Wolfe 2009, p. 2), and 
guinea grass, which colonizes habitat and suppresses native vegetation 
(Rojas-Sandoval and Mel[eacute]ndez-Ackerman 2013, p. 489). Both L. 
leucocephala and guinea grass are fire-adapted species that have widely 
colonized E. woodburyana habitat and outcompete native vegetation 
(Monsegur-Rivera 2018, pers. obs.; Envirosurvey 2020, p. 46).
    In addition, some exotic plants create favorable conditions for 
fires, as in Camp Santiago in Salinas, where degraded habitat is 
dominated by guinea grass, threatening E. woodburyana (Acevedo-
Rodr[iacute]guez 2014, p. 15). As demonstrated by the research 
conducted in the GCF, restoring degraded habitat to native vegetation 
may require decades, and, in some cases, such damage may be 
irreversible (Wolfe 2009, p. 2). Although the core Eugenia woodburyana 
individuals are found in protected areas dominated by native forest 
vegetation rather than invasive species, the threat of invasive or 
exotic plant species intruding into E. woodburyana habitat persists due 
to the vulnerability of the area to fires as explained above.
    Based on the above information, we believe that human-induced fires 
and invasive plants are a threat to E. woodburyana, particularly to 
those populations extending into private lands where habitat 
modifications and human-induced fires commonly occur.
    In summary, at present, the E. woodburyana population at the GCF 
occurs within an area managed for conservation, and thus it is not 
subject to habitat destruction and modification. The Sierra Bermeja 
population is the largest and is partially protected as some of the 
individuals occur either on Federal (i.e., La Tinja Tract-LCNWR) or 
private lands managed for conservation (i.e., El Conuco). The remaining 
four populations (i.e., Alm[aacute]cigo Bajo, Montes de Barinas, Punta 
Cucharas, and Camp Santiago) occur on private and State lands currently 
threatened by habitat destruction and modification (e.g., urban 
development; vegetation clearing; road construction; grazing and 
trampling by cattle, horses, and goats; and military maneuvers at Camp 
Santiago). Losing these populations would result in a reduction of the 
genetic representation and redundancy of the species.
    In addition, human-induced fires and invasive species are 
considered as further stressors to the viability of E. woodburyana. 
Human-induced fires have been documented in E. woodburyana habitat, 
particularly on private lands where no fire management practices are 
implemented and have the potential to adversely affect the species. 
Invasive species can preclude the establishment of E. woodburyana as 
they are very successful competing for sunlight, nutrients, water, and 
ground cover. Establishment of invasive species is facilitated by 
disturbances caused by fires and habitat modification. Fortunately, 
there are E. woodburyana subpopulations in protected areas dominated by 
native forest vegetation that does not facilitate the invasion of 
exotic plant species. However, in lands where habitat modification 
activities do occur, invasive plant species colonize and make the 
habitat unsuitable for E. woodburyana, and also promote conditions for 
fires.

Existing Regulatory Mechanisms

    In the final listing rule (59 FR 46715; September 9, 1994), we 
identified the inadequacy of existing regulatory mechanisms as one of 
the factors affecting the continued existence of E. woodburyana. At 
that time, the species had no legal protection because it had not been 
included in Puerto Rico's list of protected species. Once E. 
woodburyana was federally listed, it triggered the addition of the 
species as endangered to the Commonwealth's list of protected species 
(DRNA 2004, p. 52). Such Commonwealth regulations are expected to 
continue in place and protect the species despite its reclassification 
to threatened. If the territory would like to remove the species, it 
would need to go through a review process by the agency.
    Presently, E. woodburyana is legally protected under Commonwealth's 
Law No. 241-1999 (see title 12 of the Laws of Puerto Rico at section 
107 et seq. (12 L.P.R.A. sec. 107 et seq.)), known as Nueva Ley de Vida 
Silvestre de Puerto Rico (New Wildlife Law of Puerto Rico). The purpose 
of this law is to protect, conserve, and enhance both native and 
migratory wildlife species; declare property of Puerto Rico all 
wildlife species within its jurisdiction; and regulate 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 Reglamento para 
Regir el Manejo de las Especies Vulnerables y en Peligro de 
Extinci[oacute]n en el Estado Libre Asociado de Puerto Rico (Regulation 
6766: To govern the management of threatened and endangered species in 
the Commonwealth of Puerto Rico). Article 2.06 of Regulation 6766 
prohibits collecting, cutting, and removing, among other activities, 
listed plant individuals within the jurisdiction of Puerto Rico (DRNA 
2004, p. 11). The provisions of Law No. 241-1999 and Regulation 6766 
extend to private lands and will continue protecting E. woodburyana 
whether or not the species has protections under the Act.
    As for the individuals found at the GCF, this area is protected 
under Law No. 133-1975 (12 L.P.R.A. sec. 191 et seq.), known as Ley de 
Bosques de Puerto Rico (Puerto Rico Forests' Law), as amended in 2000. 
Section 8(a) of this law prohibits cutting down, killing, bud pruning, 
uprooting, or otherwise injuring or deteriorating any tree, forest 
product, or vegetation within a Commonwealth Forest (12 L.P.R.A. sec. 
198(a)) and thus reduces potential impacts to native vegetation 
including Eugenia woodburyana. The PRDNER also identified the GCF as a 
Critical Wildlife Area (CWA). The CWA designation constitutes a special 
recognition by the Commonwealth 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 a project's endorsements or permit 
approvals (PRDNER 2005, pp. 211-216).
    The LCNWR and CRNWR are managed in accordance with the National 
Wildlife Refuge Improvement Act of 1997 (Pub. L. 105-57). The 
collection of plants on National Wildlife Refuges is prohibited under 
50 CFR 27.51, and there are prohibitions concerning plants federally 
listed as endangered or threatened that occur on areas under Federal 
jurisdiction, as well as on other areas, in section 9 of the Act and 
implementing regulations. In addition, any habitat management or action 
(e.g., research) within a National Wildlife Refuge requires a Special 
Use Permit in coordination with the Refuge manager, thus, reducing 
potential impacts to E. woodburyana. Additionally, the comprehensive 
conservation plans for LCNWR and CRNWR include measures for the 
protection and recovery of endangered and threatened species, including 
E. woodburyana, on these refuges (USFWS 2011a, p. 35; USFWS 2011b, p. 
47).
    Although there are legal mechanisms in place for the protection of 
E. woodburyana (e.g., laws, regulations, zoning), sometimes the 
enforcement of such mechanisms on private lands is challenging (e.g., 
USFWS 2019, pp. 29-31). For example, accidental damage (e.g., by 
cutting, pruning, or mowing) or even extirpation of E. woodburyana

[[Page 74005]]

individuals may occur because private landowners may not be aware that 
it is a protected species (e.g., fence posts harvesting in 
Alm[aacute]cigo Bajo (USFWS 2016, p. 8)). Another form of impact is 
from agriculture; for example, zoning may restrict subdivision of lots 
and dense urbanization in some areas where the species is present, but 
may allow agricultural practices that can result in habitat 
modification that can affect E. woodburyana. On the other hand, the 
known range of E. woodburyana has increased since the time of listing. 
The species has been recorded in new areas subject to agriculture and 
urban development (USFWS 2016, entire; USFWS 2017, pp. 18-21), and 
despite the existence of regulatory mechanisms, habitat modification 
has occurred in these newly documented areas (e.g., Almacigo Bajo site; 
USFWS 2017, pp. 18-21).
    Outside of the protections provided by the Act, as described above, 
the species is protected from collection and provided management 
considerations by the National Wildlife Refuge Improvement Act of 1997 
on two refuges. In addition, the Commonwealth of Puerto Rico legally 
protects E. woodburyana as an endangered species, including protections 
to its habitat, through Commonwealth Law No. 241-1999 and Regulation 
6766. When E. woodburyana is reclassified to threatened (see DATES, 
above), we do not expect it to be removed from legal protection by the 
Commonwealth. Although these protections extend to both public and 
private lands, protection of this species on private land is 
challenging. Habitat that occurs on private land is subject to 
pressures from grazing and development. Accidental damage or 
extirpation of individuals has occurred due to lack of awareness by 
private landowners or other parties on the property (Rom[aacute]n-
Guzm[aacute]n 2006, pp. 25-33; USFWS 2016, entire). Habitat 
modifications continue to occur on private lands, which can increase 
the chances of sediment runoff and human-induced fires (and subsequent 
spread of nonnative vegetation). In short, this plant is now more 
abundant and widely distributed, and occurs largely on conservation 
land, so effects due to inadequacy of regulatory mechanisms have been 
reduced. However, the occurrences of this species on private land 
continue to need enforcement, attention, and increased outreach to 
explain the species' importance.

Small Population Size

    At the time of listing (59 FR 46715; September 9, 1994), the 
Service considered small population size as a threat affecting the 
continued survival of E. woodburyana based on the species' limited 
distribution (i.e., only three isolated populations known at that time) 
coupled with low number of individuals (i.e., only 45 individuals 
throughout the species' range). Information about the distribution and 
abundance gathered since this species was listed shows that E. 
woodburyana is more abundant and widely distributed than previously 
thought (USFWS 2017, entire). Thus, we no longer consider limited 
distribution and low population numbers as threats to this species. 
Even though some of the known populations are small (e.g., Montes de 
Barinas), there are other populations with large numbers of individuals 
(e.g., Sierra Bermeja), and that show recruitment (e.g., 
Alm[aacute]cigo Bajo), which with proper management will allow the 
species to persist into the future even if one of the very small 
populations is adversely affected.

Hurricanes and Other Weather Events

    The islands of the Caribbean are frequently affected by hurricanes. 
Puerto Rico has been hit by four major hurricanes in recent years: Hugo 
(1989), Hortense (1996), Georges (1998), and Mar[iacute]a (2017). 
Successional responses to hurricanes can influence the structure and 
composition of plant communities in the Caribbean islands (Van Bloem et 
al. 2003, p. 137; Van Bloem et al. 2005, p. 572; Van Bloem et al. 2006, 
p. 517; Lugo 2000, p. 245). Examples of the visible effects of 
hurricanes on the ecosystem include massive defoliation, snapped and 
wind-thrown trees, large debris accumulations, landslides, debris 
flows, and altered stream channels (Lugo 2008, p. 368). Hurricanes can 
produce sudden and massive tree mortality, which varies among species, 
but average about 41.5 percent (Lugo 2000, p. 245). Hence, small 
populations of E. woodburyana may be severely impacted by hurricanes, 
sometimes resulting in extirpation of relic individuals. The recent 
hurricane Mar[iacute]a caused defoliation and uprooting of some E. 
woodburyana individuals planted at the CRNWR, and even though none have 
died, they are stressed due to the damage to the root system (Monsegur-
Rivera, Service 2017, pers. obs.).
    As an endemic to the Caribbean, E. woodburyana is adapted to 
tropical storms and the prevailing environmental conditions. However, 
the number of populations, and the small numbers of individuals in some 
populations (e.g., Camp Santiago and Montes de Barinas), make some 
populations and thereby the species vulnerable to stochastic and 
catastrophic events such as hurricanes. Based on observations of the 
damage caused by hurricane Mar[iacute]a, small E. woodburyana 
populations, such as those of the GCF, Montes de Barinas, Punta 
Cucharas, and Camp Santiago, may be extirpated if any of those areas is 
directly impacted by a category 4 or 5 hurricane that will cause high 
levels of wind, knocking over trees or uprooting them leading to stress 
or possible death. Therefore, we believe hurricanes can be a threat to 
E. woodburyana, particularly to small populations dominated by adult 
reproductive individuals, because intensity and frequency of these 
natural disturbances is expected to increase due to climate change (see 
Climate Change, below).
    Landslides and sediment runoff associated with atmospheric 
disturbances may also pose a threat to E. woodburyana, particularly in 
Sierra Bermeja, GCF, Punta Cucharas, and Alm[aacute]cigo Bajo (Morales-
P[eacute]rez 2013, pp. 5, 12). At these locations, adult mature 
individuals, as well as seedlings and saplings, are mostly found on 
steeper slopes or along the bottom of deep natural drainages (USFWS 
2016, p. 5). High rainfall associated with tropical storms and 
hurricanes may cause floods that, in combination with steep topography 
and highly erodible soils, may lead to mass wasting events (e.g., land, 
mud, and debris slides; Lugo 2008, p. 368). In fact, in September 2009, 
three landslides resulting from heavy rains were recorded in Sierra 
Bermeja adjacent to the area where E. woodburyana occurs (USFWS 2010, 
p. 16). Moreover, surveyors observed that runoff and erosion exposed 
the roots of E. woodburyana in Sierra Bermeja (Envirosurvey 2020, p. 
51). As mentioned above, the Service has evidence of impacts to 
seedling recruitment by sediment runoff from adjacent urban development 
in the area of Punta Cucharas in Ponce (USFWS 2011c, p. 2). Events like 
this may be exacerbated by severe rains associated with hurricanes or 
storms. Recent observations identified uprooted and buried seedlings of 
the endangered palo de rosa (Ottoschulzia rhodoxylon) and bariaco 
(Trichilia triacantha), which share habitat with E. woodburyana in the 
GCF, due to sediment runoff and flooding events associated with 
hurricane Mar[iacute]a on September 20, 2017 (Monsegur-Rivera 2018, 
pers. obs.). Similar observations have been recorded from the area of 
Punta Cucharas, where seedlings of bariaco were adversely affected by 
sediment runoff (USFWS

[[Page 74006]]

2011c, entire). There is little information about E. woodburyana's 
ability to survive stochastic events like landslides and heavy sediment 
runoff. However, the small size of some populations and the seedling 
establishment on moist drainages mean that events such as those 
mentioned may have adverse impacts on this species.

Climate Change

    The Intergovernmental Panel on Climate Change (IPCC) concluded that 
evidence of 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 a higher 
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 consequences to the species' viability and its habitat that 
arise from changes in environmental conditions associated with various 
aspects of climate change. Based on what is known about the 
distribution of E. woodburyana and the habitat where it is more 
abundant (i.e., steep slopes and bottom of deep natural drainages), we 
believe climate change can have adverse effects on this species, 
particularly in its natural recruitment, and hence the expansion of 
populations.
    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 (Henareh 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). Under all these scenarios, 
emissions increase, precipitation declines, and temperature and total 
dry days increase, resulting in extreme drought conditions that would 
result in the conversion of sub-tropical dry forest into dry and very 
dry forest (Henareh Khalyani et al. 2016, p. 280).
    There is high uncertainty in precipitation modeling for the region, 
as Caribbean rainfall is influenced by complexities in large-scale 
atmosphere and ocean dynamics (Henareh Khalyani et al. 2016, p. 275). 
Modeling shows dramatic changes to Puerto Rico through 2100; the 
divergence in these projections increases dramatically after mid-
century, making projections beyond 20 to 30 years more uncertain 
(Henareh Khalyani et al. 2016, p. 275). By mid-21st century, Puerto 
Rico is predicted to be subjected to a decrease in rainfall, along with 
increase drought intensity (Henareh Khalyani et al. 2016, p. 265; U.S. 
Global Change Research Program (USGCRP) 2018, p. 20:820). As 
precipitation decreases influenced by warming, it 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). There are 
indications that the western region of Puerto Rico, where E. 
woodburyana occurs, has experienced negative trends in annual rainfall 
(PRCCC 2013, p. 7).
    Downscaled general circulation models (GCMs) developed by Henareh 
Khalyani et al. (2016, p. 275) predicted dramatic shifts in the life 
zones of Puerto Rico with potential loss of subtropical rain, moist, 
and wet forest, and the appearance of tropical dry and very dry forests 
are anticipated. This shift in life zones may result in potential 
species migration to higher elevations; however, the extent of the 
species' ability to redistribute will depend on dispersal capability 
and forest connectivity (Henareh Khalyani et al. 2019, p. 11). 
Subtropical dry forests are already subject to water deficit for 10 
months of the year and are expected to become drier in the future; 
particularly in the Caribbean, where oceans have a largest influence on 
local precipitation, climate models consistently project significant 
drying by the middle of the century (Miller and Lugo 2009, p. 86; 
USGCRP 2018, p. 20:820). For example, droughts may compromise seedling 
recruitment by reducing seed viability and increasing seedling 
mortality. We have already seen a low proportion of E. woodburyana 
seedlings and saplings at lower elevations and outside drainages in 
areas like Sierra Bermeja and Punta Cucharas that are probably 
associated with anthropogenic impacts (e.g., human-induced fires, 
habitat modification). The inability of E. woodburyana to migrate to 
wetter habitats due to low seed dispersal capability and the lack of 
forest connectivity would reduce its survival.
    Prolonged droughts can exacerbate those anthropogenic impacts by 
changing the microclimate conditions (i.e., temperature and soil 
moisture retention) favorable for the establishment of seedlings, thus 
reducing the recruitment of E. woodburyana. In Alm[aacute]cigo Bajo, 
where the Service has recorded a high proportion of seedlings and 
saplings compared to adults (Monsegur-Rivera 2009-2018, pers. obs.; see 
table above), mesic (humid) environmental conditions favor the natural 
recruitment of the species, contrasting with the low proportion of 
seedlings versus adult individuals of Sierra Bermeja (despite the 
partial protection of the habitat), where overall environmental 
conditions are drier. The lowlands and valleys surrounding Sierra 
Bermeja were covered by continuous forest, and these areas were 
deforested for agriculture, which changed the microhabitat conditions 
and the moisture retention of the habitat in which E. woodburyana 
evolved. For example, the populations of E. woodburyana at El Conuco 
that are located on south-facing slopes and more disturbed sites show 
basically no recruitment when compared to the individuals of the same 
populations located on the north-facing slopes, which are a dense 
forested habitat with moist conditions and less intrusion by exotic 
species.
    Climate model simulations indicate an increase in global tropical 
cyclone intensity as well as an increase in the number of very intense 
tropical cyclones (USGCRP 2018, p. 2:8). Thus, it is expected that the 
Caribbean will experience an increase in the amount of precipitation 
and extreme winds produced during hurricane events (Herrera et al. 
2018, p. 1). Hurricanes, followed by extended periods of drought caused 
by climate change, may result in changes to microclimate that could 
allow other highly adaptive invasive species to establish and become 
harmful to the system (Lugo 2000, p. 246; Hopkinson et al. 2008, p. 
255; IPCC report 2018, p. 244). In fact, as stated above, species like 
the exotic guinea grass can colonize and spread into E. woodburyana 
habitat after a disturbance, increasing fire propensity and altering 
microclimate and nutrient cycling of the habitat on which E. 
woodburyana depends. Additionally, increased heavy precipitation can 
augment the probability of landslides and sediment runoff in those 
steep areas where E. woodburyana is abundant and severely affect the 
species (Morales-P[eacute]rez 2013, pp. 5, 12). In general, increasing 
hurricane intensity and frequency, along with E. woodburyana's small 
populations, a low number of individuals in most populations, the 
species' low recruitment rate, and habitat degradation and 
fragmentation, are likely to have adverse consequences for this species 
and its habitat.
    As stated above, projected climate conditions will likely have 
direct or at least indirect adverse effects on E. woodburyana and its 
habitat. Some general patterns associated with forest ecosystems in 
Puerto Rico (PRCCC 2013, p. 14) that can affect E. woodburyana, are 
increased seasonality in precipitation and decreased soil moisture 
availability, which will alter

[[Page 74007]]

flowering and fruiting patterns; affect seedling germination and 
survival; and result in changes in forest species composition, 
structure, and ecological functions. Also, intense storms will increase 
disturbance, changing plant succession and biomass, leading to novel 
communities (likely dominated by exotic plant species). Despite the 
evidence that some terrestrial plant populations have the ability to 
adapt and respond to changing climatic conditions (Franks et al. 2013, 
entire), a long-term monitoring of known E. woodburyana populations is 
needed to determine whether this species will be resilient to, or be 
able to adapt to, these stressors.
    In summary, the limited distribution and low number of individuals 
were considered a threat to E. woodburyana when listed. Recent 
information indicates the species is more abundant and widely 
distributed than previously thought. Currently, other natural and 
manmade factors, such as hurricanes and climate change are considered 
stressors to E. woodburyana.
    Hurricanes can result in massive mortality of trees, and 
particularly can affect or even extirpate small populations of E. 
woodburyana. Hurricane Mar[iacute]a caused defoliation and uprooting of 
E. woodburyana planted individuals at the CRNWR (Monsegur-Rivera 2017, 
pers. obs.), however population-level effects were not verified. 
Stochastic events, such as landslides and heavy sediment runoff, 
particularly caused by hurricanes, also can threaten E. woodburyana 
because of the occurrence of core populations of this species in steep 
areas in Sierra Bermeja where landslides have been documented near 
them.
    Also, it is expected that E. woodburyana will be affected by 
changes in climatic conditions. Effects associated with climate change 
include droughts, heavy precipitation, and intense tropical storms and 
hurricanes. For E. woodburyana, a reduction in precipitation in a 
subtropical dry forest where precipitation is already reduced, may 
compromise its phenology, seed viability, seedling recruitment, and 
seedling survival. Intense hurricanes, followed by extended periods of 
drought may result in changes in microclimate conditions that can favor 
the establishment invasive species that can compete with E. 
woodburyana. Additionally, increased heavy precipitation during 
hurricanes can produce landslides and sediment runoff in steep areas 
where E. woodburyana occurs, affecting its survival and recruitment 
(Morales-P[eacute]rez 2013, pp. 5, 12; Envirosurvey 2020, p. 51). 
Moreover, extreme wind events may result in the direct mortality of 
individuals and extirpation of small populations (e.g., Montes de 
Barinas and Salinas). Overall, the effects of a changing climate on E. 
woodburyana can be exacerbated by its reduced number of populations, 
low number of individuals in most populations, and habitat degradation 
and fragmentation, which can affect the viability of the species into 
the future.

Summary of Threats

    We have carefully assessed the best scientific and commercial 
information available regarding the threats faced by E. woodburyana in 
developing this rule. Based on the analysis above, even though we no 
longer consider limited distribution as a threat to this species, we 
believe that habitat destruction and modification (e.g., forest 
conversion into pasturelands) on privately owned lands and other 
factors, such as human-induced fires, livestock, invasive plant 
species, hurricanes, and climate change (droughts), continue to 
threaten E. woodburyana populations despite these threats being reduced 
in some areas.
    Species viability, or the species' ability to survive long term, is 
related to the species' ability to withstand catastrophic population 
and species-level events (redundancy), to adapt to changing 
environmental conditions (representation), and to withstand stochastic 
disturbances of varying magnitude and duration (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. Redundancy of 
populations is needed to provide a margin of safety for a species to 
withstand catastrophic events.
    We further evaluated the biological status of this species both 
currently and into the future, considering the species' viability as 
characterized by its resiliency, redundancy, and representation. E. 
woodburyana has demonstrated resilience to both natural and 
anthropogenic disturbances. However, seedlings remain susceptible to 
the effects of droughts and habitat modification, which can affect the 
recruitment and long-term viability of E. woodburyana.
    Currently, three (i.e., Sierra Bermeja, GCF, and Alm[aacute]cigo 
Bajo) of the six known E. woodburyana populations show some degree of 
natural recruitment. The observed resiliency of the species may have 
occurred in part due to the availability of suitable habitat where some 
of the subpopulations are found, which allowed some recruitment. To 
further natural recruitment and provide even greater resiliency, more 
habitat protection and enhancement is needed. This would increase 
connectivity between subpopulations, maximizing the likelihood of 
crosspollination and gene flow, increasing fruit production and viable 
seeds. In addition, the remaining small and isolated populations (i.e., 
Monte Barinas, Punta Cucharas, and Camp Santiago) need to be enhanced 
and protected.
    We have no data on the genetic variability of E. woodburyana to 
inform representation. However, this species occurs in a wide range of 
habitats and environmental conditions, suggesting that the species was 
widely distributed in the past and it may have an ample genetic 
plasticity that would allow the species to adapt to different habitat 
and environmental changes. Although E. woodburyana is still thriving in 
these environments, its representation basically relies on the genetic 
contribution of only two populations, Sierra Bermeja and GCF, as these 
subpopulations are well connected. The remaining four populations are 
isolated, with only a very few individuals and lack of recruitment, 
except for the Alm[aacute]cigo Bajo population. This population occurs 
on a private land adjacent to a former quarry and where harvesting of 
E. woodburyana and other species for fence posts has been documented 
(USFWS 2017, p. 19). The loss or reduction of the Alm[aacute]cigo Bajo 
population would represent an important impact to the species' 
conservation due to its higher recruitment rate, and its presumed 
genetic uniqueness as it is the only one occurring within the 
subtropical moist forest life zone. Three of the known populations are 
small in numbers, isolated, and not effectively reproducing. Therefore, 
we believe the overall representation of E. woodburyana is low to 
moderate.
    We consider that E. woodburyana's redundancy has increased since 
listing but remains low to moderate as it is only known from six 
populations throughout its geographical range. Moreover, three of these 
populations--Montes de Barinas (1 adult individual), Punta Cucharas (30 
adult individuals), and Camp Santiago (1 adult individual)--are very 
small with no current evidence of natural recruitment, making them more 
vulnerable to catastrophic events such as human-induced fires, 
hurricanes, and droughts, which affect seedling establishment (Acevedo-
Rodr[iacute]guez 2014, p. 15). In fact, E. woodburyana has not been 
observed naturally expanding or

[[Page 74008]]

colonizing into degraded habitat outside the areas where it is known to 
occur, particularly where the largest populations are found (i.e., 
Sierra Bermeja, GCF, and Alm[aacute]cigo Bajo). The populations on 
Montes de Barinas and Camp Santiago are the most vulnerable to 
extirpation if not managed and enhanced. The loss of the Montes de 
Barinas, Punta Cucharas, and Camp Santiago individuals (the easternmost 
populations) will reduce the redundancy of the species.
    Although population numbers and abundance of E. woodburyana have 
increased, and some identified threats have decreased, our analysis 
indicates that, because of the remaining threats and stressors, the 
species remains likely to become in danger of extinction in the 
foreseeable future throughout all of its range. Based on biological 
factors and stressors to the species' viability, we consider 30 years 
to be the foreseeable future within which we have a reasonable degree 
of confidence in the predictions. The foreseeable future for the 
individual threats varies. Projections out to the year 2100 show 
increases in temperature and decreases in precipitation (Henareh 
Khalyani et al. 2016, pp. 274-275). However, divergence in temperature 
and precipitation projections increases dramatically after mid-century, 
depending on the scenario (Henareh Khalyani et al. 2016, p. 275), 
making projections beyond 20 to 30 years uncertain. Therefore, our 
ability to predict stressors associated with climate change is reduced 
beyond mid-century. Thus, using 30 years as the foreseeable future 
accounts for the effects of predicted changes in temperature, the 
shifting of life zones, and increasing droughts. Additionally, the 
species has been listed for more than 25 years, so we have a baseline 
to understand how populations have performed in that period.
    This time period includes multiple generations of the species and 
allows adequate time for impacts from conservation efforts or changes 
in threats to be observed through population responses. For example, 
this timeframe accounts for the species' reproductive biology because 
it reflects the time required by an individual plant of E. woodburyana 
to reach a reproductive size and effectively contribute to the next 
generations. It accounts for reaching maturity, the probability of 
flowering, effective cross-pollination, setting viable fruits, seed 
germination, and seedling survival and establishment, considering 
environmental stochastic events such as drought. Furthermore, the 
established timeframe provides for the design and implementation of 
conservation strategies to protect and enhance currently known 
populations. It also accounts for continued collaboration with partners 
(e.g., PRDNER and PLN) to implement effective propagation and 
reintroduction of E. woodburyana, and to implement best management 
practices to reduce impacts from agricultural practices that will 
reduce incidence of human-induced fires and promote habitat 
connectivity.

Determination of Eugenia woodburyana's Status

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

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we carefully examined the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by this plant. We reviewed the information available in our files 
and other available published and unpublished information, and we 
consulted with recognized experts and State/Territory agencies. In 
considering factors that might constitute threats to a species, we must 
look beyond the exposure of the species to a factor to evaluate whether 
it responds to the factor in a way that causes impacts to the species 
or is likely to cause impacts in the future. If a species responds 
negatively to such exposure, the factor may be a threat, and, during 
the status review, our aim is to determine whether impacts are or will 
be of an intensity or magnitude to place the species at risk. The 
factor is a threat if it drives, or contributes to, the risk of 
extinction of the species such that the species warrants listing as an 
endangered or threatened species as those terms are defined by the Act. 
This does not necessarily require empirical proof of a threat. The 
combination of exposure and some corroborating evidence of how the 
species is likely affected could suffice. In sum, the mere 
identification of factors that could affect a species negatively is not 
sufficient to compel a finding that listing is appropriate; we require 
evidence that these factors act on the species to the point that the 
species meets the definition of an endangered or threatened species.
    At the time of listing (59 FR 46715; September 9, 1994), the known 
range of E. woodburyana consisted of 45 individuals distributed among 3 
localities in southwestern Puerto Rico. The most serious threats to 
such a small number of individuals were habitat destruction and 
modification, inadequacy of existing regulatory mechanisms, and limited 
distribution. Currently, E. woodburyana exists across a broader 
geographic range in six populations composed of several subpopulations. 
Increased survey efforts and implementation of recovery actions have 
resulted in more occupied habitat identified, leaving open the 
potential of finding even more E. woodburyana individuals. Protection 
under the Act, as well as Commonwealth laws and regulations, has 
reduced unauthorized take of the species, although accidental damage to 
the species has occurred due to lack of knowledge of the species by 
private landowners. Also, about 47 percent of the total known natural 
adults and saplings are found on Federal, Commonwealth, and private 
lands managed for conservation and where the species is protected.
    Although now known to be more widespread and abundant than 
previously thought, the other 53 percent of known adult and saplings 
occur on lands where they are threatened by habitat destruction and 
modification (e.g., conversion of forested habitat into pasturelands; 
grazing by cattle, horses, and goats; and urban development). In 
addition, recent information indicates that threats from invasive 
species, human-induced fires, droughts, hurricanes, landslides, and 
sediment runoff are currently acting upon E. woodburyana. Some of these 
threats could be more severe for the populations on lands where, for 
example, there are no fire management prevention practices implemented,

[[Page 74009]]

making the species more vulnerable to impacts.
    We have determined that the previously recognized impacts to E. 
woodburyana from inadequate regulatory mechanisms that occurred prior 
to listing in 1994 by the Commonwealth of Puerto Rico have been 
reduced, and limited distribution is no longer impacting E. 
woodburyana. In summary, there continues to be concern about the 
present or threatened destruction, modification, or curtailment of E. 
woodburyana's habitat or range (specifically, conversion of forested 
land into pasturelands; grazing by cattle, horses, and goats; and urban 
development) and other natural or manmade factors affecting E. 
woodburyana's continued existence (specifically, invasive species, 
human-induced fires, droughts, hurricanes, landslides, and sediment 
runoff) throughout the species' known range, particularly for those 
populations on private lands. The existing regulatory mechanisms are 
not adequate to address these threats at this time. The species is not 
affected by stressors related to overcollection, disease, or predation. 
Still, none of the identified threats is an imminent threat or of a 
magnitude such that the taxon warrants endangered status across its 
range. Thus, after assessing the best available information, we 
conclude that E. woodburyana is not currently in danger of extinction 
throughout all of its range, but is likely to become in danger of 
extinction within the foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 435 
F. Supp. 3d 69 (D.D.C. 2020) (Center for Biological Diversity), vacated 
the aspect of the Final Policy on Interpretation of the Phrase 
``Significant Portion of Its Range'' in the Endangered Species Act's 
Definitions of ``Endangered Species'' and ``Threatened Species'' (79 FR 
37578; July 1, 2014) that provided that the Service does not undertake 
an analysis of significant portions of a species' range if the species 
warrants listing as threatened throughout all of its range. Therefore, 
we proceed to evaluating whether the species is endangered in a 
significant portion of its range--that is, whether there is any portion 
of the species' range for which both (1) the portion is significant; 
and (2) the species is in danger of extinction in that portion. 
Depending on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    Following the court's holding in 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 E. woodburyana, we 
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 is endangered.
    For E. woodburyana, we considered whether the threats are 
geographically concentrated in any portion of the species' range. We 
examined the following threats: Habitat destruction and modification 
(particularly by urban development and grazing by cattle, horses, and 
goats); human-induced fires; invasive species; hurricanes, landslides, 
and sediment runoff; and the effects of climate change (e.g., prolonged 
droughts and expected shifts of life zones). As discussed above, these 
threats are acting upon the species across its range. We have 
identified that habitat modification is threatening four of the six E. 
woodburyana known populations. In addition, human-induced fires and 
invasive plant species are considered as further stressors to the 
viability of E. woodburyana, particularly on private lands throughout 
the known range of the species where no fire management practices are 
implemented. It is also expected that E. woodburyana will be affected 
by changes in climatic conditions, particularly by generalized changes 
in precipitation and drought conditions, and by the shifting of life 
zones, as suggested by downscaled models developed for Puerto Rico. In 
fact, climate change is expected to result in more intense hurricanes 
and extended periods of droughts, and effects to E. woodburyana from 
these will be exacerbated by a reduced number of the species' 
populations, the low number of individuals in most populations, and 
habitat degradation and fragmentation. Small populations are scattered 
throughout the range of the species and many are recently discovered. 
We have no evidence at present to say that these small populations are 
the result of a concentration of threats, instead, it appears it may 
simply represent increased survey effort in previously under-surveyed 
areas. The threats listed above either occur throughout the range or 
may affect populations in ways we cannot predict well, at present, 
therefore we have no evidence of a concentration of threats in any 
portion of the species range. 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, and we determine that the species 
is likely to become in danger of extinction within the foreseeable 
future throughout all of its range. This is consistent with the courts' 
holdings in Desert Survivors v. Department of the Interior, 321 F. 
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018), and Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017) because, 
in reaching this conclusion, we did not apply the aspects of the Final 
Policy, including the definition of ``significant'' that those court 
decisions held to be invalid.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that E. woodburyana does not meet the definition 
of an endangered species in accordance with sections 3(6) and 4(a)(1) 
of the Act, but this plant does meet the definition of a threatened 
species in accordance with sections 3(20) and 4(a)(1) of the Act. 
Therefore, we are downlisting E. woodburyana from endangered to 
threatened on the List of Endangered and Threatened Plants.

Available Conservation Measures

    Conservation measures provided for species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies; private 
organizations; and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and

[[Page 74010]]

threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Revisions of the plan may be done to address continuing or new 
threats to the species, as new substantive information becomes 
available. The recovery plan identifies site-specific management 
actions that set a trigger for review of the five factors that control 
whether a species may be downlisted or delisted, and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks.
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, Territory, and 
Tribal lands where appropriate. Funding for recovery actions could 
become available from a variety of sources, including Federal budgets, 
State programs, and cost share grants from non-Federal landowners, the 
academic community, and nongovernmental organizations. We invite you to 
submit any new information on this species whenever it becomes 
available (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) requires Federal agencies to evaluate their actions 
with respect to any species that is listed as an endangered or 
threatened species. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(2) of the Act requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species. If a Federal action 
may affect a listed species, the responsible Federal agency must enter 
into consultation with the Service.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a final listing 
on proposed and ongoing activities within the range of a listed 
species. The discussion below regarding protective regulations under 
section 4(d) of the Act complies with our policy. The Act allows the 
Secretary to promulgate protective regulations for threatened species 
pursuant to section 4(d) of the Act. We are finalizing a set of 
regulations to provide for the conservation of the species in 
accordance with section 4(d). This rule, which includes a description 
of the kinds of activities that would or would not constitute a 
violation, complies with this policy.

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

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' demonstrates a large degree 
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). 
Conservation is defined in the Act to mean the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary. Additionally, the second sentence 
of section 4(d) of the Act states that the Secretary may by regulation 
prohibit with respect to any threatened species any act prohibited 
under section 9(a)(1), in the case of fish or wildlife, or section 
9(a)(2), in the case of plants. Thus, the combination of the two 
sentences of section 4(d) provides the Secretary with wide latitude of 
discretion to select and promulgate appropriate regulations tailored to 
the specific conservation needs of the threatened species. The second 
sentence grants particularly broad discretion to the Service when 
adopting the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife, or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council 
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the Act was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to [her] with regard to the permitted activities for those species. 
[She] may, for example, permit taking, but not importation of such 
species, or [she] may choose to forbid both taking and importation but 
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    Exercising its authority under section 4(d) of the Act, the Service 
has developed a rule that is designed to address E. woodburyana's 
specific threats and conservation needs. Although the statute does not 
require the Service to make a ``necessary and advisable'' finding with 
respect to the adoption of specific prohibitions under section 9, we 
find that this rule as a whole satisfies the requirement in section 
4(d) of the Act to issue regulations deemed necessary and advisable to 
provide for the conservation of the E. woodburyana. As discussed above 
under Summary of Biological Status and Threats, the Service has 
concluded that E. woodburyana is at risk of extinction within the 
foreseeable future primarily due to habitat destruction and 
modification (urban development and grazing by cattle, horses, and 
goats); human-induced fires; and invasive species. Additionally, other 
natural or manmade factors like hurricanes, landslides, sediment 
runoff, and the effects of climate change cause the species to be in 
the risk of extinction within the foreseeable future. The provisions of 
this 4(d) rule promote the conservation of E. woodburyana by 
encouraging the conservation of the habitat considering land use and 
the

[[Page 74011]]

species' needs. The provisions of this rule are one of many tools that 
the Service will use to promote the conservation of E. woodburyana.

Provisions of the 4(d) Rule

    This 4(d) rule will provide for the conservation of E. woodburyana 
by prohibiting the following activities, except as otherwise authorized 
or permitted: Import or export; removing and reducing to possession E. 
woodburyana from areas under Federal jurisdiction; maliciously damaging 
or destroying the species on any area under Federal jurisdiction; 
removing, cutting, digging up, or damaging or destroying the species on 
other area in knowing violation of any law or regulation of the 
Territory or in the course of any violation of a Territorial criminal 
trespass law; delivering, receiving, carrying, transporting, or 
shipping the species in interstate or foreign commerce in the course of 
a commercial activity; and selling or offering for sale the species in 
interstate or foreign commerce.
    As discussed above under Summary of Biological Status and Threats, 
the present or threatened destruction, modification, or curtailment of 
its habitat or range (specifically, urban development; grazing by 
cattle, horses, and goats; human-induced fires; and invasive species), 
the inadequacy of existing regulatory mechanisms, and other natural or 
manmade factors affecting its continued existence (specifically, 
hurricanes, landslides, sediment runoff, and the effects of climate 
change) are affecting the status of E. woodburyana. A range of 
activities have the potential to impact E. woodburyana, including, but 
not limited to, habitat conversion from forested habitat to pasture for 
grazing, fence posts harvesting, and land clearing for development. 
Regulating these activities will help preserve the species' remaining 
populations, slow their rate of potential decline, and decrease 
synergistic, negative effects from other stressors.
    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. However, under our 
recent revisions to Sec.  17.71, the prohibitions in Sec.  17.71(a) 
will not apply to any plant listed as a threatened species after 
September 26, 2019. As a result, for threatened plant species listed 
after that date, any protections must be contained in a species-
specific 4(d) rule. We did not intend for those revisions to limit or 
alter the applicability of the permitting provisions in Sec.  17.72, or 
to require that every species-specific 4(d) rule spell out any 
permitting provisions that apply to that species and species-specific 
4(d) rule. To the contrary, 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.
    The Service recognizes 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 
Service in implementing all aspects of the Act. In this regard, section 
6 of the Act provides that the Service shall cooperate to the maximum 
extent practicable with the States in carrying out programs authorized 
by the Act. Therefore, any qualified employee or agent of a State or 
Territorial conservation agency which is a party to a cooperative 
agreement with the Service in accordance with section 6(c) of the Act, 
who is designated by his or her agency for such purposes, will be able 
to conduct activities designed to conserve E. woodburyana that may 
result in otherwise prohibited activities for plants without additional 
authorization.
    The Service recognizes the beneficial and educational aspects of 
activities with seeds of cultivated plants, which generally enhance the 
propagation of the species, and therefore will satisfy permit 
requirements under the Act. The Service intends 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 will not be 
regulated provided that a statement that the seeds are of ``cultivated 
origin'' accompanies the seeds or their container (e.g., the seeds 
could be moved across State lines or between territories for purposes 
of seed banking or use for outplanting without additional regulations).
    Nothing in this 4(d) rule will change in any way the recovery 
planning provisions of section 4(f) of the Act, the consultation 
requirements under section 7 of the Act, or the ability of the Service 
to enter into partnerships for the management and protection of E. 
woodburyana. However, interagency cooperation may be further 
streamlined through planned programmatic consultations for the species 
between Federal agencies and the Service.

Effects of This Rule

    This rule revises 50 CFR 17.12(h) to reclassify E. woodburyana from 
endangered to threatened on the Federal List of Endangered and 
Threatened Plants. It also recognizes that this plant is no longer in 
danger of extinction throughout all or a significant portion of its 
range. This reclassification does not significantly change the 
protections afforded to this species under the Act. The prohibitions 
and conservation measures provided by the Act, particularly through 
sections 7 and 9, continue to apply to E. woodburyana. Federal agencies 
are required to consult with the Service under section 7 of the Act in 
the event that activities they authorize, fund, or carry out may affect 
E. woodburyana.
    As applicable, recovery actions directed at E. woodburyana will 
continue to be implemented as outlined in the recovery plan for this 
plant (USFWS 1998, entire). Highest priority actions (also recommended 
as future actions in our 5-year review (USFWS 2017)) include:
    (1) Develop more measurable and objective criteria to delist this 
species based on best available information;
    (2) Continue conducting comprehensive surveys for this species 
within traditional and non-traditional sites to determine more details 
on

[[Page 74012]]

abundance and distribution of the species;
    (3) Promote conservation agreements with private landowners to 
protect and enhance existing populations;
    (4) Work closely with the PRDNER and landowners to ensure the 
protection of the species and its habitat on private lands; and
    (5) Continue implementing fire prevention practices in Sierra 
Bermeja, CRNWR, and GCF during the dry season.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

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

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

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 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). This position was upheld by the U.S. Court of Appeals for 
the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

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

References Cited

    A complete list of references cited is available on https://www.regulations.gov under Docket No. FWS-R4-ES-2019-0070.

Authors

    The primary authors of this rule are members of the Caribbean 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


0
2. Amend Sec.  17.12, in paragraph (h), by revising the entry for 
``Eugenia woodburyana'' 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
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Eugenia woodburyana.............  No common name....  Wherever found....  T              59 FR 46715, 9/9/1994;
                                                                                         87 FR [insert Federal
                                                                                          Register page where
                                                                                          the document begins],
                                                                                          12/2/2022; 50 CFR
                                                                                          17.73(e).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


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


Sec.  17.73  Special rules--flowering plants.

* * * * *
    (e) Eugenia woodburyana (no common name).

[[Page 74013]]

    (1) Prohibitions. The following prohibitions that apply to 
endangered plants also apply to Eugenia woodburyana. Except as provided 
under paragraph (e)(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, as set forth at Sec.  17.61(c)(1) for endangered 
plants.
    (iii) Maliciously damage or destroy the species on any areas under 
Federal jurisdiction, or remove, cut, dig up, or damage or destroy the 
species on any other area in knowing violation of any law or regulation 
of the Territory or in the course of any violation of a Territorial 
criminal trespass law, as set forth at section 9(a)(2)(B) of the Act.
    (iv) Engage in interstate or foreign commerce in the course of 
commercial activity, as set forth at Sec.  17.61(d) for endangered 
plants.
    (v) Sell or offer for sale in interstate or foreign commerce, as 
set forth at Sec.  17.61(e) for endangered plants.
    (2) Exceptions from prohibitions. The following exceptions from 
prohibitions apply to Eugenia woodburyana:
    (i) The prohibitions described in paragraph (e)(1) of this section 
do not apply to activities conducted as authorized by a permit issued 
in accordance with the provisions set forth at Sec.  17.72.
    (ii) Any employee or agent of the Service or of a State or 
Territorial conservation agency that is operating a conservation 
program pursuant to the terms of a cooperative agreement with the 
Service in accordance with section 6(c) of the Act, who is designated 
by that agency for such purposes, may, when acting in the course of 
official duties, remove and reduce to possession from areas under 
Federal jurisdiction members of Eugenia woodburyana that are covered by 
an approved cooperative agreement to carry out conservation programs.
    (iii) Individuals may engage in any act prohibited under paragraph 
(e)(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.
* * * * *

Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-25706 Filed 12-1-22; 8:45 am]
BILLING CODE 4333-15-P