Federal Register / Vol. 71, No. 162 / Tuesday, August 22, 2006 / Proposed Rules 48883 

18 AAC 50.311. Nonattainment Area Major 

Stationary Source Permits (effective 10/01/ 

04) 

18 AAC 50.316. Preconstruction Review for 

Construction or Reconstruction of a Major 

Source of Hazardous Air Pollutants 

(effective 10/01/04) except (c) 

18 AAC 50.326. Title V Operating Permits 

(effective 10/01/04) except (j)(1), (k)(3), 

(k)(5), and (k)(6) 

18 AAC 50.345. Construction and Operating 

Permits: Standard Permit Conditions 

(effective 1/18/97) 

18 AAC 50.346. Construction and Operating 

Permits: Other Permit Conditions (effective 

10/01/04) 

Table 7. Emission Unit or Activity, Standard 

Permit Condition 

Article 4. User Fees 

18 AAC 50.400. Permit Administration Fees 

(effective 1/18/97) except (a), (b), (c)(1), 

(c)(3), (c)(6), (i)(2), (i)(3), (m)(3) and (m)(4) 

18 AAC 50.403. Negotiated Service 

Agreements (effective 1/29/05) except (8) 

and (9) 

18 AAC 50.405. Transition Process for Permit 

Fees (effective 1/29/05) 

18 AAC 50.410. Emission Fees (effective 1/ 

18/97) 

18 AAC 50.499. Definition for User Fee 

Requirements (effective 1/29/05) 

Article 5. Minor Permits 

18 AAC 50.502. Minor Permits for Air 

Quality Protection (effective 10/1/04) 

except (b)(1), (b)(2), (b)(3) and (b)(5) 

18 AAC 50.508. Minor Permits Requested by 

the Owner or Operator (effective 10/1/04) 

18 AAC 50.509. Construction of a Pollution 

Control Project without a Permit (effective 

10/1/04) 

18 AAC 50.540. Minor Permit: Application 

(effective 10/1/04) 

18 AAC 50.542. Minor Permit: Review and 

Issuance (effective 10/1/04) except (b)(1), 

(b)(2), (b)(5), and (d) 

18 AAC 50.544. Minor Permits: Content 

(effective 10/1/04) 

18 AAC 50.546. Minor Permits: Revisions 

(effective 10/1/04) 

18 AAC 50.560. General Minor Permits 

(effective 10/1/04) except (b) 

Article 9. General Provisions 

18 AAC 50.990. Definitions (effective 1/18/ 

97) 

* * * * * 

[FR Doc. E6–13860 Filed 8–21–06; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU76 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Catesbaea melanocarpa 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for the 

endangered plant Catesbaea 

melanocarpa (no common name) under 

the Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

50 acres (ac) (20.2 hectares (ha)) fall 

within the boundaries of the proposed 

critical habitat designation for C. 

melanocarpa in one unit located in 

Christiansted, St. Croix, U.S. Virgin 

Islands. If made final, this proposal may 

result in additional requirements under 

section 7 of the Act for Federal agencies. 

No additional requirements are 

expected for non-Federal actions. The 

Service seeks comments on all aspects 

of this proposal from the public. 

DATES: We will accept comments from 

all interested parties until October 23, 

2006. We must receive requests for 

public hearings, in writing, at the 

address shown in the ADDRESSES section 

by October 6, 2006. 

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials concerning this proposal by 

any one of several methods: 

1. You may submit written comments 

and information by mail or handdelivery to Edwin E. Mun ̃iz, Field 

Supervisor, U.S. Fish and Wildlife 

Service, Caribbean Fish and Wildlife 

Office, Road 301 Km. 5.1, P.O. Box 491, 

Boquero ́n, Puerto Rico 00622. 

2. You may send comments by 

electronic mail (e-mail) to 

marelisa_rivera@fws.gov. Please see the 

Public Comments Solicited section 

below for file format and other 

information about electronic filing. 

3. You may fax your comments to 

787–851–7440. 

4. You may submit comments via the 

Federal E-Rulemaking Portal at http:// 

www.regulations.gov. 

Comments and materials received, as 

well as supporting documentation used 

in the preparation of this proposed rule, 

will be available for public inspection, 

by appointment, during normal business 

hours at the Caribbean Fish and Wildlife 

Office, Road 301 Km. 5.1, Boquero ́n, 

Puerto Rico (telephone 787–851–7297). 

FOR FURTHER INFORMATION CONTACT: 

Marelisa Rivera, Caribbean Fish and 

Wildlife Office (see ADDRESSES), 

telephone 787–851–7297 ext. 231; 

facsimile 787–851–7440. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend that any final action 

resulting from this proposal will be as 

accurate and as effective as possible. 

Therefore, comments or suggestions 

from the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning this 

proposed rule are hereby solicited. 

Comments particularly are sought 

concerning: 

(1) The reasons any habitat should or 

should not be determined to be critical 

habitat as provided by section 4 of the 

Act (16 U.S.C. 1531 et seq.), including 

whether the benefit of designation will 

outweigh any threats to the species due 

to designation; 

(2) Specific information on the 

amount and distribution of Catesbaea 

melanocarpa habitat, including areas 

occupied by C. melanocarpa at the time 

of listing and containing features 

essential to the conservation of the 

species, and areas not occupied at the 

listing that are essential to the 

conservation of the species and why; 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat; 

(4) We have not included lands 

containing features essential to the 

conservation of C. melanocarpa within 

the Gu ́nica and Susu ́ a Commonwealth 

Forests in Puerto Rico in this proposed 

designation because we believe that the 

Commonwealth Forests provide 

conservation management and 

protection for these features such that 

the specific areas do not meet the 

definition of critical habitat. We are 

seeking specific comments related to: 

(a) Whether our determination to not 

include these specific areas in critical 

habitat is appropriate, and 

(b) if our determination is not 

appropriate, then how should we define 

the specific areas essential to 

conservation of this plant. 

(5) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation and, in particular, any 

impacts on small entities; 

(6) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 


cprice-sewell on PROD1PC66 with PROPOSALS
48884 Federal Register / Vol. 71, No. 162 / Tuesday, August 22, 2006 / Proposed Rules 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments; 

If you wish to comment, you may 

submit your comments and materials 

concerning this proposal by any one of 

several methods (see ADDRESSES

section). Please submit electronic 

comments to marelisa_rivera@fws.gov in 

ASCII file format and avoid the use of 

special characters or any form of 

encryption. Please also include ‘‘Attn: 

Catesbaea melanocarpa’’ in your e-mail 

subject header and your name and 

return address in the body of your 

message. If you do not receive a 

confirmation from the system that we 

have received your message, contact us 

directly by calling our Caribbean Fish 

and Wildlife Office at phone number 

787–851–7297. 

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

during regular business hours. We will 

not consider anonymous comments, and 

we will make all comments available for 

public inspection in their entirety. 

Comments and materials received will 

be available for public inspection, by 

appointment, during normal business 

hours at the Caribbean Fish and Wildlife 

Office (see ADDRESSES). 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

Attention to and protection of habitat 

is paramount to successful conservation 

actions. The role that designation of 

critical habitat plays in protecting 

habitat of listed species, however, is 

often misunderstood. As discussed in 

more detail below in the discussion of 

exclusions under section 4(b)(2) of the 

Act, there are significant limitations on 

the regulatory effect of designation 

under section 7(a)(2) of the Act. In brief, 

(1) Designation provides additional 

protection to habitat only where there is 

a Federal nexus; (2) the protection is 

relevant only when, in the absence of 

designation, destruction or adverse 

modification of the critical habitat 

would take place (in other words, other 

statutory or regulatory protections, 

policies, or other factors relevant to 

agency decision-making would not 

prevent the destruction or adverse 

modification); and (3) designation of 

critical habitat triggers the prohibition 

of destruction or adverse modification 

of that habitat, but it does not require 

specific actions to restore or improve 

habitat. 

Currently, only 475 species or 36 

percent of the 1,310 listed species in the 

U.S. under the jurisdiction of the 

Service, have designated critical habitat. 

We address the habitat needs of all 

1,310 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

section 4 recovery planning process, the 

section 9 protective prohibitions of 

unauthorized take, section 6 funding to 

the States, the section 10 incidental take 

permit process, and cooperative, nonregulatory efforts with private 

landowners. The Service believes that 

these measures may make the difference 

between extinction and survival for 

many species. 

In considering exclusions of areas 

proposed for designation, we evaluated 

the benefits of designation in light of 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F. 3d 1059 

(9th Cir 2004) (hereinafter Gifford 

Pinchot). In that case, the Ninth Circuit 

invalidated the Service’s regulation 

defining ‘‘destruction or adverse 

modification of critical habitat.’’ In 

response, on December 9, 2004, the 

Director issued guidance to be 

considered in making section 7 adverse 

modification determinations. This 

proposed critical habitat designation 

does not use the invalidated regulation 

in our consideration of the benefits of 

including areas in this final designation. 

The Service will carefully manage 

future consultations that analyze 

impacts to designated critical habitat, 

particularly those that appear to be 

resulting in an adverse modification 

determination. Such consultations will 

be reviewed by the Regional Office prior 

to finalizing to ensure that an adequate 

analysis has been conducted that is 

informed by the Director’s guidance. 

On the other hand, to the extent that 

designation of critical habitat provides 

protection, that protection can come at 

significant social and economic cost. In 

addition, the mere administrative 

process of designation of critical habitat 

is expensive, time-consuming, and 

controversial. The current statutory 

framework of critical habitat, combined 

with past judicial interpretations of the 

statute, make critical habitat the subject 

of excessive litigation. As a result, 

critical habitat designations are driven 

by litigation and courts rather than 

biology, and made at a time and under 

a time frame that limits our ability to 

obtain and evaluate the scientific and 

other information required to make the 

designation most meaningful. 

In light of these circumstances, the 

Service believes that additional agency 

discretion would allow our focus to 

return to those actions that provide the 

greatest benefit to the species most in 

need of protection. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of courtordered designations have left the 

Service with limited ability to provide 

for public participation or to ensure a 

defect-free rulemaking process before 

making decisions on listing and critical 

habitat proposals, due to the risks 

associated with noncompliance with 

judicially imposed deadlines. This in 

turn fosters a second round of litigation 

in which those who fear adverse 

impacts from critical habitat 

designations challenge those 

designations. The cycle of litigation 

appears endless and is very expensive, 

thus diverting resources from 

conservation actions that may provide 

relatively more benefit to imperiled 

species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA; 42 

U.S.C. 4321 et seq.). These costs, which 

are not required for many other 

conservation actions, directly reduce the 

funds available for direct and tangible 

conservation actions. 

Background 

We intend to discuss topics directly 

relevant to the designation of critical 

habitat in this proposed rule. For more 


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Federal Register / Vol. 71, No. 162 / Tuesday, August 22, 2006 / Proposed Rules 48885 

information on C. melanocarpa, 

including characteristics and life 

history, refer to the final listing rule 

published in the Federal Register on 

March 17, 1999 (64 FR 13116) and the 

final recovery plan (July 15, 2005). 

C. melanocarpa is a perennial spiny 

shrub of the Madder family (Rubiaceae). 

Most members of this family are found 

in the tropics. The genus Catesbaea 

consists of 10 or more other species of 

spiny shrubs and is generally confined 

to the Antilles, but some may extend 

into the Bahamas and the Florida Keys 

(Breckon and Kolterman 1993, p. 1). C. 

melanocarpa is found in both dry and 

moist forest life zones in the Caribbean 

on the island of Puerto Rico (PR) and in 

the U.S. Virgin Islands (USVI). The dry 

forest life zone in PR and USVI occupies 

about 165,030 ha (407,798 acres) or 18 

percent of PR and USVI. The moist 

forest life zone occupies 548,220 ha 

(1,354,681 acres) or 58 percent of PR 

and USVI. 

Life History 

C. melanocarpa is a branching shrub 

that may reach approximately 9.8 feet 

(ft) (3.0 meters (m)) in height. Spines are 

from 0.39 to 0.78 inches (in) (1.00 to 

2.00 centimeters (cm)) long. Leaves are 

small, from 0.19 to 1.0 in (5.00 to 25.00 

millimeters (mm)) long, and 0.07 to 0.58 

in (2.00 to 15.00 mm) wide, often 

opposite. The flowers are white, solitary 

or paired, and almost lacking a stalk in 

the axils (angle formed by a leaf or 

branch with the stem) (Proctor 1991, p. 

44). 

Biological and ecological information 

on C. melanocarpa is scarce. In July 

1992, Breckon and Kolterman (1993, p. 

2) measured stem height and basal 

diameter for the 24 individuals known 

from St. Croix. Stem height ranged from 

0.36 to 9.91 ft (0.11 to 3.02 m) and 

averaged 2.59 ft (0.79 m). Basal stem 

diameter ranged from 0.16 to 2.20 in 

(0.40 to 5.60 cm). In December 1992, 

reproduction was checked, and while 

no flowers were observed, many adults 

(greater than 1.64 ft (0.50 m) in height) 

were in fruit (Breckon and Kolterman 

1993, p. 2). In St. Croix, we observed the 

species with fruit in early March 2006. 

Only a few seed germination and 

propagation experiments have been 

conducted on C. melanocarpa (Breckon 

and Kolterman 1993, p. 2). In August 

1988, seeds and plants were collected 

from the St. Croix location. Most of the 

transplanted seedlings have survived, 

and two have produced flowers and 

fruits. Of 57 seeds collected in 

December 1990, 92 percent germinated, 

but only five of the seedlings survived. 

In 1993, two fruits were collected. Ten 

seeds were obtained from these two 

fruits, but none germinated. Two plants 

previously germinated from St. Croix 

seeds were donated to the Gua ́nica 

Commonwealth Forest. These plants 

died before being planted. Fairchild 

Tropical Garden in Miami, Florida, 

collected seeds in 1994 or 1995 and had 

good germination and survival results 

(O’Reilly 2004). 

Distribution and Abundance 

The historical and current range of 

this species includes Halfpenny Bay in 

St. Croix, USVI; Gua ́nica and Susu ́ a 

Commonwealth Forests and Pen ̃ ones de 

Melones, PR; and Barbuda, Antigua, and 

Guadeloupe islands. Prior to 1995, C. 

melanocarpa was only known from 

Gua ́nica, PR; St. Croix in the USVI; and 

Barbuda, Antigua, and Guadeloupe 

(Liogier and Martorell 1982, p. 172; 

Proctor 1991, p. 44; Breckon and 

Kolterman 1993, p. 1). Little was known 

about the status of this plant on the 

islands of Antigua, Barbuda, and 

Guadeloupe. One specimen, apparently 

originating from the Susu ́ a 

Commonwealth Forest in Sabana 

Grande and Yauco, PR, was collected in 

1974 and is located in the herbarium of 

the University of Puerto Rico in San 

Juan, PR. Because of the poor condition 

of the specimen, it was not possible to 

confirm its identification as C. 

melanocarpa (Breckon and Kolterman 

1993, p. 1). 

In St. Croix, USVI, C. melanocarpa 

was first collected in 1881 by the Danish 

collector Baron H.F.A. von Eggers 

(Proctor 1991, p. 43). The species was 

re-discovered in Halfpenny Bay by Rudy 

G. O’Reilly, Jr., who found a small 

population (approximately seven 

individuals) in a dry coastal plain 

located about 2.5 miles (4 km) south of 

Christiansted in August 1988 (Breckon 

and Kolterman 1993, pp. 1–2). Voucher 

specimens of these plants were 

collected by G.R. Proctor on September, 

1988 (Proctor 1991, p. 43). The voucher 

describes the plants growing in pasture, 

shaded by Cassia poplyphylla (retama 

prieta) and other tall shrubs in the 

subtropical dry forest life zone. This 

population was estimated to consist of 

24 individuals in July 1992 (Breckon 

and Kolterman 1993, p. 2). In October 

2002, one hundred individuals were 

estimated to occur at this same location 

(Lombard 2002). 

In Gua ́nica, PR, C. melanocarpa was 

first collected by the German collector 

Paul Sintenis in 1886 (Proctor 1991, p. 

43). Based on information in the Natural 

Heritage Program of the Puerto Rico 

Department of Natural and 

Environmental Resources (DNER), two 

historical collections are reported from 

Gua ́nica: one in Cerro Montalva, west to 

Providencias Saltflats; and another at 

Punta Meseta, close to the Gua ́nica 

Lighthouse within the Gua ́nica 

Commonwealth Forest. Service 

biologists visited the last location on 

March 7, 2006 with personnel from the 

DNER and did not observe the species 

in the area. In 2001, C. melanocarpa was 

rediscovered at the Gua ́nica 

Commonwealth Forest (Trejo-Torres 

2001, p. 62; Axelrod 2004; Trejo-Torres 

2006) in the subtropical dry forest life 

zone. Service biologists visited the site 

in March 2006, and confirmed the 

presence of the species in a slope facing 

northwest of the Fuerte Trail. 

Approximately 12 individuals were 

found within the deciduous forest type. 

However, this does not represent a 

population estimate for this species at 

the Gua ́nica Commonwealth Forest. 

This forest contains habitat that is 

difficult to traverse. It is composed of 

dry shrub—scrub vegetation that is 

essentially a dense, thorny thicket of 

vegetation. Comprehensive surveys of 

the entire forest have not been 

conducted to determine all the locations 

of C. melanocarpa. Surveys thus far 

have been limited due to habitat 

constraints and resources to existing 

trails within the forests and have not 

been specifically designed yet to 

systematically look for C. melanocarpa. 

Axelrod (2004) anticipates, though, that 

this plant will be found in more 

locations in Gua ́nica Commonwealth 

Forest and other places as more 

inventories are conducted. 

Within the subtropical moist forest 

life zone, the species has only been 

reported from the Susu ́ a Commonwealth 

Forest. C. melanocarpa has been 

reported in Susu ́ a twice in thirty years: 

in 1974 by Woodbury (Breckon and 

Kolterman 1993, p. 1) and in 2003 

(Trejo-Torres 2003, 2006). The 

occurrence of C. melanocarpa in Susu ́ a 

Commonwealth Forest was confirmed in 

2003 when Trejo-Torres found the 

species in flower at the forest (TrejoTorres 2003, 2006). Trejo-Torres 

submitted the collection voucher and 

the photography of the individual to the 

Service. Similar to the Gua ́nica 

Commonwealth Forest, we do not have 

a comprehensive population estimate 

for the Susu ́ a Commonwealth Forest 

because systematic surveys of all 

suitable habitat have not been 

conducted. This forest also is composed 

of dense vegetation, making it difficult 

to traverse. 

At the time of listing in 1999, C. 

melanocarpa was known from one 

individual located on the Pen ̃ones de 

Melones in Cabo Rojo, PR (about 16 

miles (mi) or 25 kilometers (km) from 

Gua ́nica); about 24 individuals located 


cprice-sewell on PROD1PC66 with PROPOSALS
48886 Federal Register / Vol. 71, No. 162 / Tuesday, August 22, 2006 / Proposed Rules 

on one privately owned farm in 

Halfpenny Bay near Christiansted in St. 

Croix, USVI; and an undetermined 

number of individuals on Barbuda, 

Antigua, and Guadeloupe (64 FR 13116, 

March 17, 1999; Puerto Rico Planning 

Board 1995, p. 29; Proctor 1991, p. 44; 

Breckon and Kolterman 1993, p. 1; 

USFWS 2005, p. 3). At the time of 

listing, Susu ́ a Commonwealth Forest 

was recognized as part of the historical 

distribution of the species; however, the 

occurrence within the forest could not 

be confirmed since the collection 

material deposited at the herbarium in 

San Juan was in poor condition. 

Currently, we have observed that the 

species, within U.S. jurisdiction (PR and 

USVI), occupies three discrete localities: 

(1) Approximately 100 individuals at a 

privately owned farm in Halfpenny Bay 

(Lombard 2002); (2) approximately 12 

individuals located at the Fuerte Trail in 

Gua ́nica Commonwealth Forest, 

Gua ́nica, Guayanilla, and Yauco, PR 

(Axelrod 2004; Trejo-Torres 2001, p. 

62), and (3) one individual located at 

the Susu ́ a Commonwealth Forest, 

Sabana Grande and Yauco, PR (TrejoTorres 2006). 

The site in Pen ̃ ones de Melones, 

where the species was reported in 1995, 

has experienced periodic land clearing 

activities and road construction based 

on our observations in 2002 and 2006 

(Foote 2002; Axelrod 2004; Axelrod 

2006). Several survey efforts have been 

conducted in the area by the Service 

and others; however, to date, no 

individuals of C. melanocarpa have 

been located (Foote 2002; Axelrod 2004; 

Axelrod 2006; Oikos Environmental 

Services 2005, p. 27). 

Habitat Description 

C. melanocarpa has been found to 

occur only in the subtropical dry and 

subtropical moist forest life zones. 

Based on our field observations, the 

currently occupied sites for this plant 

all fall into these forest life zones, and 

have similar habitat characteristics. The 

subtropical dry forest is considered the 

driest life zone in PR and the USVI, 

receiving a mean annual rainfall ranging 

from 24 to 40 in (60 to 100 cm). Ewel 

and Whitmore (1973, pp. 10–20) 

described the vegetation in this zone as 

deciduous on most soils with most tree 

species dropping leaves during the dry 

season. The vegetation usually consists 

of a nearly continuous single-layered 

canopy with little ground cover. The 

leaves of dry forest species are often 

succulent or coriaceous (leathery), and 

species with spines and thorns are 

common. The vegetation in these areas 

is more xerophilous (drought resistant), 

and cacti are more abundant. Some 

common tree or shrub species of 

subtropical dry forest include: Prosopis 

juliflora (mesquite or bayahonda), 

Bursera simaruba (alma ́cigo), 

Cephalocereus royenii (sebuca ́n), 

Bucida buceras (u ́ car), and Guaiacum 

officinalis (guayaca ́n). Tree heights 

usually do not exceed 49.2 ft (15 m), 

and crowns are typically broad, 

spreading, and flattened. Successional 

vegetation includes grasses, and the 

accumulated organic debris serves as 

fuel for human-induced fires (Ewel and 

Whitmore 1973, pp. 10–29). Extensive 

areas of this life zone in Puerto Rico lie 

over limestone. Within the subtropical 

dry forest life zone, the species 

currently occurs in Gua ́nica 

Commonwealth Forest in PR and 

Halfpenny Bay in St. Croix, USVI. 

In Halfpenny Bay, the currently 

known population consists of about 100 

individuals located in a dry, coastal 

plain with soils belonging to the GlynnHogensborg Unit (NRCS 1998, pp. 63–

64). The vegetation as observed by the 

Service in 2006 is composed of patches 

of dry woody vegetation (trees and 

shrubs), surrounded by grasses and C. 

melanocarpa is found under the canopy 

of these forested patches. The habitat 

characteristics of the site coincide with 

previous habitat descriptions for the 

species (Liogier and Martorell 1982, p. 

172; USFWS 2005, p. 6). The average 

annual precipitation in the area ranges 

from 30.0 to 54.7 in (762.0 to 1389.0 

mm) (NRCS 1998, pp. 63–64). 

The currently known population in 

the Gua ́nica Commonwealth Forest 

consists of approximately 12 

individuals located on a slope 

northwest of the Fuerte Trail. In 2006, 

we observed that the vegetation within 

this locality is characterized by dry 

forest with semi-closed canopy on 

limestone soils and the species is found 

under the canopy. The Gua ́nica 

Commonwealth Forest is located in 

southwestern PR in the municipalities 

of Gua ́nica, Guayanilla, and Yauco. The 

forest was designated as a forest reserve 

in 1919 and a United Nations Biosphere 

Reserve in 1981. It is managed by the 

DNER. The Gua ́nica Forest supports a 

variety of vegetation types, including 

cactus scrub, littoral forest, deciduous 

forest, and semi-evergreen forest 

(Silander et al. 1986, pp. 60–66). The 

forest is underlain by limestone 

sedimentary rocks of Tertiary Period 

origin, and soils are shallow, welldrained, and alkaline (Silander et al. 

1986, p. 51). Outcrops cover much of 

the area. Mean annual precipitation in 

the Gua ́nica area is approximately 31 in 

(790 mm). C. melanocarpa is found in 

the deciduous forest. In this forest type, 

trees often reach 33 ft (10 m). Some 

associated tree and shrub species in this 

vegetation type are Bucida buceras 

(u ́ car), Bursera simaruba (alma ́cigo), 

Coccoloba microstachya (uvillo), C. 

krugii, and Reynosia uncinata 

(chicharro ́n) (Silander et al. 1986, p. 69). 

C. melanocarpa is currently known 

from Susu ́ a Commonwealth Forest, 

which is within the subtropical moist 

life zone of Puerto Rico. The subtropical 

moist forest is delineated by a mean 

annual rainfall ranging from 39 to 86 in 

(100 to 220 cm) (Ewel and Whitmore 

1973, pp. 20–29). Vegetation 

associations within this life zone are 

characterized by trees up to 65.6 ft (20 

m) tall with rounded crowns. Many of 

the woody species are deciduous during 

the dry season and epiphytes are 

common. Some common tree or shrub 

species of subtropical moist forest 

include: Roystonea borinquena (palma 

real), Tabebuia heterophylla (roble 

blanco), Nectandra spp. (laurel), 

Erythrina poeppigiana (bucayo gigante), 

Inga vera (guaba), Inga laurina (guama ́), 

and Didymopanax morototoni (yagrumo 

macho) (Ewel and Whitmore 1973, pp. 

20–29). The Susu ́ a Commonwealth 

Forest represents not only the influence 

of a climatic transition zone (dry to 

moist), but also a combination of 

volcanic and serpentine soils. Two 

vegetation associations (dry slope forest 

and gallery forest) have been delineated 

in the subtropical moist life zone (DNR 

1976, p. 224). C. melanocarpa is found 

within the dry slope forest type. The 

climatic conditions and serpentinederived soils contribute to more xeric 

conditions and a forest structure and 

species composition very similar to the 

Gua ́nica Commonwealth Forest. In 

2001, Trejo-Torres (2003, 2006) 

rediscovered the species in the Susu ́ a 

Commonwealth Forest. One individual 

in flower was located in the forest. The 

individual was found on a rocky ravine 

west of Quebrada los Peces, at the 

southwestern corner of the public forest. 

The habitat is described as low forest on 

serpentine soil. 

In Pen ̃ ones de Melones, Cabo Rojo, 

PR, C. melanocarpa was discovered by 

Dr. F. Axelrod of the University of 

Puerto Rico in February 1995 (PRPB 

1995, p. 29). The collection voucher 

deposited in the University of Puerto 

Rico in San Juan describes the location 

in Boquero ́n Ward, Cabo Rojo, PR, at the 

upper west slopes of Pen ̃ ones de 

Melones from 164 to 295 ft (50 to 90 m) 

above sea level. The voucher described 

the habitat as dry forget on limestone, 

and the collection was made from a 7 

ft (2 m) shrub with green globose 

(spherical) fruit. The Pen ̃ ones de 

Melones area consists of several chains 

of limestone hills and drainages 


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(ravines) surrounded by mangrove 

forests, mud flats, saltwater and 

freshwater lagoons, wooded lands, 

extensive pastures, and residential 

projects. The elevation ranges from 3.3 

to 347.7 ft (1 to 106 m) above sea level. 

The limestone hill soils belong to San 

Germa ́n Series (San Germa ́n Stony Clay 

Loam or SmE) described as shallow and 

very shallow, strongly sloping and 

steep, well-drained, cobbly and stony 

soils on the limestone hills and 

mountains (Soil Conservation Survey 

1965, pp. 114–115). Average annual 

precipitation in Cabo Rojo is 

approximately 34 in (874 mm) (USFWS 

2004). 

Several vegetation surveys have been 

conducted in the Pen ̃ones de Melones 

area in the last 20 years. Dr. Axelrod 

reported 84 vascular plant species at the 

site in 1995 (PRPB 1995, pp. 25–29). In 

2005, Dr. H.E. Quintero conducted a 

flora and fauna study at the site and 

found that vegetation types are not 

uniform and there were patches of 

distinct forests, woodlands, shrub lands, 

and grasslands (Oikos Environmental 

Services 2005, p. 10). In August 2002, 

Service biologists visited the Pen ̃ ones de 

Melones area with Dr. Axelrod to 

identify the site where the species was 

discovered in 1995. The main part of the 

drainage, where C. melanocarpa was 

previously observed, showed signs of 

disturbance from periodic land clearing 

and road construction. They observed in 

August 2002 that the area had not been 

disturbed for several years and showed 

excessive growth of Acacia sp. in 

disturbed areas exposed to more 

sunlight. They noted that the area was 

covered with secondary vegetation with 

such species as Acacia farnesiana 

(aroma) and Prosopis juliflora 

(mesquite). Although the species was 

not found, Service biologists concluded 

that C. melanocarpa may be present, but 

the conditions of the habitat were not 

suitable to appropriately locate and 

identify the species (Foote 2002). 

In 2004, Dr. Axelrod provided 

comments to the Service regarding the 

occurrence of the species in the Pen ̃ ones 

de Melones area. He reported that, since 

his report of the species on the north 

side of Punta Melones, he found it once 

again in 2002 in a ravine on the south 

side of Punta Melones. He reported that, 

when he returned to the site in 2004, the 

ravine on the south had been entirely 

bulldozed. In March 2006, Service 

biologists visited these two sites on 

three occasions. The drainage area 

facing north of the Pen ̃ones de Melones 

(area reported by Axelrod in 1995) was 

searched for the species, as well as the 

hills, the slopes, and drainages facing 

south of the hills. The original site, the 

drainage area facing north, demonstrates 

vegetation characteristics consistent 

with previous land clearing activities. 

The area consists of dense woodland 

dominated by mesquite trees. The 

ravine and hillsides located to the south 

of Pen ̃ ones de Melones have also been 

cleared by bulldozing activities and 

consist of dense woodlands dominated 

by mesquite trees in the lower area and 

a solid stand of fire bush (Croton 

lucidus) on the hillsides. Based on 

Service observations, the secondary dry 

forest vegetation that supported habitat 

for C. melanocarpa has been eliminated. 

Summary of Threats 

C. melanocarpa is threatened by small 

population sizes characterized by the 

limited number of individuals and 

distribution, habitat destruction or 

modification for residential and tourist 

development, fire, and catastrophic 

natural events such as hurricanes 

(USFWS 2005, p. 8). Periodic landclearing activities have been 

documented by the Service and others 

in the Pen ̃ ones de Melones area in Cabo 

Rojo (Foote 2002; Axelrod 2004; 2006). 

The Halfpenny Bay site is a privately 

owned agricultural tract that is subject 

to intense but periodic grazing. Based 

on information gathered during our site 

visit, most of the site was burned by a 

human-induced fire in 1997 (Hamada 

2006). This population is subject to 

impacts from cattle grazing activities as 

well as pressure for a golf course 

development (USFWS 2005, p. 8). The 

limited number of individuals and 

restricted distribution make the species 

vulnerable to catastrophic events, such 

as hurricane damage and humaninduced fires. 

Previous Federal Actions 

For more information on previous 

Federal actions concerning C. 

melanocarpa, refer to the final listing 

rule (64 FR 13116, March 17, 1999). We 

listed C. melanocarpa as endangered 

under the Act on March 17, 1999 (64 FR 

13116) and approved a final recovery 

plan for this plant on July 15, 2005 

(USFWS 2005). In the 1999 final listing 

rule, we determined designation of 

critical habitat was not prudent. On 

September 17, 2004, the Center for 

Biological Diversity filed a lawsuit 

against the Department of the Interior 

and the Service [Center for Biological 

Diversity v. Norton (CV–00293-JDB) 

(D.D.C.)], challenging the failure to 

designate critical habitat for C. 

melanocarpa. In a settlement agreement 

dated June 3, 2005, the Service agreed 

to reevaluate the prudency of critical 

habitat for this species and, if prudent, 

submit a proposed designation of 

critical habitat to the Federal Register 

by August 15, 2006, and a final 

designation by August 15, 2007. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as: (i) The specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) Essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided under the Act are no 

longer necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species at the time it 

was listed must first have features that 

are essential to the conservation of the 

species. Critical habitat designations 

identify, to the extent known using the 

best scientific data available, habitat 

areas that provide essential life cycle 

needs of the species (areas on which are 

found the primary constituent elements 

(PCEs), as defined at 50 CFR 424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management or 

protection. Thus, we do not include 

areas where existing management is 

sufficient to conserve the species. [As 

discussed below, such areas may also be 

excluded from critical habitat.] 

Furthermore, when the best available 

scientific data do not demonstrate that 

the conservation needs of the species 

require additional areas, we will not 

designate critical habitat in areas 


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outside the geographical area occupied 

by the species at the time of listing. 

However, an area that was not known to 

be occupied at the time of listing but is 

currently occupied by the species will 

likely be essential to the conservation of 

the species and, therefore, typically 

included in the critical habitat 

designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (P.L. 106–554; 

H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific data available. They require 

Service biologists to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Prudency Determination 

Section 4(a)(3) of the Act and its 

implementing regulations (50 CFR 

424.12) require that, to the maximum 

extent prudent and determinable, we 

designate critical habitat at the time a 

species is listed as endangered or 

threatened. Our regulations at 50 CFR 

424.12(a)(1) state that the designation of 

critical habitat is not prudent when one 

or both of the following situations exist: 

(1) The species is threatened by taking 

or other activity and the identification 

of critical habitat can be expected to 

increase the degree of threat to the 

species; or (2) such designation of 

critical habitat would not be beneficial 

to the species. In our March 17, 1999, 

final rule (64 FR 13116), we determined 

that designating critical habitat was not 

prudent for C. melanocarpa because it 

would result in no known benefit to the 

species and could further pose a threat 

to the species through publication of 

site-specific localities. 

We are already working with Federal 

and State agencies, private individuals, 

and organizations in carrying out 

conservation activities for C. 

melanocarpa, conducting surveys for 

additional occurrences, and assessing 

habitat conditions. However, critical 

habitat designation may be beneficial by 

providing additional information to 

individuals, local and State 

governments, and other entities engaged 

in long-range planning, because areas 

with features essential to the 

conservation of the species are clearly 

delineated and, to the extent currently 

feasible, the primary constituent 

elements of the habitat essential for 

conservation of the species are 

specifically identified. Furthermore, 

although the low numbers of this plant 

make it unlikely that its populations 

could withstand even moderate 

collecting pressure or vandalism, we do 

not have specific evidence of taking, 

collection, vandalism, trade, or 

unauthorized human disturbance and 

thus, we cannot say that designation 

would increase the likelihood of take. 

Accordingly, we withdraw our 

previous determination that the 

designation of critical habitat will not 

benefit C. melanocarpa and will 

increase the degree of threat to the 

species. We determine that the 

designation of critical habitat is prudent 

for this species. At this time, we have 

sufficient information necessary to 

identify specific areas that meet the 

definition of critical habitat and are, 

therefore, proposing critical habitat for 

C. melanocarpa. 

Methods 

As required by section 4(b) of the Act, 

we use the best scientific data available 

in determining areas that were occupied 

at the time of listing that contain the 

features that are essential to the 

conservation of C. melanocarpa and 

other areas that are essential to the 

conservation of this species. We 

reviewed the approach to conservation 

of the species undertaken by local, 

State, and Federal agencies operating 

within the species’ range since its 

listing, as well as the actions necessary 

for this plant’s conservation as 

identified in the final recovery plan 

(USFWS 2005). We reviewed available 

information that pertains to the habitat 

requirements of this species. This 

information included: data from our 

files that we used for listing the species; 

peer-reviewed scientific publications; 

biological field surveys and reports; 

resource agencies’ and universities’

unpublished status reports; information 

and GIS maps (forest boundaries, 

topography, drainages, roads) from the 

Puerto Rico Planning Board and Puerto 

Rico Department of Natural and 

Environmental Resources; soil maps and 

manuals from Natural Resources 

Conservation Service (former Soil 

Conservation Service); U.S. Geological 

Survey topographic maps (scale 

1:20,000); recent aerial photography; 

unpublished data and observations 

collected by Service biologists during 

recent field surveys; forest management 

plans from local agencies; the C. 

melanocarpa recovery plan; information 

received from and discussions with 

local (PR and USVI) botanists and 

researchers working with the species 

and its habitat; and herbarium 

collections. We also made several recent 

visits to all currently known localities 

(Halfpenny Bay, Pen ̃ ones de Melones, 

Gua ́nica Commonwealth Forest, and 

Susu ́ a Commonwealth Forest) to gather 

abundance and distribution data and 

conduct habitat observations. 

Information from all sources was 

utilized to determine the species’ range 


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and habitat features needed to support 

life history functions essential to the 

conservation of the species. 

Fewer than 115 individuals are 

known to occur in three discrete 

localities throughout PR and the USVI, 

and no additional sightings for the 

species have been reported in other 

areas. The locality where the majority of 

the individuals occur (about 100 plants) 

is a relatively small (50 ac, or 20 ha) 

privately owned cattle grazing parcel 

under current threat of development 

pressure in St. Croix. The two other 

localities are publicly owned and 

support the only known individuals of 

C. melanocarpa in PR. In the three 

areas, C. melanocarpa is associated with 

dry woody vegetation occupying the 

understory strata. The conservation of C. 

melanocarpa depends upon the 

protection of existing populations and 

the maintenance of ecological functions 

within these sites, including vegetation 

and soils characteristics essential to the 

conservation of the species. Therefore, 

we considered, but are not proposing 

any areas outside the geographical area 

presently occupied by the species. 

Primary Constituent Elements (PCEs) 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, we are required to base critical 

habitat determinations on the best 

scientific data available and to consider 

within areas occupied by the species at 

the time of listing those physical and 

biological features that are essential to 

the conservation of the species (PCEs), 

and that may require special 

management considerations or 

protection. These include, but are not 

limited to, space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for reproduction, 

germination, or seed dispersal; and 

habitats that are protected from 

disturbance or are representative of the 

historic geographical and ecological 

distributions of a species. 

The specific PCEs required for C. 

melanocarpa are derived from the 

biological needs of the species, and 

include those habitat components 

needed for growth and development, 

flower production, pollination, seed set 

and fruit production, and genetic 

exchange. Although at present time the 

information on the species’ biological 

and ecological needs is limited (USFWS 

2005, p. 7), habitat characteristics 

supporting all three currently known 

localities are known. Additionally, 

individuals in all three localities have 

been documented in fruit or flower. The 

presence of sexual reproduction 

indicates that the species has the 

potential to produce viable populations, 

with the assistance of appropriate 

conservation strategies. 

C. melanocarpa is currently known 

from both the subtropical dry forest and 

subtropical moist forest life zones of PR 

and the USVI. Except for one locality, 

the historical and current range of the 

species is within dry forest life zone. 

The Susu ́ a Commonwealth Forest is the 

only locality that is not dry forest; 

however, based on our observations 

because of its serpentine soils, the 

vegetation structure and species 

composition are similar to dry forest 

habitat (Breckon and Garcı ́a 2001; 

Silander et al. 1986, p. 243). In all three 

localities, the species is under the 

canopy of trees and shrubs, and all 

localities in PR are forested hills 

associated with either limestone or 

serpentine soils. The locality in St. 

Croix, based on Service observations, is 

a coastal plain with patches or thickets 

of trees and shrubs characteristic of dry 

forest habitat. 

Within the subtropical dry and moist 

forest life zones, C. melanocarpa has 

been reported from four discrete sites 

within the U.S. Caribbean: Halfpenny 

Bay, Pen ̃ones de Melones, the Gua ́nica 

Commonwealth Forest, and the Susu ́ a 

Commonwealth Forest. However, the 

species presently occupies only 

Halfpenny Bay in St. Croix, USVI, the 

Gua ́nica Commonwealth Forest, PR, and 

the Susu ́ a Commonwealth Forest, PR. 

Vegetation at the Halfpenny Bay site 

comprised of dry thicket scrub 

vegetation, dominated by grasses with 

patches of trees and shrubs (USFWS 

2005, pp. 6–7). Based on Service 

observations during a site visit 

conducted on March 1 and 2, 2006, C. 

melanocarpa is an understory species, 

currently growing below trees and 

shrubs characteristic of dry forest 

habitat. Associated flora include 

introduced grass species, Caesalpinia 

coriaria (dividive), Tamarindus indica 

(tamarind), Castela erecta (goat-bush), 

Acacia turtuosa (acacia), Cassia 

poplyphylla (retama prieta), Leucaena 

leucocephala (tan-tan), Randia aculeata 

(box-briar or tintillo), and Cordia alba 

(white manjack). Soils in the Halfpenny 

Bay site have been described as 

belonging to the Glynn-Hogensborg unit, 

which consists of very deep, well 

drained, nearly level to moderately 

steep soils (NRCS 1998, pp. 63–64). 

We observed the vegetation within the 

Gua ́nica Commonwealth Forest locality 

in 2006 as dry forest with semi-closed 

canopy on limestone soils. The species 

is found under the canopy. In this forest 

type, trees often reach 33 ft (10 m). 

Some associated dry forest vegetation in 

this locality include uvillo (Coccoloba 

microstachya), C. diversifolia (uvilla), 

Thouinia portoricensis (quebracho), 

Guettarda elliptica (cucubano liso), 

alhelı ́, Croton lucidus, Savia sessiliflora 

(amansa guapo), Pithecellobium unguiscati (un ̃ a de gato), Guaiacum sanctum 

(guayaca ́n), Leucaena leucocephala 

(zarcilla), among other common species 

(Trejo-Torres 2001, pp. 59–63). 

Susu ́ a Commonwealth Forest is 

located in southwestern Puerto Rico in 

the municipalities of Yauco and Sabana 

Grande. The Susu ́ a Forest lies between 

the humid Central Cordillera and the 

dry coastal plains typical of the south 

coast. The forest represents not only the 

influence of a climatic transition zone 

(dry to moist), but also a combination of 

volcanic and serpentine soils 

(Department of Natural Resources 1976, 

p. 24). The majority of the forest (90 

percent) is underlain by serpentine 

outcrop. The rest of the forest (10 

percent) has nine other soil types that 

belong to the Caguabo-Mu ́ caro 

association (Silander et al. 1986, p. 224– 

226; Soil Conservation Survey 1975, p. 

9). These soils are described as slightly 

leached, loamy and clay, sticky and 

plastic soils underlain by hard or 

weathered rock at a depth of less than 

30 inches (Soil Conservation Survey 

1975, p. 9). Serpentine-derived soils 

create stressful conditions for the 

establishment and growth of plants, and 

their associated floras are characterized 

by high diversity and endemism 

(Ceden ̃ o-Maldonado and Breckon 1996, 

p. 348). Two vegetation associations 

(dry slope forest and gallery forest) have 

been delineated in the subtropical moist 

life zone (Department of Natural 

Resources 1976, p. 224). The trees are 

slender, open-crowned, and usually less 

than 39.4 ft (12m) tall. The forest floor 

is open because the excessively drained 

soil supports little herbaceous growth 

(Ewel and Whitmore 1973, p. 25). C. 

melanocarpa is found in the dry slope 

forest type. The climatic conditions and 

serpentine-derived soils contribute to 

more xeric conditions and a forest 

structure and species composition 

similar to the Gua ́nica Commonwealth 

Forest based on observations by the 

Service and others (Silander et al. 1986, 

pp. 239–245; Breckon and Garcı ́a 2001). 

Primary Constituent Elements for C. 

melanocarpa 

In accordance with our regulations, 

we are required to identify the known 

physical and biological features (PCEs) 

essential to the conservation of C. 

melanocarpa. All proposed critical 

habitat for C. melanocarpa is occupied, 

within the species’ current and historic 


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geographic range, and contains 

sufficient PCEs to support at least one 

life history function. 

Based on our current knowledge of 

the species and the requirements of the 

habitat to sustain the essential life 

history functions of the species, as 

discussed above, we have determined 

that C. melanocarpa’s PCEs are: 

(1) Single-layered canopy forest with 

little ground cover and open forest floor 

that supports patches of dry vegetation 

with grasses, and 

(2) Well to excessively drained, 

limestone and serpentine-derived soils 

(including soils of the San Germa ́n, 

Nipe, and Rosario series and Glynn and 

Hogensborg series). 

Open forest floor, canopy, and little 

ground cover are important 

requirements for an understory species 

like C. melanocarpa. Canopy provides 

shade and open forest floor reduces 

competition by herbaceous species. 

Limestone and serpentine derived soils 

that are well to excessively drained 

provide essential nutrients to this plant 

and sustain the dry conditions needed 

by the species. The proposed critical 

habitat in this rule has been determined 

to contain sufficient PCEs to support at 

least one life history function of C. 

melanocarpa. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(1)(A) of 

the Act, we use the best scientific and 

commercial data available in 

determining areas that contain the 

features that are essential to the 

conservation of C. melanocarpa. We 

began our analysis by considering the 

historic distribution of the species and 

sites occupied by the species at the time 

of listing. The 1999 listing rule (64 FR 

13116) identified two localities within 

U.S. jurisdiction as then occupied by 

the species: A 50-ac (20-ha) privately 

owned parcel in Halfpenny Bay in St. 

Croix, USVI; and a 330-ac (132-ha) 

property in Pen ̃ ones de Melones in Cabo 

Rojo, PR. Both localities are found 

within the subtropical dry forest life 

zone and support habitat for the species. 

The final listing rule identified two 

historic collections: one in Gua ́nica, PR, 

in 1886, and one in Susu ́ a 

Commonwealth Forest, PR, in 1974. The 

Gua ́nica Commonwealth Forest is 

within the subtropical dry forest life 

zone, and Susu ́ a Commonwealth Forest 

is considered within the moist forest life 

zone. However, the Susu ́ a 

Commonwealth Forest supports slopes 

with dry forest vegetation due to the 

climatic conditions and soil type. Both 

forests are similar in forest structure and 

species composition. Although both 

forests support habitat for C. 

melanocarpa, the presence of the 

species within these two forests was not 

corroborated at the time of listing. The 

rule noted that the Susu ́ a specimen 

could not be confirmed as C. 

melanocarpa because of its poor 

condition (64 FR13116, March 17, 1999; 

Breckon and Kolterman 1993, p. 1). 

We reviewed the approved final 

recovery plan to identify new records of 

occupancy of the species, biological 

information, and habitat characteristics 

(USFWS 2005, pp. 3–8). The plan 

identifies both downlisting and 

delisting criteria and emphasizes the 

importance of protecting existing 

populations within the range of this 

plant to prevent its extinction, decrease 

the threat to the species associated with 

catastrophic events, and to obtain sexual 

(seeds) and asexual (cuttings) 

propagation material to establish a 

propagation program for the species. 

The plan includes information provided 

by a peer reviewer during the comment 

period showing a recent collection of C. 

melanocarpa located at the Gua ́nica 

Commonwealth Forest. This forest is 

located within the previously known 

distribution of the species and supports 

a historic collection of C. melanocarpa. 

A voucher of this collection is located 

in the herbarium of the University of 

Puerto Rico (UPR 2006). 

We also reviewed other information 

(such as sighting records from 

herbariums, DNER maps, and office 

files) and scientific literature and 

reports to identify additional 

information available on species range 

and biological needs. The Service 

contacted all researchers that have 

reported the species in recent years and 

visited all reported sites to confirm 

sightings. Herbarium records for 

Gua ́nica and Pen ̃ ones de Melones 

describe the species growing in low 

forest or the understory of dry forest 

vegetation in limestone soils. The 

herbarium voucher for the species in 

Susu ́ a describes the species growing in 

low forest on serpentine soils (TrejoTorres 2003). Vegetation characteristics, 

climatic conditions, and soil type 

coincide with the previously described 

habitat for the species. We confirmed 

sightings in St. Croix and Gua ́nica 

Commonwealth Forest. Although 

additional forested areas within the dry 

forest life zone and the moist forest life 

zone are present in PR and USVI, no 

additional sightings for the species have 

been reported in these other areas. 

An area was considered for 

designation where it supported a 

population or occurrence and either (1) 

Possesses sufficient PCEs to support at 

least on life history function and was 

occupied at the time of listing or (2) is 

currently occupied. Information 

gathered by the Service and data 

collected during field visits resulted in 

this proposal regarding only three 

discrete areas in the U.S. Caribbean. 

The Halfpenny Bay area was occupied 

at the time of listing and continues to be 

occupied currently. This area contains 

features that are essential to the 

conservation of C. melanocarpa that 

may require special management or 

protection. Another area that was 

occupied at the time of listing, located 

in Pen ̃ ones de Melones in Cabo Rojo, 

PR, is not currently occupied by the 

species and has lost PCEs due to 

periodic land clearing activities with 

heavy machinery; it is not being 

proposed as critical habitat for the 

species due to lack of PCEs and lack of 

conservation value for the species. 

The Gua ́nica and Susu ́ a 

Commonwealth forests have historical 

records of the species, and are currently 

occupied. Both areas are currently 

occupied by the species based on recent 

reports (Trejo-Torres 2001, p. 62; TrejoTorres 2003; 2006) and site visits 

conducted by the Service in 2006. 

These three areas (Halfpenny Bay and 

both Commonwealth forests) represent 

all known occurrences of this species in 

the wild within U.S. jurisdiction 

(currently known to be fewer than 115 

individuals). Protecting individuals in 

the three localities is vital to maintain 

genetic representation of all known 

localities in the U.S. Caribbean. We 

have determined that it is essential to 

prevent extinction of this plant, by 

protecting and secure existing 

populations, establishing a propagation 

program, augmenting existing 

populations with propagated 

individuals, and establishing new selfsustainable populations in protected 

areas (USFWS 2005). We believe all 

three currently occupied areas presently 

contain essential habitat features for the 

species. 

We reviewed existing management 

and conservation plans and 

management for C. melanocarpa to 

determine if any areas identified above 

as containing features essential to the 

conservation of the species did not meet 

the definition of critical habitat 

according to section 3(5)(A) of the Act. 

On the basis of this review, we believe 

that essential features within both 

Commonwealth Forests are adequately 

protected under the management of 

Puerto Rico DNER and the master plan 

for the Forests and do not require 

special management or protection. 

While these areas, which collectively 

total 14,575 ac (5,898 ha) contain the 

habitat features that are essential to the 


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conservation of the subspecies, they are 

not being included in this proposal (see 

Application of section 3(5)(A) of the Act 

section) because they do not meet the 

definition of critical habitat under 

section 3(5)(A) of the Act. 

When determining proposed critical 

habitat boundaries, we made every 

effort to avoid including within the 

boundaries of the map contained in this 

proposed rule areas already developed 

such as buildings, paved areas, and 

other structures in areas where the PCEs 

for C. melanocarpa are not present. The 

scale of the maps prepared under the 

parameters for publication within the 

Code of Federal Regulations may not 

reflect the exclusion of such developed 

areas. Any such structures and the land 

under them inadvertently left inside 

critical habitat boundaries shown on the 

maps of this proposed rule have been 

excluded by text in the proposed rule 

and are not proposed for designation as 

critical habitat. Therefore, Federal 

actions limited to these areas would not 

trigger section 7 consultation, unless 

they affect the species or primary 

constituent elements in adjacent critical 

habitat. To the extent feasible, we will 

continue, with the assistance of other 

State, Federal, and private researchers, 

to conduct surveys, research, and 

conservation actions on the species and 

its habitat in areas designated and not 

designated as critical habitat. We 

anticipate that the boundaries of the 

mapped units may be refined based on 

additional information received during 

the public comment period. If 

additional information becomes 

available on the species’ biology, 

distribution, and threats, we will 

evaluate the need to revise critical 

habitat, or refine the boundaries of 

critical habitat as appropriate. Sites that 

are occupied by this plant that are not 

being designated for critical habitat will 

continue to receive protection under the 

Act’s section 7 jeopardy standard where 

a Federal nexus may occur (see ‘‘Critical 

Habitat’’ section). 

We are proposing to designate critical 

habitat on lands in need of special 

management or protection and on those 

that we have determined to be currently 

occupied by the species or occupied at 

the time of listing and which contain 

sufficient PCEs to support life history 

functions essential for the conservation 

of the species. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing 

contain the PCEs that may require 

special management considerations or 

protection. As discussed in detail here 

and in the unit descriptions below, we 

find that all of the PCEs in Halfpenny 

Bay may require special management 

considerations or protection due to 

threats to the species or its habitat. Such 

management considerations and 

protections include: fencing off forest 

patches to exclude cattle, developing 

fire-breaks adjacent to existing roads 

and farm boundaries during dry season, 

establishing conservation agreements 

with landowners to protect individuals 

within the property, collecting seeds 

and cuttings to establish a propagation 

program, and establishing additional 

patches of forest vegetation to plant 

additional individuals to augment 

existing populations within the site 

Proposed Critical Habitat Designation 

We are proposing Halfpenny Bay in 

Christiansted, St. Croix, USVI as critical 

habitat for C. melanocarpa. This critical 

habitat unit described below constitutes 

our best assessment at this time of areas 

we determined to be occupied at the 

time of listing, containing the primary 

constituent elements, and which may 

require special management. All of the 

areas identified in this rule as occupied, 

including those in the Commonwealth 

Forests managed by DNER that do not 

meet the definition of critical habitat 

(see Application of Section 3(5)(A) of 

the Act section), are necessary to 

conserve the species. Appropriate 

management and protection will 

support reproduction, recruitment, 

adaptation to catastrophic events and 

genetic diversity (Primack 2000, pp. 

124–133; Falk et al. 1996, pp. 113–119) 

as identified using the best available 

data. 

Table 1 provides the approximate area 

(acres, hectares) and land ownership of 

lands determined to meet the definition 

of critical habitat and proposed. 

TABLE 1.—LANDS DETERMINED TO MEET THE DEFINITION OF CRITICAL HABITAT FOR C. Melanocarpa, LAND OWNERSHIP, 

APPROXIMATE AREA (ACRES, HECTARES) 

Critical habitat unit, location Land ownership Definitional area 

acres (hectares) 

Halfpenny Bay St. Croix, USVI ................................................................................................................... Private .............. 50 (20.23) 

Total ..................................................................................................................................................... ........................... 50 (20.23) 

Below we provide a brief description 

and rationale for the proposed unit of 

critical habitat for C. melanocarpa. 

Halfpenny Bay, St. Croix 

The Halfpenny Bay critical habitat 

unit consists of an approximately 50-ac 

(20.23-ha) area on a privately owned 

agricultural tract located in a dry coastal 

plain about 2.48 miles (4 km) south of 

Christiansted, St. Croix, USVI. The area 

is delimited by Road 62 to the north, 

South Shore Road to the west, the local 

road to Halfpenny Bay to the east, and 

by the 10-meter (m) (33 ft) topographic 

contour line to the south. This unit 

encompasses the habitat features 

essential to the conservation of C. 

melanocarpa and does not contain 

manmade structures, such as existing 

private homes or barns. The species is 

located within dry thickets of scrub 

vegetation in this unit, which is 

dominated by grasses with patches of 

trees and shrubs. The unit contains 

PCEs 1 and 2 and is important to 

conserving the genetic diversity of this 

plant. Since this is the locality with the 

highest number of individuals (100 

plants), we believe that it should be 

considered the core population to 

maintain genetic representation of this 

plant in the U.S. Caribbean. Propagation 

material, both sexual and asexual, 

should be collected from this 

population to augment the number of 

individuals in existing populations and 

establish new sustainable populations 

in protected areas in PR and the USVI. 

At the time of the 1999 listing, the 

population was estimated at 24 

individuals, but in 2002 the population 

was estimated at 100 individuals by a 

Service biologist (Lombard 2002). The 

presence of the species at this site was 

confirmed by the Service in March 

2006. This population is the only one 

known in the U.S. Virgin Islands, has 

the highest number of individuals, and 

it has been documented in reproductive 

condition (with fruit and flowers). The 

site is currently threatened by periodic 

but intense grazing, human-induced 

fires, and potential of development for 

a tourist project (USFWS 2005, p. 8), 


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and may require special management 

considerations or protection as 

discussed in the ‘‘Special Management 

Considerations or Protections’’ section 

above. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. In our 

regulations at 50 CFR 402.02, we define 

destruction or adverse modification as 

‘‘a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for both the survival and 

recovery of a listed species. Such 

alterations include, but are not limited 

to, alterations adversely modifying any 

of those physical or biological features 

that were the basis for determining the 

habitat to be critical.’’ However, recent 

decisions by the 5th and 9th Circuit 

Court of Appeals have invalidated this 

definition (see Gifford Pinchot Task 

Force v. U.S. Fish and Wildlife Service, 

378 F. 3d 1059 (9th Cir 2004) and Sierra 

Club v. U.S. Fish and Wildlife Service et 

al., 245 F.3d 434, 442F (5th Cir 2001)). 

Pursuant to current national policy and 

the statutory provisions of the Act, 

destruction or adverse modification is 

determined on the basis of whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would remain functional (or 

retain the current ability for the primary 

constituent elements to be functionally 

established) to serve the intended 

conservation role for the species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

to evaluate their actions with respect to 

any species that is proposed or listed as 

endangered or threatened and with 

respect to its critical habitat, if any is 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. This is a procedural 

requirement only. However, once a 

proposed species becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

7(a)(2) apply to any Federal action. The 

primary utility of the conference 

procedures is to maximize the 

opportunity for a Federal agency to 

adequately consider proposed species 

and critical habitat and avoid potential 

delays in implementing their proposed 

action because of the section 7(a)(2) 

compliance process, should those 

species be listed or the critical habitat 

designated. 

Under conference procedures, the 

Service may provide advisory 

conservation recommendations to assist 

the agency in eliminating conflicts that 

may be caused by the proposed action. 

The Service may conduct either 

informal or formal conferences. Informal 

conferences are typically used if the 

proposed action is not likely to have any 

adverse effects to the proposed species 

or proposed critical habitat. Formal 

conferences are typically used when the 

Federal agency or the Service believes 

the proposed action is likely to cause 

adverse effects to proposed species or 

critical habitat, inclusive of those that 

may cause jeopardy or adverse 

modification. 

The results of an informal conference 

are typically transmitted in a conference 

report, while the results of a formal 

conference are typically transmitted in a 

conference opinion. Conference 

opinions on proposed critical habitat are 

typically prepared according to 50 CFR 

402.14, as if the proposed critical 

habitat were designated. We may adopt 

the conference opinion as the biological 

opinion when the critical habitat is 

designated, if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

CFR 402.10(d)). As noted above, any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If a species is listed or critical habitat 

is designated, 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 such a species or 

to destroy or adversely modify its 

critical habitat. If a Federal action may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

(action agency) must enter into 

consultation with us. As a result of this 

consultation, compliance with the 

requirements of section 7(a)(2) will be 

documented through the Service’s 

issuance of: (1) A concurrence letter for 

Federal actions that may affect, but are 

not likely to adversely affect, listed 

species or critical habitat; or (2) a 

biological opinion for Federal actions 

that may affect, but are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in jeopardy to a listed species or 

the destruction or adverse modification 

of critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. 

‘‘Reasonable and prudent alternatives’’

are defined at 50 CFR 402.02 as 

alternative actions identified during 

consultation that can be implemented in 

a manner consistent with the intended 

purpose of the action, that are consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, that are 

economically and technologically 

feasible, and that the Director believes 

would avoid jeopardy to the listed 

species or destruction or adverse 

modification of critical habitat. 

Reasonable and prudent alternatives can 

vary from slight project modifications to 

extensive redesign or relocation of the 

project. Costs associated with 

implementing a reasonable and prudent 

alternative are similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where a new 

species is listed or critical habitat is 

subsequently designated that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action or such 

discretionary involvement or control is 

authorized by law. Consequently, some 

Federal agencies may request 

reinitiation of consultation with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect subsequently listed species 

or designated critical habitat or 

adversely modify or destroy proposed 

critical habitat. 

Federal activities that may affect C. 

melanocarpa or its designated critical 

habitat will require section 7 

consultation under the Act. Activities 

on State, Tribal, local or private lands 

requiring a Federal permit (such as a 

permit from the Corps under section 404 

of the Clean Water Act or a permit 

under section 10(a)(1)(B) of the Act from 

the Service) or involving some other 

Federal action (such as funding from the 

Federal Highway Administration, 

Federal Aviation Administration, or the 

Federal Emergency Management 

Agency) will also be subject to the 

section 7 consultation process. Federal 

actions not affecting listed species or 

critical habitat, and actions on State, 

Tribal, local or private lands that are not 

federally funded, authorized, or 

permitted, do not require section 7 

consultations. 


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Application of the Jeopardy and 

Adverse Modification Standards for 

Actions Involving Effects to C. 

melanocarpa and Its Critical Habitat 

Jeopardy Standard 

Prior to and following designation of 

critical habitat, the Service has applied 

an analytical framework for C. 

melanocarpa jeopardy analyses that 

relies on the importance of core area 

populations to the survival and recovery 

of C. melanocarpa. The section 7(a)(2) 

analysis is focused not only on these 

populations but also on the habitat 

conditions necessary to support them. 

The jeopardy analysis usually 

expresses the survival and recovery 

needs of C. melanocarpa in a qualitative 

fashion without making distinctions 

between what is necessary for survival 

and what is necessary for recovery. 

Generally, if a proposed Federal action 

is incompatible with the viability of the 

affected core area population(s), 

inclusive of associated habitat 

conditions, a jeopardy finding is 

warranted because of the relationship of 

each core area population to the 

survival and recovery of the species as 

a whole. 

Adverse Modification Standard 

The analytical framework described 

in the Director’s December 9, 2004, 

memorandum is used to complete 

section 7(a)(2) analyses for Federal 

actions affecting C. melanocarpa critical 

habitat. The key factor related to the 

adverse modification determination is 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the PCEs 

to be functionally established) to serve 

the intended conservation role for the 

species. Generally, the conservation role 

of C. melanocarpa critical habitat units 

is to support viable core area 

populations. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the species. 

Activities that may destroy or 

adversely modify critical habitat are 

those that alter the PCEs to an extent 

that the conservation value of critical 

habitat for C. melanocarpa is 

appreciably reduced. Activities that, 

when carried out, funded, or authorized 

by a Federal agency, may affect critical 

habitat and therefore result in 

consultation for C. melanocarpa 

include, but are not limited to: 

(1) Actions that would reduce or 

degrade dry thicket scrub areas 

dominated by patches of trees and 

shrubs in the Halfpenny Bay area. Such 

activities could include vegetation 

clearing, intensive and extensive cattle 

grazing activities, and fire. Dry forest 

species in the Caribbean are not fireresistant species. 

(2) Earth movement activities using 

heavy machinery within critical habitat 

that may result in changes in quantity 

and quality of soils within designated 

critical habitat. 

We consider the proposed critical 

habitat to contain features essential to 

the conservation of C. melanocarpa and 

to be in the geographic range of the 

species. The Halfpenny Bay area was 

occupied by the species at the time of 

listing (64 FR 13116, March 17, 1999; 

Proctor 1991, pp. 43–44; Breckon and 

Kolterman 1993, p. 1). Federal agencies 

already consult with us on activities in 

areas currently occupied by C. 

melanocarpa, or if the species may be 

affected by the action, to ensure that 

their actions do not jeopardize the 

continued existence of C. melanocarpa. 

Application of Section 3(5)(A) of the Act 

Section 3(5)(A) of the Act defines 

critical habitat as the specific areas 

within the geographic area occupied by 

the species at the time of listing on 

which are found those physical and 

biological features (i) Essential to the 

conservation of the species and (ii) that 

may require special management 

considerations or protection. Therefore, 

areas within the geographical area 

occupied by the species at the time of 

listing that do not contain the features 

essential for the conservation of the 

species are not, by definition, critical 

habitat. Similarly, areas within the 

geographic area occupied by the species 

at the time of listing that do not require 

special management or protection also 

are not, by definition, critical habitat. 

There are multiple ways to provide 

management for species habitat. 

Statutory and regulatory frameworks 

that exist at a local level can provide 

such protection and management, as can 

lack of pressure for change, such as 

areas too remote for anthropogenic 

disturbance. Finally, State, local, or 

private management plans as well as 

management under Federal agencies 

jurisdictions can provide protection and 

management to avoid the need for 

designation of critical habitat. When we 

consider a plan to determine its 

adequacy in protecting habitat, we 

consider whether the plan, as a whole 

will provide the same level of protection 

that designation of critical habitat 

would provide. The plan need not lead 

to exactly the same result as a 

designation in every individual 

application, as long as the protection it 

provides is equivalent, overall. In 

making this determination, we examine 

whether the plan provides management, 

protection, or enhancement of the PCEs 

that is at least equivalent to that 

provided by a critical habitat 

designation, and whether there is a 

reasonable expectation that the 

management, protection, or 

enhancement actions will continue into 

the foreseeable future. Each review is 

particular to the species and the plan, 

and some plans may be adequate for 

some species and inadequate for others. 

We consider a current plan to provide 

adequate management or protection if it 

meets three criteria: (1) The plan is 

complete and provides the same or 

better level of protection from adverse 

modification or destruction than that 

provided through a consultation under 

section 7 of the Act; (2) there is a 

reasonable expectation that the 

conservation management strategies and 

actions will be implemented based on 

past practices, written guidance, or 

regulations; and (3) the plan provides 

conservation strategies and measures 

consistent with currently accepted 

principles of conservation biology. 

Gua ́nica and Susu ́a Commonwealth 

Forests: Commonwealth of Puerto Rico 

We have determined that the lands 

containing the features essential to the 

conservation of C. melanocarpa within 

the Gua ́nica and Susu ́ a Commonwealth 

forests do not meet the definition of 

critical habitat under section 3(5)(A) of 

the Act as those features do not require 

special management or protections. As 

such, they are not being included in this 

proposal. Both forests are public lands 

owned by the Commonwealth of Puerto 

Rico and managed by the DNER. 

The DNER developed a master plan 

for the Commonwealth forests of Puerto 

Rico in 1976. The master plan identified 

soil and land types, climate, wildlife, 

vegetation, land use, recreation 

opportunities, and future research needs 

for all Commonweath forests, including 

Gua ́nica and Susu ́ a forests. The master 

plan also identified management 

recommendations to address identified 

issues for each forest unit. 

In Gua ́nica, the master plan identified 

special management considerations in 

accordance with the uniqueness of the 

forest, proposed to manage the forest 

and associated vegetation types for nonconsumptive use by the public, and 

reserved and managed the entire unit as 


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a wildlife sanctuary (DNR 1976, pp. 56–

58). Because of the forest condition, it 

was designated as a United Biosphere 

Reserve in 1981 by the United Nations 

Educational, Scientific and Cultural 

Organization (UNESCO). 

For Susu ́ a, the master plan also 

identified special management 

considerations, including locating 

representative areas of all plant 

communities and rare and endangered 

species and limiting public use on these 

areas; not issuing new permits for 

transmission lines; and delineating all 

unique areas and preserving them in 

their natural condition (DNR 1976, pp. 

230–232). 

Both forests are currently managed as 

wildlife sanctuaries, protecting wildlife 

and plants in perpetuity and allowing 

only non-consumptive use by the public 

in designated areas and trails. Active 

management includes developing and 

maintaining fire breaks, conducting 

prescribed burning adjacent to roads to 

reduce fuel load, removing exotic plant 

species along roads, and promoting 

scientific data collection, and 

conducting outreach and education 

activities within adjacent communities. 

Forest management also provides 

opportunities for scientific research and 

the use of existing trails for passive 

recreation and education. The Gua ́nica 

Forest also provides for beach use. 

These current management activities 

have not been identified as threats for C. 

melanocarpa. 

The Gua ́nica and Susu ́ a 

Commonwealth forests and adjacent 

lands are designated as Critical Wildlife 

Areas (CWA) by the Commonwealth of 

Puerto Rico (DNER 2005, pp. 211 and 

221). 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 assisting permitting agencies 

in precluding negative impacts as a 

result of permit approvals or 

endorsements (DNER 2005, pp. 2–3). 

Since 1984, the Service and DNER 

have a signed cooperative agreement 

pursuant to section 6(c) of the Act, 

establishing a partnership agreement for 

the purpose of implementing an 

endangered and threatened fish, wildlife 

and plants species conservation 

program in the Commonwealth of 

Puerto Rico. Both parties agree that 

programs of the Commonwealth of 

Puerto Rico are designed to assist 

resident endangered and threatened 

species; it is their mutual desire to work 

in harmony for the common purpose of 

planning, developing and conducting 

programs to protect, manage and 

enhance the populations of all resident 

endangered and threatened fish, wildlife 

and plants within the Commonwealth of 

Puerto Rico. 

The DNER approved laws and 

regulations to protect threatened and 

endangered species within lands under 

their jurisdiction. In 1999, the 

Commonwealth of Puerto Rico approved 

Law Number 241, Wildlife Law of the 

Commonwealth of Puerto Rico (Ley de 

Vida Silvestre del Estado Libre 

Asociado de Puerto Rico—Ley Nu ́m. 

241 del 15 Ago. 1999). The purpose of 

this law is to protect, conserve, and 

enhance native and migratory wildlife 

species; declare all wildlife species 

within its jurisdiction as the property of 

Puerto Rico; regulate permits; regulate 

hunting activities; and regulate exotic 

species. In 2004, the DNER approved 

Commonwealth of Puerto Rico’s 

Regulation Number 6766, which 

regulates the management of threatened 

and endangered species in Puerto Rico 

(Reglamento para Regir el Manejo de las 

Especies Vulnerables y en Peligro de 

Extincio ́n en el Estado Libre Asociado 

de Puerto Rico—Nu ́m. 6766 del 11 de 

Feb 2004). C. melanocarpa has been 

included in the list of protected species. 

Article 2.06 of this regulation prohibits 

collecting, cutting, and removing 

(among other activities) listed plant 

individuals within the jurisdiction of 

PR. 

Threats identified for C. melanocarpa 

on the Gua ́nica and Susu ́ a 

Commonwealth forests are humaninduced fires during dry season and 

cutting of vegetation for trail and 

powerline maintenance. The DNER has 

regulatory mechanisms to protect 

individuals of C. melanocarpa from 

these threats within the forest 

boundaries, and forest managers are 

aware of the occupied localities within 

the forests. We believe that management 

guidelines for both forests, current local 

laws and regulations and the close 

coordination and excellent working 

partnership with DNER will adequately 

address identified threats to C. 

melanocarpa, features essential to its 

conservation, and its habitat on DNER 

lands. Therefore, we do not believe that 

special management or protection is 

required for C. melanocarpa and its 

primary constituent elements. 

Recent, more extensive surveys 

conducted in Gua ́nica Commonwealth 

Forest have expanded the known range 

of other federally listed species such, as 

bariaco (Trichilia triacantha) and palo 

de rosa (Ottoschulzia rhodoxylon), and 

other State-protected species all 

previously known for only a few 

individuals within the forest. These 

surveys were conducted in areas not 

previously accessed and are a result of 

a graduate student’s thesis work that has 

not been published yet. As stated earlier 

in this rule, past collections exist for 

Gua ́nica Commonwealth Forest. We 

believe additional occurrences of C. 

melanocarpa will be found in both 

forests. For example, when Trejo-Torres 

went to Gua ́nica in 2001, specifically to 

search for and identify the species, he 

accomplished confirmation on an 

individual. When Service biologists 

returned to Gu ́nica Commonwealth 

Forest with this species’ expert in 2006 

to specifically search for this plant, they 

found 12 additional individuals in the 

vicinity. 

We believe that extensive surveys in 

the Susu ́ a Commonwealth Forest would 

also result in additional sightings of the 

species. It has been the Service’s 

experience that, if extensive surveys are 

conducted additional individuals or 

populations may be found. For example, 

the endemic plant Calliandra locoensis 

was discovered in the Susu ́ a Forest in 

1991 (Garcı ́a and Kolterman 1992, pp. 

57–60), and only one population was 

known at the time (Breckon and 

Kolterman 1994, p. CL–1). Recent 

additional survey efforts have resulted 

in three additional localities and about 

1,000 individuals (Gonza ́lez 1998, pp. 

41–42; Breckon and Kolterman 2000). 

Protection of such areas as the 

Commonwealth forests conveys stability 

of forest development, since most forest 

land in Puerto Rico was destroyed for 

agriculture. Forest reserves like 

Gua ́nica, protected since 1919, provide 

the necessary structure to support the 

conservation of the species. 

Thus on the basis that Susu ́ a and the 

Gua ́nica Commonwealth Forests are 

being adequately managed as wildlife 

sanctuaries by DNER, where they are 

protecting wildlife and plants in 

perpetuity and allowing only nonconsumptive use by the public in 

designated areas and trails, we have 

determined that features essential to the 

conservation of C. melanocarpa on 

lands within these forests do not require 

special management considerations or 

protection. As such, these lands do not 

meet the definition of critical habitat for 

C. melanocarpa as defined in section 

3(5)(A) of the Act and are not included 

in the proposal. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-Federal 

landowners. More than 60 percent of the 

United States is privately owned 

(National Wilderness Institute 1995) and 

at least 80 percent of endangered or 


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threatened species occur either partially 

or solely on private lands (Crouse et al. 

2002). Stein et al. (1995) found that only 

about 12 percent of listed species were 

found almost exclusively on Federal 

lands (90 to 100 percent of their known 

occurrences restricted to Federal lands) 

and that 50 percent of federally listed 

species are not known to occur on 

Federal lands at all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners (Wilcove and Chen 1998; 

Crouse et al. 2002; James 2002). 

Building partnerships and promoting 

voluntary cooperation of landowners is 

essential to understanding the status of 

species on non-Federal lands and is 

necessary to implement recovery actions 

such as reintroducing listed species, 

habitat restoration, and habitat 

protection. 

Many non-Federal landowners derive 

satisfaction from contributing to 

endangered species recovery. The 

Service promotes these private-sector 

efforts through the Four Cs 

philosophy—conservation through 

communication, consultation, and 

cooperation. This philosophy is evident 

in Service programs such as Habitat 

Conservation Plans (HCPs), Safe 

Harbors, Candidate Conservation 

Agreements, Candidate Conservation 

Agreements with Assurances, and 

conservation challenge cost-share. Many 

private landowners, however, are wary 

of the possible consequences of 

encouraging endangered species to their 

property, and there is mounting 

evidence that some regulatory actions 

by the Federal government, while wellintentioned and required by law, can 

(under certain circumstances) have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996; Bean 2002; 

Conner and Mathews 2002; James 2002; 

Koch 2002; Brook et al. 2003). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability, resulting in 

anti-conservation incentives because 

maintaining habitats that harbor 

endangered species represents a risk to 

future economic opportunities (Main et 

al. 1999; Brook et al. 2003). 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7 of the Act, can 

sometimes be counterproductive to its 

intended purpose. According to some 

researchers, the designation of critical 

habitat on private lands significantly 

reduces the likelihood that landowners 

will support and carry out conservation 

actions (Main et al. 1999; Bean 2002; 

Brook et al. 2003). The magnitude of 

this negative outcome is greatly 

amplified in situations where active 

management measures (such as 

reintroduction, fire management, 

control of invasive species) are 

necessary for species conservation (Bean 

2002). 

Cooperative conservation is the 

foundation of the Service’s actions to 

protect species, and the Service has 

many tools by which it can encourage 

and implement partnerships for 

conservation. These tools include 

conservation grants, funding for 

Partners for Fish and Wildlife Program, 

the Coastal Program, and cooperativeconservation challenge cost-share 

grants. Our Private Stewardship Grant 

Program and Landowner Incentive 

Program provide assistance to private 

landowners in their voluntary efforts to 

protect threatened, imperiled, and 

endangered species, including the 

development and implementation of 

Habitat Conservation Plans. 

Conservation agreements with nonFederal landowners (such as HCPs, 

contractual conservation agreements, 

easements, and stakeholder-negotiated 

State regulations) enhance species 

conservation by extending species 

protections beyond those available 

through section 7 consultations. In the 

past decade, we have encouraged nonFederal landowners to enter into 

conservation agreements, based on a 

view that we can achieve greater species 

conservation on non-Federal land 

through such partnerships than we can 

through other methods (61 FR 63854; 

December 2, 1996). 

Economic Analysis 

An analysis of the economic impacts 

of proposing critical habitat for C. 

melanocarpa is being prepared. We will 

announce the availability of the draft 

economic analysis as soon as it is 

completed, at which time we will seek 

public review and comment. At that 

time, copies of the draft economic 

analysis will be available for 

downloading from the Internet at http:// 

www.southeast.fws.gov or by contacting 

the Caribbean Fish and Wildlife Office 

directly (see ADDRESSES). 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), and based 

on our implementation of the Office of 

Management and Budget’s Final 

Information Quality Bulletin for Peer 

Review, dated December 16, 2004, we 

will seek the expert opinions of at least 

five appropriate and independent peer 

reviewers regarding the science in this 

proposed rule. The purpose of such 

review is to ensure that our critical 

habitat designation is based on 

scientifically sound data, assumptions, 

and analyses. We will send copies of 

this proposed rule to these peer 

reviewers immediately following 

publication in the Federal Register. We 

will invite these peer reviewers to 

comment during the public comment 

period on the specific assumptions and 

conclusions regarding the proposed 

designation of critical habitat. 

We will consider all comments and 

information received during the 

comment period on this proposed rule 

during preparation of a final 

rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests for public hearings 

must be made in writing within 45 days 

of publication of this proposal in the 

Federal Register. We intend to schedule 

a public hearing on this proposal, if any 

are requested, once the draft economic 

analysis is available so that we can 

receive public comment on the draft 

economic analysis and proposed rule 

simultaneously. However, we can 

schedule a public hearing prior to that 

time, if specifically requested. We will 

announce the date, time, and place of 

the hearing in the Federal Register and 

local newspapers at least 15 days prior 

to the first hearing. 

Clarity of the Rule 

Executive Order 12866 requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical jargon that interferes with the 

clarity? (3) Does the format of the 

proposed rule (grouping and order of 

the sections, use of headings, 

paragraphing, and so forth) aid or 


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reduce its clarity? (4) Is the description 

of the notice in the SUPPLEMENTARY

INFORMATION section of the preamble 

helpful in understanding the proposed 

rule? (5) What else could we do to make 

this proposed rule easier to understand? 

Send a copy of any comments on how 

we could make this proposed rule easier 

to understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 

Washington, DC 20240. You may e-mail 

your comments to this address: 

Exsec@ios.doi.gov. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but it is not anticipated to 

have an annual effect on the economy 

of $100 million or more or affect the 

economy in a material way. Due to the 

timeline for publication in the Federal 

Register, the Office of Management and 

Budget (OMB) has not formally 

reviewed this rule. We are preparing a 

draft economic analysis of this proposed 

action, which will be available for 

public comment, to determine the 

economic consequences of designating 

the specific area as critical habitat. This 

economic analysis also will be used to 

determine compliance with Executive 

Order 12866, Regulatory Flexibility Act, 

Small Business Regulatory Enforcement 

Fairness Act, and Executive Order 

12630. 

Within these areas, the types of 

Federal actions or authorized activities 

that we have identified as potential 

concerns are listed above in the 

‘‘Adverse Modification Standard’’

section. The availability of the draft 

economic analysis will be announced in 

the Federal Register and in local 

newspapers so that it is available for 

public review and comments. When it is 

completed, the draft economic analysis 

can be obtained from the internet Web 

site at http://www.southeast.fws.gov or 

by contacting the Caribbean Fish and 

Wildlife Office directly (see ADDRESSES). 

Further, Executive Order 12866 

directs Federal Agencies promulgating 

regulations to evaluate regulatory 

alternatives (Office of Management and 

Budget, Circular A–4, September 17, 

2003). Pursuant to Circular A–4, once it 

has been determined that the Federal 

regulatory action is appropriate, the 

agency will need to consider alternative 

regulatory approaches. Since the 

determination of critical habitat is a 

statutory requirement pursuant to the 

Act, we must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts pursuant to 

section 4(b)(2) of the Act. Based on the 

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat providing that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

species. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combination 

thereof, in a designation constitutes our 

regulatory alternative analysis. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, the Service lacks the 

available economic information 

necessary to provide an adequate factual 

basis for the required RFA finding. 

Therefore, the RFA finding is deferred 

until completion of the draft economic 

analysis prepared in accordance with 

section 4(b)(2) of the Act and Executive 

Order 12866. This draft economic 

analysis will provide the required 

factual basis for the RFA finding. Upon 

completion of the draft economic 

analysis, the Service will publish a 

notice of availability of the draft 

economic analysis of the proposed 

designation and reopen the public 

comment period for the proposed 

designation. The Service will include 

with the notice of availability, as 

appropriate, an initial regulatory 

flexibility analysis or a certification that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities accompanied 

by the factual basis for that 

determination. The Service has 

concluded that deferring the RFA 

finding until completion of the draft 

economic analysis is necessary to meet 

the purposes and requirements of the 

RFA. Deferring the RFA finding in this 

manner will ensure that the Service 

makes a sufficiently informed 

determination based on adequate 

economic information and provides the 

necessary opportunity for public 

comment. 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211) on 

regulations that significantly affect 

energy supply, distribution, and use. 

Executive Order 13211 requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. This 

proposed rule to designate critical 

habitat for C. melanocarpa is a 

significant regulatory action under 

Executive Order 12866 as it may raise 

novel legal and policy issues. However, 

it is not expected to significantly affect 

energy supplies, distribution, or use. 

Therefore, this action is not a significant 

energy action and no Statement of 

Energy Effects is required. We will 

further evaluate this in our draft 

economic analysis and revise this 

assessment if appropriate. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, 

Tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 


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assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) A condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because the publicly 

owned units are owned by the 

Commonwealth of Puerto Rico, which 

does not fit the definition of ‘‘small 

governmental jurisdiction.’’ As such, a 

Small Government Agency Plan is not 

required. We will, however, further 

evaluate this issue as we conduct our 

economic analysis and revise this 

assessment if appropriate. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with DOI and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

proposed critical habitat designation 

with appropriate State resource agencies 

in Puerto Rico and the U.S. Virgin 

Islands. The designation of critical 

habitat in areas currently occupied by C. 

melanocarpa imposes no additional 

restrictions to those currently in place 

and, therefore, has little incremental 

impact on State and local governments 

and their activities. The designation 

may have some benefit to these 

governments in that the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the conservation of the 

species are specifically identified. While 

making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. We propose 

designating critical habitat in 

accordance with the provisions of the 

Act. This proposed rule uses standard 

property descriptions and identifies the 

primary constituent elements within the 

designated area to assist the public in 

understanding the habitat needs of C. 

melanocarpa. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Endangered Species Act of 1973, as 

amended. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 116 S. Ct. 698 

(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, and the Department of 

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. We 

have determined that there are no Tribal 

lands occupied at the time of listing 

containing the features essential for the 

conservation of C. melanocarpa and no 

Tribal lands that are unoccupied areas 

that are essential for the conservation of 

C. melanocarpa. Therefore, critical 

habitat for C. melanocarpa has not been 

proposed for designation on Tribal 

lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Caribbean Fish and Wildlife Office (see 

ADDRESSES). 

Author(s) 

The primary authors of this package 

are the staff of Caribbean Fish and 

Wildlife Office (see FOR FURTHER

INFORMATION CONTACT section). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted. 

2. In § 17.12(h), revise the entry for 

‘‘Catesbaea melanocarpa’’ under 

‘‘FLOWERING PLANTS’’ to read as 

follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 


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48898 Federal Register / Vol. 71, No. 162 / Tuesday, August 22, 2006 / Proposed Rules 

Species 

Historic range Family Status When listed Critical 

habitat 

Special 

rules Scientific name Common name 

* * * * * * * 

FLOWERING PLANTS 

* * * * * * * 

Catesbaea melanocarpa None ................. U.S.A. (PR, VI), Antigua, 

Barbuda, Guadalupe.

Rubiaceae ........ E ............ 657 17.96(a) NA 

* * * * * * * 

3. In § 17.96, amend paragraph (a) by 

adding an entry for Catesbaea 

melanocarpa in alphabetical order 

under Family Rubiaceae to read as 

follows: 

§ 17.96 Critical habitat—plants. 

(a) * * * 

Family Rubiaceae: Catesbaea 

melanocarpa (no common name) 

(1) Critical habitat is depicted on the 

map below for Halfpenny Bay, St. Croix, 

U.S. Virgin Islands. 

(2) The primary constituent elements 

(PCEs) of critical habitat for C. 

melanocarpa are the habitat 

components that provide: 

(i) Single-layered canopy forest with 

little ground cover and open forest floor 

that supports patches of dry vegetation 

with grasses, and 

(ii) Well to excessively drained, 

limestone and serpentine-derived soils 

(including soils of the San Germa ́n, 

Nipe, and Rosario series and Glynn and 

Hogensborg series). 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, airports, roads, and other 

paved areas) and the land on which they 

are located existing on the effective date 

of this rule and not containing one or 

more of the primary constituent 

elements. 

(4) Critical habitat map. Data layers 

were created by overlaying habitats that 

contain at least two of the PCEs, as 

defined in paragraph (2) of this section, 

on U.S. Geological Survey (USGS) 

topographic maps (UTM 20, NAD 27). 

(5) Halfpenny Bay, St. Croix, U.S. 

Virgin Islands. 

(i) General description: The 

Halfpenny Bay unit consists of 

approximately 50-ac (20.23-ha) on 

privately owned property located about 

2.48 mi (4 km) south of Christiansted, 

St. Croix, U.S. Virgin Islands. The area 

is delimited by Road 62 to the north, 

South Shore Road to the west, the local 

road to Halfpenny Bay to the east, and 

by the 33-ft (10-m) topography contour 

line to the south. This unit encompasses 

the habitat features essential to the 

conservation of C. melanocarpa within 

Estate Halfpenny, Christiansted, St. 

Croix, and does not contain any 

manmade structures. 

(ii) Coordinates: From Christiansted 

USGS 1:24,000 quadrangle map, St. 

Croix land bounded by the following 

UTM 20 NAD 27 coordinates (E,N): 

319053.46, 1959358.06; 319363.69, 

1959455.15; 319476.85, 1959132.82; 

319505.42, 1959046.53; 319551.84, 

1958916.00; 319534.20, 1958929.38; 

319519.91, 1958929.38; 319498.48, 

1958938.91; 319484.19, 1958946.05; 

319458.00, 1958943.67; 319434.19, 

1958934.15; 319405.61, 1958927.00; 

319372.28, 1958924.62; 319372.28, 

1958915.10; 319391.33, 1958905.57; 

319412.76, 1958900.81; 319446.09, 

1958893.67; 319462.76, 1958893.67; 

319484.19, 1958884.14; 319500.86, 

1958874.62; 319534.20, 1958850.80; 

319548.49, 1958831.75; 319558.01, 

1958812.70; 319558.01, 1958793.65; 

319534.20, 1958774.60; 319512.77, 

1958767.46; 319477.05, 1958753.17; 

319438.95, 1958750.79; 319407.99, 

1958750.79; 319391.33, 1958753.17; 

319381.80, 1958746.03; 319355.61, 

1958748.41; 319332.84, 1958757.39; 

319322.93, 1958759.64; 319311.66, 

1958776.76; 319308.51, 1958787.58; 

319310.36, 1958805.56; 319306.26, 

1958826.78; 319291.31, 1958843.66; 

319271.56, 1958860.13; 319253.53, 

1958870.94; 319231.78, 1958879.38; 

319220.24, 1958896.22; 319208.81, 

1958913.94; 319199.67, 1958924.80; 

319172.23, 1958965.37; 319153.20, 

1958993.68; 319141.29, 1959019.87; 

319124.63, 1959053.21; 319115.10, 

1959077.02; 319105.58, 1959103.22; 

319250.83, 1959146.08; 319203.21, 

1959269.90; 319059.77, 1959230.54; 

319057.97, 1959244.96; 319058.87, 

1959263.88; 319066.98, 1959282.81; 

319064.72, 1959303.09; 319059.77, 

1959323.82; 319055.57, 1959353.25; 

319053.46, 1959358.06. 

(iii) Note: Map of Halfpenny Bay 

follows: 

BILLING CODE 4310–55–P 


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* * * * * Dated: August 15, 2006. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 06–7029 Filed 8–21–06; 8:45 am] 

BILLING CODE 4310–55–C 


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