49212 Federal Register / Vol. 72, No. 166 / Tuesday, August 28, 2007 / Rules and Regulations 

Overall width means the linear 

distance between the exteriors of the 

sidewalls of an inflated tire, including 

elevations due to labeling, decorations, 

or protective bands or ribs. 

Passenger car tire means a tire 

intended for use on passenger cars, 

multipurpose passenger vehicles, and 

trucks, that have a gross vehicle weight 

rating (GVWR) of 10,000 pounds or less. 

Ply means a layer of rubber-coated 

parallel cords. 

Ply separation means a parting of 

rubber compound between adjacent 

plies. 

Pneumatic tire means a mechanical 

device made of rubber, chemicals, fabric 

and steel or other materials, that, when 

mounted on an automotive wheel, 

provides the traction and contains the 

gas or fluid that sustains the load. 

Radial ply tire means a pneumatic tire 

in which the ply cords that extend to 

the beads are laid at substantially 90 

degrees to the centerline of the tread. 

Reinforced tire means a tire designed 

to operate at higher loads and at higher 

inflation pressures than the 

corresponding standard tire. 

Rim means a metal support for a tire 

or a tire and tube assembly upon which 

the tire beads are seated. 

Section width means the linear 

distance between the exteriors of the 

sidewalls of an inflated tire, excluding 

elevations due to labeling, decoration, 

or protective bands. 

Sidewall means that portion of a tire 

between the tread and bead. 

Sidewall separation means the parting 

of the rubber compound from the cord 

material in the sidewall. 

Test rim means the rim on which a 

tire is fitted for testing, and may be any 

rim listed as appropriate for use with 

that tire. 

Tread means that portion of a tire that 

comes into contact with the road. 

Tread rib means a tread section 

running circumferentially around a tire. 

Tread separation means pulling away 

of the tread from the tire carcass. 

Treadwear indicators (TWI) means the 

projections within the principal grooves 

designed to give a visual indication of 

the degrees of wear of the tread. 

Wheel-holding fixture means the 

fixture used to hold the wheel and tire 

assembly securely during testing. 

* * * * * 

S5.2 Performance requirements. 

Each tire shall conform to each of the 

following: 

* * * * * 

(c) Its maximum permissible inflation 

pressure shall be 240, 280, 300, 340, or 

350 kPa. 

* * * * * 

S5.5 Tire markings. Except as 

specified in paragraphs (a) through (i) of 

S5.5, each tire must be marked on each 

sidewall with the information specified 

in S5.5(a) through (d) and on one 

sidewall with the information specified 

in S5.5(e) through (i) according to the 

phase-in schedule specified in S7 of this 

standard. The markings must be placed 

between the maximum section width 

and the bead on at least one sidewall, 

unless the maximum section width of 

the tire is located in an area that is not 

more than one-fourth of the distance 

from the bead to the shoulder of the tire. 

If the maximum section width falls 

within that area, those markings must 

appear between the bead and a point 

one-half the distance from the bead to 

the shoulder of the tire, on at least one 

sidewall. The markings must be in 

letters and numerals not less than 0.078 

inches high and raised above or sunk 

below the tire surface not less than 

0.015 inches. 

* * * * * 

S5.5.4 For passenger car tires, if the 

maximum inflation pressure of a tire is 

240, 280, 300, 340, or 350 kPa, then: 

(a) Each marking of that inflation 

pressure pursuant to S5.5(c) must be 

followed in parenthesis by the 

equivalent psi, rounded to the next 

higher whole number; and 

(b) Each marking of the tire’s 

maximum load rating pursuant to 

S5.5(d) in kilograms must be followed 

in parenthesis by the equivalent load 

rating in pounds, rounded to the nearest 

whole number. 

* * * * * 

S6.1.1.1.5 Readjust the tire pressure 

to that specified in S6.1.1.1.2. 

* * * * * 

S6.1.2 Performance Requirements. 

The actual section width and overall 

width for each tire measured in 

accordance with S6.1.1.2 shall not 

exceed the section width specified in a 

submission made by an individual 

manufacturer, pursuant to S4.1.1(a) or 

in one of the publications described in 

S4.1.1(b) for its size designation and 

type by more than: 

(a) (For tires with a maximum 

permissible inflation pressure of 32, 36, 

or 40 psi) 7 percent, or 

(b) (For tires with a maximum 

permissible inflation pressure of 240, 

280, 300, 340 or 350 kPa) 7 percent or 

10 mm (0.4 inches), whichever is larger. 

* * * * * 

S6.2.1.1.2 Condition the assembly at 

32 to 38 °C for not less than 3 hours. 

* * * * * 

S6.4.1.1.2 After the tire is deflated to 

the appropriate test pressure in 

S6.4.1.1.1 at the completion of the 

endurance test, condition the assembly 

at 32 to 38 °C for not less than 2 hours. 

* * * * * 

S6.6 Tubeless tire bead unseating 

resistance. Each tire shall comply with 

the requirements of S5.2 of § 571.109. 

For light truck tires, the maximum 

permissible inflation pressure to be used 

for the bead unseating test is as follows: 

Load Range C ............................... 260 kPa. 

Load Range D ............................... 340 kPa. 

Load Range E ............................... 410 kPa. 

For light truck tires with a nominal 

cross section greater than 295 mm (11.5 

inches), the maximum permissible 

inflation pressure to be used for the 

bead unseating test is as follows: 

Load Range C ............................... 190 kPa. 

Load Range D ............................... 260 kPa. 

Load Range E ............................... 340 kPa. 

* * * * * 

Issued: August 22, 2007. 

Stephen R. Kratzke, 

Associate Administrator for Rulemaking. 

[FR Doc. E7–16934 Filed 8–27–07; 8:45 am] 

BILLING CODE 4910–59–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: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (the Service), are 

designating critical habitat for the 

endangered plant Catesbaea 

melanocarpa (no common name) under 

the Endangered Species Act of 1973, as 

amended (Act). Approximately 10.5 

acres (ac) (4.3 hectares (ha)) fall within 

the boundaries of the critical habitat 

designation for C. melanocarpa in one 

unit located in Halfpenny Bay in 

Christiansted, St. Croix, U.S. Virgin 

Islands (USVI). 

DATES: This rule becomes effective on 

September 27, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Field Supervisor, Caribbean Fish and 

Wildlife Office, Road 301 Km. 5.1, P.O. 

Box 491, Boquero ́n, PR 00622; 

telephone 787–851–7297; facsimile 

787–851–7440. 

SUPPLEMENTARY INFORMATION: 


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Federal Register / Vol. 72, No. 166 / Tuesday, August 28, 2007 / Rules and Regulations 49213 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

rule. For more information on Catesbaea 

melanocarpa, please refer to the final 

listing rule published in the Federal 

Register on March 17, 1999 (64 FR 

13116), and the proposed rule to 

designate critical habitat published in 

the Federal Register on August 22, 2006 

(71 FR 48883). 

Previous Federal Actions 

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 Catesbaea 

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. For 

more information on previous Federal 

actions concerning C. melanocarpa, 

refer to the proposed critical habitat 

designation published in the Federal 

Register on August 22, 2006 (71 FR 

48883), and in our notice of availability 

of the draft economic analysis published 

on March 14, 2007 (72 FR 11819). This 

final rule complies with the settlement 

agreement. 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed designation 

of critical habitat for Catesbaea 

melanocarpa in the proposed rule 

published on August 22, 2006 (71 FR 

48883), and again in a subsequent notice 

of the availability of a draft economic 

analysis published in the Federal 

Register on March 14, 2007 (72 FR 

11819). We also contacted appropriate 

Federal, Commonwealth, and Territorial 

agencies; scientific organizations; local 

researchers; and other interested parties 

and invited them to comment on the 

proposed rule. 

The first comment period on the 

proposed designation opened August 

22, 2006 and closed on October 23, 

2006. During that time, we received 

comments from three individuals: One 

from a peer reviewer working for the 

USVI government, and two from private 

individuals. We received one letter 

during the second comment period, 

opened from March 14 to April 13, 

2007, which covered both the proposed 

designation and the draft economic 

analysis. This comment letter was 

submitted by one of the private 

individuals who provided comments 

during the first comment period. In 

total, we received four comment letters 

from three individuals. One commenter 

supported the designation of critical 

habitat and one opposed the 

designation. The third commenter did 

not indicate support or opposition for 

the designation. We reviewed the 

comments for substantive issues and 

new information regarding critical 

habitat. We grouped the comments by 

issue and we addressed them in the 

following summary. We incorporated 

information into the final rule as 

appropriate. We did not receive requests 

for public hearings. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from seven knowledgeable individuals 

with scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles. We received a response from 

one peer reviewer representing the USVI 

Department of Planning and Natural 

Resources, Division of Fish and Wildlife 

(DPNR–FW). The peer reviewer did not 

mention if the DPNR–FW generally 

concurred or not with our methods and 

conclusions, but provided additional 

information and suggestions to improve 

the final critical habitat rule. 

Peer Reviewer Comments 

Comment 1: The peer reviewer 

expressed concern that the description 

of the habitat in the proposed rule had 

lumped the habitat on USVI and Puerto 

Rico (PR) together, making it seem that 

there is much more habitat available for 

the plants. The peer reviewer suggested 

that the habitat description be 

differentiated between the islands. 

Our Response: The proposed rule 

published in the Federal Register on 

August 22, 2006 (71 FR 48883) 

described the habitat of Catesbaea 

melanocarpa in PR and the USVI 

separately. The description of the 

habitat in the Halfpenny Bay area was 

described based on the site-specific soil 

type and the vegetation as observed by 

the Service in 2006. The habitat 

characteristics of the site coincide with 

the previous habitat description 

referenced in the scientific literature. 

However, the introductory paragraph of 

the Habitat Description section provided 

a general discussion of the main 

characteristics of the subtropical dry 

forest life zone as described by Ewel and 

Whitmore (1973, pp. 10–20). The 

subtropical dry forest life zone covers 

the Halfpenny Bay area, as well as other 

areas where the species has been 

reported in the past and is currently 

present in Puerto Rico (Gua ́nica 

Commonwealth Forest and Pen ̃ ones de 

Melones). The general description of the 

life zone does not substitute for the sitespecific habitat description we provided 

in the proposed rule. Furthermore, the 

primary constituent elements (PCEs) for 

C. melanocarpa are based on the habitat 

components that are essential for the 

conservation of the species and not 

based on the life zones. 

Comment 2: The peer reviewer 

mentioned information received from 

Mr. Rudy O’Reilly, District 

Conservationist for the U.S. Department 

of Agriculture National Resources 

Conservation Service, about two 

individual plants of Catesbaea 

melanocarpa previously observed on a 

property located to the west of the 

proposed designation. The commenter 

specified that he did not investigate the 

sighting report to establish if the species 

is still present in the area. However, the 

commenter suggested including this 

new locality in the designation of 

critical habitat for C. melanocarpa. 

Our Response: We contacted Mr. 

O’Reilly, District Conservationist for the 

U.S. Department of Agriculture Natural 

Resources Conservation Service (NRCS) 

and requested additional information 

about the sighting mentioned by the 

peer reviewer. Mr. O’Reilly is the 

botanist who rediscovered the species in 

St. Croix in 1988. Mr. O’Reilly provided 

written information on January 23, 

2007, and confirmed the information 

provided by the peer reviewer. Mr. 

O’Reilly explained that one plant of C. 

melanocarpa was observed during a 

casual drive-through on the west side of 

the South Shore Road (eastern boundary 

of the proposed critical habitat unit) in 

April, 2006. The area where the 

individual was observed is located 

outside of the proposed designation. Mr. 

O’Reilly mentioned that this location 

was the site where he first discovered 

the two individuals of C. melanocarpa 

reported in 1988, but that had been 

destroyed by a hurricane before the 

species was listed. 

At the time of listing, we described 

the population near Christiansted, St. 

Croix consisting of about 24 individual 

plants. This information was obtained 

from Breckon and Kolterman (1993, p. 

2). These authors made reference to the 

individuals they found in July, 1992; 

and revisited in December, 1992, and 

June, 1993. They described the locality 

east of the existing road (the other side 

of the road in reference to the site where 


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49214 Federal Register / Vol. 72, No. 166 / Tuesday, August 28, 2007 / Rules and Regulations 

O’Reilly discovered the original 

individuals in 1988). The authors 

estimated the population as about 24 

individuals, described the size of the 

plants and documented the presence of 

flowers and fruits. When the Service 

was gathering information to draft the 

recovery plan for the species in 2002, 

we surveyed the population reported by 

Breckon and Kolterman (1993, pp.1–2), 

collected GPS points and estimated the 

population to be 100 individuals 

(Lombard 2002). The site where this 

population is found is located east of 

the existing road and corresponds to the 

site identified in the proposed rule 

(Halfpenny Bay area). Although Breckon 

and Kolterman (1993, pp. 1–2) made 

referenced to the individuals Mr. 

O’Reilly discovered in 1988, they 

mentioned that individuals were 

affected by Hurricane Hugo in 1989. 

These authors did not mentioned that 

they visited the individuals reported in 

the west side of the road and did not 

provide information supporting that the 

individuals were alive at the time they 

conducted their studies. 

Based on the above information and 

the information currently available to 

us, the individual referenced by the peer 

reviewer was not present at the time of 

listing. At the time of listing, the 

individuals first reported by Mr. 

O’Reilly in 1988 were considered 

extirpated by previous hurricanes. Mr. 

O’Reilly in his letter of January 23, 2007 

confirmed the information that the two 

individuals he discovered in 1988 were 

destroyed by Hurricane Marilyn, and as 

a consequence the site was not 

considered occupied at the time of 

listing. 

Since the area was not occupied at the 

time of listing we would have to find it 

essential to the conservation of the 

species in order to designate it as 

critical habitat. Because the only 

evidence of the existence of the species 

at this location is a casual drive-by, and 

no surveys have recently been 

conducted in this area, we do not have 

enough information at this time to 

determine that the area is essential to 

the conservation of the species. 

Comment 3: The peer reviewer 

suggested mentioning in the rule that 

Catesbaea melanocarpa is protected by 

the Territorial law. 

Our Response: In the proposed rule 

for the designation of critical habitat for 

Catesbaea melanocarpa published in 

the Federal Register on August 22, 

2006, we discussed topics directly 

relevant to the designation of critical 

habitat. However, we incorporated by 

reference the information of the listing 

final rule we published in the Federal 

Register on March 17, 1999 (64 FR 

13116). In the listing rule, under the 

‘‘Summary of Factors Affecting the 

Species’’ section, we stated that the 

territory of the USVI had amended its 

regulations to protect endangered and 

threatened wildlife and plants and 

considered Catesbaea melanocarpa to 

be endangered. In the listing rule, we 

referred to prohibitions by this local 

regulation under the ‘‘Available 

Conservation Measures’’ section. 

Public Comments Related to the 

Designation 

Comment 1: The commenter believes 

that the area to be designated as critical 

habitat was based on the ownership of 

private property rather than the location 

of the species. The commenter provided 

a color aerial photo of the site. 

Our Response: The Halfpenny Bay is 

currently occupied by approximately 

100 individuals of C. melanocarpa. 

With the assistance of the aerial photo 

provided by the commenter, we reexamined the boundaries of the 

proposed area and removed from the 

designation highly degraded areas 

dominated by pastures located south of 

Road 62. We also redefined the 

boundaries utilizing GPS-located 

sightings of individuals collected by 

Service personnel within the property 

(Lombard 2002). The areas within the 

redefined boundaries meet the criteria 

we used to designate critical habitat. We 

also confirmed that the area occupied by 

the species contains the PCEs essential 

for the conservation of the species. 

Therefore, we reduced the size of the 

designated critical habitat to 10.5 ac (4.3 

ha). 

Comment 2: The commenter 

mentioned information received from 

Mr. Rudy O’Reilly about one Catesbaea 

melanocarpa plant previously observed 

in a property located to the west of the 

proposed designation. The commenter 

recommended we conduct additional 

research and prepare the planned 5-year 

review of the status of the species before 

finalizing the proposed designation of 

critical habitat. 

Our Response: The presence of one 

individual in a site located west of the 

proposed designation was also 

documented by the peer reviewer. We 

responded to comments under Peer 

Reviewer Comment 2. We initiated the 

5-year review process for Catesbaea 

melanocarpa on September 27, 2006 (71 

FR 56545), and requested information 

and comments from the public. The 

purpose of the 5-year review is to ensure 

that the classification of species as 

threatened or endangered of the Lists of 

Endangered and Threatened Wildlife 

and Plants (50 CFR 17.11 and 17.12) is 

accurate. A 5-year review is an 

assessment of the best scientific and 

commercial data available at the time of 

the review. It does not include 

additional research on the species. 

Comment 3: The commenter believes 

that the designation will destroy the 

property’s economic value and result in 

a ‘‘taking’’ of private property. 

Our Response: The designation of 

critical habitat does not mean that 

private lands would be taken by the 

Federal Government or continued 

private uses would not be allowed. The 

designation of critical habitat does not 

affect private lands if there is no Federal 

nexus in other words, if the landowner 

does not need a Federal permit or other 

Federal approval, or Federal funding, 

for his activities, then the designation 

will impose no Federal restriction on 

his property. 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 the species or to destroy or 

adversely modify its critical habitat. All 

regulatory effect of the designation of 

critical habitat comes from this 

requirement. Therefore, if a Federal 

permit or approval is not required, or if 

Federal funding is not involved, there 

will be no regulatory burden for actions 

on private lands. 

If there is a Federal action that may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

must enter into consultation with us. 

When we issue a biological opinion we 

can include measures to reduce take of 

the species, or measures to offset any 

actions that would jeopardize the 

existence of the species or adversely 

modify critical habitat. Such measures 

must be consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, and must also be 

economically and technologically 

feasible. 

The parcel that includes the critical 

habitat designation is currently zoned as 

District 2: Low Intensity, which permits 

low-density residential construction and 

small-scale agriculture. This zoning 

category allows a maximum of four 

residential units per acre for single and 

multi-family construction and a 

maximum of six units per acre for 

larger-scale condominium or hotel 

development. This zoning category does 

not prohibit development of the site. 

We anticipate that any potential 

development could go forward on this 

site even if there was a Federal nexus. 

If we consulted on the site were would 

likely propose recommended 

conservation measures for the plants. 

We have identified likely recommended 


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Federal Register / Vol. 72, No. 166 / Tuesday, August 28, 2007 / Rules and Regulations 49215 

measures, which would include 

establishing a buffer zone of 20 meters 

(m) (66 feet (ft)) around the existing 

population as a setback from the 

development. The buffer zone is 

included in the designation, and the 

total area to be designated is 

approximately 10.5 ac (4.3 ha). Given 

the size of the parcel and location of the 

plants, it is unlikely that the setback 

would significantly affect development 

plans. 

Public Comments Related to the 

Economic Analysis 

Comment 1: The commenter 

requested an extension of the public 

comment period opened on March 14, 

2007, for a minimum of 60 days to 

provide additional time for the owner of 

the land to effectively respond to the 

proposed rule. 

Our Response: We provided two 

comment periods, totaling 90 days, for 

the designation of critical habitat for 

Catesbaea melanocarpa between August 

2006 and April 2007. Additionally, we 

contacted the commenter in February 

2006 to request permission to visit the 

site, and we provided information about 

the proposed designation. Service 

biologists met with the commenter on 

March 1, 2006, and provided 

information about critical habitat. 

Comment 2: The commenter 

requested the postponement or 

termination of the rulemaking process 

until legal review is made. He also 

suggests we should investigate 

opportunities to conserve the species on 

government-owned lands. 

Our Response: We have a statutory 

obligation to designate critical habitat, 

and we are operating under a settlement 

agreement that requires us to finalize 

this designation by August 15, 2007. We 

are finalizing this rule in compliance 

with applicable legal standards. 

Regarding opportunities to conserve 

the species on government-owned 

lands, the species is not currently 

present on government-owned lands in 

the USVI. The recovery plan identifies 

the establishment of a propagation 

program as the top priority for the 

recovery of the species. Once the 

appropriate propagation techniques are 

established and necessary funding 

allocated, we would direct our efforts 

toward the establishment of selfsustainable populations on protected 

lands. The recovery plan also identifies 

the need to establish conservation 

agreements with private landowners to 

provide protection to the existing 

individuals and their habitat in the 

USVI. 

Comment 3: The commenter believes 

that the economic impact of designation 

would not range from $132,300 to 

$441,000 over 20 years, as discussed in 

the draft economic analysis, but rather 

would range from $630,000 to 

$2,100,000 over 20 years. 

Our Response: The commenter 

confused the economic impact of the 

critical habitat designation with the 

assessment of the market value for the 

site. The draft economic analysis 

summarized the procedure taken to 

assess the market value of the property. 

Exhibit 2 of the draft economic analysis 

included the market value per acre of 

the proposed designated area, which 

ranges from $630,000 to $2,100,000. The 

economic impact of the designation was 

based on conservation 

recommendations we would provide as 

technical assistance to a developer to 

conserve the species within the 

property, if a development project is 

proposed. The conservation measures 

would include establishing a buffer 

zone of 20 meters (m) (66 feet (ft)) 

around the existing population as a 

setback from the development. The 

buffer zone is included in the 

designation, and the total area to be 

designated is approximately 10.5 ac (4.3 

ha). The calculation of the economic 

impact of the designation to the 

landowner was based on the 

implementation of this conservation 

measure and ranged from $132,000 to 

$441,000 over 20 years. 

Comment 4: The commenter stated 

that the draft economic analysis 

recommends a modification to the 

designation, specifically limiting the 

proposed designation to 21 percent of 

the property. 

Our Response: With the assistance of 

the aerial photo provided by the 

commenter during the comment period, 

we reexamined the boundaries of the 

proposed area and removed highly 

degraded areas dominated by pastures 

located south of Road 62. We also 

redefined the boundaries utilizing GPS 

recorded sightings of individuals 

collected by Service personnel within 

the property (Lombard 2002). We 

verified that these redefined areas meet 

both criteria we are utilizing to 

designate critical habitat, they are 

occupied by the species and they 

support the PCEs essential for the 

conservation of the species. We reduced 

the size of the designated critical habitat 

to 10.5 ac (4.3 ha). 

Comment 5: The commenter stated 

that the draft economic analysis 

incorrectly states that the site is not 

being used for agriculture and that the 

site is currently subject to an 

agricultural lease. The commenter 

mentioned that the site is subject to 

periodic grazing, which reduces the fire 

hazard and is beneficial for the 

protection of the species. The 

commenter interpreted the proposed 

designation as prohibiting agricultural 

activities in the area and stated that this 

would adversely affect the prospects of 

this population’s survival. 

Our Response: The draft economic 

analysis stated that the property 

proposed for critical habitat was no 

longer used for grazing activities. The 

revised analysis states: ‘‘The property is 

subject to an agricultural lease that has 

not been terminated, and is periodically 

grazed by livestock. The owner notes 

that this grazing activity reduces the 

threat of brush fires and may benefit the 

species.’’

Comments From the Territory of the 

USVI 

Section 4(i) of the Act states that ‘‘the 

Secretary shall submit to the State 

agency a written justification for his 

failure to adopt regulations consistent 

with the agency’s comments or 

petition.’’ Comments received from 

Territorial agencies (USVI Department 

of Planning and Natural Resources, 

Division of Fish and Wildlife) regarding 

the proposal to designate critical habitat 

for Catesbaea melanocarpa are 

addressed in the Peer Reviewer 

Comments section. 

Summary of Changes From Proposed 

Rule 

On the basis of comments received on 

the proposed rule and the draft 

economic analysis, we have developed 

our final designation of critical habitat 

for Catesbaea melanocarpa. 

Specifically, we adjusted the boundaries 

of the proposed critical habitat 

designation to remove the areas that 

were dominated by pastures, and as 

such did not contain the first primary 

constituent element and the area not 

currently occupied by the species. This 

adjustment resulted in the removal of 

39.5 ac (16 ha) from the original 

boundaries and a final designation of 

10.5 ac (4.3 ha). The boundaries of the 

designation were refined by utilizing an 

aerial photograph provided during the 

public comment period for the proposed 

rule and a layer created in GIS with the 

GPS readings of the sightings of the 

approximately 100 plants in the area. 

We used a 100-meter grid to establish 

Universal Transverse Mercator (UTM) 

North American Datum 27 (NAD 27) 

coordinates that, when connected, 

provided the boundaries of the critical 

habitat for Catesbaea melanocarpa. 

In the proposed rule published on 

August 22, 2006 (71 FR 48883), we 

stated that the Gua ́nica and the Susu ́ a 

Commonwealth Forests in PR were not 


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49216 Federal Register / Vol. 72, No. 166 / Tuesday, August 28, 2007 / Rules and Regulations 

included in the proposed designation 

because they are adequately protected 

under the management of the DNER and 

the master plan for the forests, and 

therefore do not require special 

management or protection. Under 

section 3(5)(A) of the Act, an area that 

was occupied at the time of listing on 

which are found those physical or 

biological features essential to the 

conservation of the species and which 

may require special management 

considerations or protection meets the 

definition of critical habitat. We have 

determined that these areas do meet the 

definition of critical habitat as there are 

additional management actions beyond 

those already in effect, that can be taken 

to conserve the plants in these areas. 

However, we believe the forests have 

management plans that appropriately 

address the conservation needs of the 

species and therefore minimize any 

benefits of designation (see ‘‘Exclusions 

Under Section 4(b)(2)’’ below). Thus, we 

are invoking the Secretary’s discretion 

to exclude the two forests under section 

4(b)2 of the Act, after taking into 

consideration the efforts by the 

Commonwealth of Puerto Rico to 

protect habitat under its jurisdiction. 

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) which 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 which 

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.’’

Such methods and procedures include, 

but are not limited to, all activities 

associated with scientific resources 

management, such as research, census, 

law enforcement, habitat acquisition 

and maintenance, propagation, live 

trapping, and transplantation, and, in 

the extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

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. 

Section 7 is a purely protective measure 

and does not require implementation of 

restoration, recovery, or enhancement 

measures. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species at the time of 

listing 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 where PCEs 

are found, 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 under 

section 4(b)(2) of the Act. Areas outside 

of the geographical area occupied by the 

species at the time of listing may only 

be included in critical habitat if they are 

essential to the conservation of the 

species. Accordingly, 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 outside the geographical area 

occupied by the species at the time of 

listing. However, an area that is 

currently occupied by the species, but 

which was not known at the time of 

listing to be occupied, will likely, but 

not always, be essential to the 

conservation of the species and, 

therefore, considered for inclusion 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 (Pub. 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 of 

Catesbaea melanocarpa, 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. 

Section 7(a)(1) directs all other Federal 

agencies to utilize their authorities in 

furtherance of the purposes of the Act 

by carrying out programs for the 

conservation of listed species. 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 


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new information available to these 

planning efforts calls for a different 

outcome. 

Primary Constituent Elements (PCEs) 

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

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

designate as critical habitat within areas 

occupied by the species at the time of 

listing, we consider those physical and 

biological features that are essential to 

the conservation of the species (PCEs), 

and which may require special 

management considerations and 

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 breeding, reproduction, 

rearing (or development) of offspring, 

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 

Catesbaea melanocarpa are derived 

from the biological needs of this plant 

species and include those habitat 

components needed for growth and 

development, flower production, 

pollination, seed set and fruit 

production, and genetic exchange. 

Although at the 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. 

Catesbaea 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 

on 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, Catesbaea 

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 

is 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, 

Catesbaea 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 (tantan), 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 Coccoloba 

microstachya (uvillo), C. diversifolia 

(uvilla), Thouinia portoricensis 

(quebracho), Guettarda elliptica 

(cucubano liso), Croton lucidus (alhelı ́), 

Savia sessiliflora (amansa guapo), 

Pithecellobium unguis-cati (un ̃ a de 

gato), Guaiacum sanctum (guayaca ́n), 

Leucaena leucocephala (zarcilla), 

among other common species (TrejoTorres 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, pp. 

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 (12 m) tall. The forest floor 

is open because the excessively drained 

soil supports little herbaceous growth 

(Ewel and Whitmore 1973, p. 25). 

Catesbaea 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 

Catesbaea melanocarpa 

The area designated as critical habitat 

for Catesbaea melanocarpa is occupied, 

is within the species’ current and 

historic geographic range, and contains 

sufficient primary constituent elements 

(PCEs) to support at least one of the 

plant’s life-history functions. 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 the 

PCEs for C. melanocarpa 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 Catesbaea melanocarpa. The 

canopy provides shade, and the open 

forest floor reduces competition by 


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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. 

This designation is designed for the 

conservation of areas supporting PCEs 

necessary to support the life-history 

functions that were the basis for the 

proposal. The area designated as critical 

habitat in this rule has been determined 

to contain sufficient PCEs to support 

one or more of the life-history functions 

of C. melanocarpa. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4 of the Act, 

we used the best scientific data 

available in determining areas that 

contain the features that are essential to 

the conservation of Catesbaea 

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 occupied by the species 

within the U.S. jurisdiction: 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 FR 13116, March 17, 

1999; Breckon and Kolterman 1993, p. 

1). 

We reviewed the approved 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 

Catesbaea 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, Department of Natural and 

Environmental Resources (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; they confirmed 

sightings at all sites except the west side 

of the South Shore Road, which is 

outside of the designation. 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. 

The only areas considered for 

designation were those that either (1) 

were occupied at the time of listing (as 

a population or an occurrence) and 

possess sufficient PCEs to support the 

life history functions, or (2) were not 

occupied at the time of listing but are 

essential to the conservation of the 

species. Information gathered by the 

Service and data collected during field 

visits resulted in the consideration of 

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. This area contains features 

that are essential to the conservation of 

Catesbaea 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 

designated as critical habitat due to the 

lack of PCEs and the lack of 

conservation value for the species. 

The Gua ́nica and Susu ́ a 

Commonwealth forests have current and 

historical records of the species 

presence. The presence has been 

documented based on recent reports 

(Trejo-Torres 2001, p. 62; Trejo-Torres 

2003; 2006) and site visits conducted by 

the Service in 2006. 

These three areas (Halfpenny Bay and 

both Commonwealth forests) represent 

all known populations 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 securing 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 actions for Catesbaea 

melanocarpa to determine if any of the 

areas identified above that contained 

features essential to the conservation of 

the species could be excluded under 

section 4(b)(2) of the Act. On the basis 

of this review, we believe that essential 

features within both Commonwealth 

Forests are adequately managed and 

protected under the management of 

Puerto Rico DNER. Accordingly, while 

these areas collectively total 14,575 ac 

(5,898 ha) and contain the habitat 

features that are essential to the 

conservation of the species, they are 

excluded from this designation because 

they 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 (see 

Application of section 4(b)(2) of the Act 

below). 

When determining critical habitat 

boundaries, we made every effort to 

avoid including developed areas such as 

buildings, paved areas, and other 


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structures that lack PCEs for Catesbaea 

melanocarpa. 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 

final rule have been excluded by text in 

the final rule and are not designated 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. 

The area of approximately 10.5 ac (4.3 

ha) identified within the Halfpenny Bay 

area meets all criteria used to identify 

critical habitat: The site was occupied at 

the time of listing and contains 

sufficient PCEs to support the lifehistory functions essential for the 

conservation of the species that are in 

need of special management and 

protection. A brief discussion of the 

Halfpenny Bay area is provided in the 

unit description below. Additional 

detailed documentation concerning the 

essential nature of this area is contained 

in our documentation record for this 

rulemaking. 

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 this section 

and in the unit description 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 from 

periodic but intense grazing, humaninduced fires, and potential 

development for a tourist project 

(USFWS 2005, p. 8). 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, and establishing 

conservation agreements with 

landowners to protect habitat within the 

property. 

Critical Habitat Designation 

We are designating one unit in the 

Halfpenny Bay area in Christiansted, St. 

Croix, USVI as critical habitat for 

Catesbaea melanocarpa. This critical 

habitat area described below (see Table 

1) constitutes our best assessment at this 

time of areas determined to be occupied 

at the time of listing, that contain the 

PCEs that are essential for the 

conservation of the species, and that 

may require special management 

considerations or protection. 

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.—LANDS DETERMINED TO MEET THE DEFINITION OF CRITICAL HABITAT FOR CATESBAEA MELANOCARPA, LAND

OWNERSHIP, APPROXIMATE AREA (ACRES, HECTARES). 

Critical habitat unit, location Land ownership 

Areas meeting the definition 

of critical habitat acres 

(hectares) 

Halfpenny Bay, St. Croix, USVI ...................................................................... Private .................................... 10.5 (4.3) 

Total ......................................................................................................... ................................................ 10.5 (4.3) 

Presented below is a brief description 

and rationale for the designated critical 

habitat for Catesbaea melanocarpa. 

Halfpenny Bay, St. Croix 

The Halfpenny Bay critical habitat 

area consists of an area of approximately 

10.5 ac (4.3 ha) on a privately owned 

agricultural tract located in a dry coastal 

plain about 2.48 miles (4 km) south of 

Christiansted, St. Croix, USVI. This unit 

encompasses the habitat features 

essential to the conservation of 

Catesbaea 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 both 

PCEs 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. 

At the time of the 1999 listing, the 

population was estimated at 24 

individuals, but in 2002 the population 

was estimated at 100 individuals 

(Lombard 2002). The presence of the 

species at this site was confirmed by the 

Service in March 2006. This USVI 

population has the highest number of 

plants and has been documented in its 

reproductive condition (with fruit and 

flowers). The site and the PCEs 

contained thereon are currently 

threatened by periodic but intense 

grazing, human-induced fires, potential 

development for a tourist project 

(USFWS 2005, p. 8), and may require 

special management considerations and 

protection as discussed in the ‘‘Special 

Management Considerations or 

Protections’’ section above. 

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 

court decisions 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, 442 (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 


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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. 

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. 

Federal activities that may affect 

Catesbaea 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 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. 

Application of the Jeopardy and 

Adverse Modification Standards for 

Actions Involving Effects to Catesbaea 

melanocarpa and Its Critical Habitat 

Jeopardy Standard 

When performing jeopardy analysis 

for Catesbaea melanocarpa, the Service 

applies an analytical framework that 

relies heavily on the importance of core 

area populations to the survival and 

recovery of this plant. 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 Catesbaea 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 

considered to be 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 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 primary 

constituent elements to be functionally 

established) to serve its intended 

conservation role of the critical habitat 

unit for this plant 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 Catesbaea 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 


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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 area designated as 

critical habitat, as well as those that 

were excluded, to contain features 

essential to the conservation of 

Catesbaea melanocarpa. The designated 

area is within the geographic range of 

the species, 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), 

and is currently occupied by the 

species. 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) 

which 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. 

Following a review of all areas, we have 

determined that each area meets the 

definition of 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. 

Application of Section (4)(b)(2) of the 

Act 

Section 4(b)(2) of the Act states that 

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact, of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the Secretary is afforded broad 

discretion, and the Congressional record 

is clear that, in making a determination 

under the section, the Secretary has 

discretion as to which factors and how 

much weight will be given to any factor. 

Under section 4(b)(2), in considering 

whether to exclude a particular area 

from the designation, we must identify 

the benefits of including the area in the 

designation, identify the benefits of 

excluding the area from the designation, 

and determine whether the benefits of 

exclusion outweigh the benefits of 

inclusion. If an exclusion is 

contemplated, then we must determine 

whether excluding the area would result 

in the extinction of the species. In the 

following sections, we address a number 

of general issues that are relevant to the 

exclusions we considered. 

The following is our analysis of the 

benefits of including lands within 

versus excluding such lands from this 

critical habitat designation. 

(1) Benefits of Inclusion of Gua ́nica and 

Susu ́ a Commonwealth Forests 

The principal regulatory benefit of 

critical habitat is that federally 

authorized, funded, or carried out 

activities require consultation pursuant 

to section 7 of the Act to ensure that 

they will not destroy or adversely 

modify critical habitat. In the Gifford 

Pinchot decision, the U.S. Court of 

Appeals for the Ninth Circuit ruled that 

adverse modification evaluations 

require consideration of impacts on the 

recovery of species (379 F.3d 1059, 

1070–1072). Conducting section 7 

consultations would provide benefits by 

protecting plants on lands with a 

Federal nexus. For example, if a 

federally funded road project was 

proposed to cross these lands that were 

designated as critical habitat, a 

consultation would need to be 

conducted to ensure the designated 

critical habitat was not destroyed or 

adversely modified. Section 7 

consultations only commit Federal 

agencies to prevent adverse 

modification to critical habitat caused 

by the particular project, and they are 

not committed to provide conservation 

or long-term benefits to areas not 

affected by the proposed project. Thus, 

any management plan that considers 

enhancement or recovery as the 

management standard will always 

provide as much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. Without 

a critical habitat designation, Federal 

agencies remain obligated under section 

7 to consult with us on actions that may 

affect a federally listed species to ensure 

such actions do not jeopardize the 

species’ continued existence. The DNER 

does not utilize Federal funding to 

manage forest reserves in PR; however, 

the DNER routinely consults with us on 

research activities and projects on the 

forests that may affect federally listed 

species to ensure that the continued 

existence of such species is not 

adversely affected. Thus, under the 

Gifford Pinchot decision, critical habitat 

designations may provide greater 

benefits to the recovery of a species. 

However, we believe the conservation 

achieved through implementing habitat 

management plans is typically greater 

than would be achieved through 

multiple site-by-site, project-by-project, 

section 7 consultations involving 

consideration of critical habitat. 

Management plans commit resources to 

implement long-term management and 

protection to particular habitat for at 


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least one and possibly other listed or 

sensitive species. 

Designation of critical habitat also 

serves to educate landowners, State and 

local governments, and the public, 

regarding the potential conservation 

value of the area. This helps focus, 

prioritize, and revitalize conservation 

efforts, such as restoration projects, or 

more extensive monitoring of 

populations. This benefit is closely 

related to a second, more indirect 

benefit: that designation of critical 

habitat would inform State agencies and 

local governments about areas that 

could be conserved under State laws or 

local ordinances. 

However, the benefits of inclusion are 

low, since the forests are already 

managed in an appropriate manner and 

education of the public is already 

occurring. For instance, extensive 

management plans already cover these 

forests. 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 Commonwealth 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 

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 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). 

Additionally, both forests are 

currently managed as wildlife 

sanctuaries, protecting wildlife and 

plants in perpetuity and allowing only 

nonconsumptive 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 

Catesbaea melanocarpa. Also, the 

DNER has an island-wide education 

program that produces educational 

materials, talks, seminars and 

presentations on threatened and 

endangered species in Puerto Rico and 

their conservation needs, therefore there 

is no appreciable educational benefit to 

the designation of critical habitat in 

these areas. 

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). 

We believe there may be some 

benefits of inclusion, but they would be 

low because of the ongoing efforts of the 

Commonwealth. Critical habitat 

designation alone does not require 

specific steps toward recovery. The 

benefits of including these DNERmanaged lands in designated critical 

habitat are minimal because the land 

managers and landowners are currently 

implementing conservation actions for 

C. melanocarpa and its habitat that 

encompass more than a critical habitat 

designation would. The DNER manages 

the forests as wildlife sanctuaries, does 

not allow for economic use of the forests 

and conducts management activities 

consistent with the conservation of the 

species and its habitat, including 

educating the public. Additionally, the 

purpose normally served by the 

designation, that of informing State 

agencies and local governments about 

areas that would benefit from protection 

and enhancement of habitat for 

Catesbaea melanocarpa, is already well 

established among State and local 

governments and Federal agencies in 

those areas that we are excluding from 

critical habitat in this rule on the basis 

of other existing habitat management 

protections. 

(2) Benefits of Exclusion of Gua ́nica 

and Susu ́ a Commonwealth Forests 

Exclusion would further enhance the 

cooperative working relationship with 

the Forests by focusing on activities that 

are designed to protect and recover the 

species, and allowing resources to go 

toward on-the-ground efforts rather than 

regulatory procedures. 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 plant 

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. As stated previously, there are 

instances where section 7 consultation 

could occur. If these lands are 

designated, there would be an 

additional burden for each individual 

action to ensure that designated critical 

habitat was not destroyed or adversely 

modified. Given the goal of the 

Commonwealth to protect, manage and 

enhance populations, this additional 

burden would likely add additional 

time and paperwork to consultations, 

which is unnecessary. 

Threats identified for Catesbaea 

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. 

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 


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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). Catesbaea 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. 

Recent surveys conducted in Gua ́nica 

Commonwealth Forest have expanded 

the known range of other federally listed 

species such as Trichilia triacantha 

(bariaco) and Ottoschulzia rhodoxylon 

(palo de rosa), and other State-protected 

species all previously known for only a 

few individuals within the forest. We 

believe additional occurrences of 

Catesbaea melanocarpa will be found in 

both forests. Protection of such areas, as 

the Commonwealth forests, conveys 

stability of forest development since 

most forests in Puerto Rico were 

destroyed for agriculture. Forest 

reserves like Gua ́nica, protected since 

1919, provide the necessary structure to 

support the conservation of the species, 

and thus the benefit of additional 

regulatory requirements for the 

conservation of the species is extremely 

low. 

Therefore, the benefits of exclusion 

are relaxation of regulatory 

requirements that would be imposed by 

the designation. Exclusion would also 

enhance the partnership efforts with the 

DNER focused on conservation of the 

species in the State, and secure 

conservation benefits for the species 

beyond those that could be attained 

through the regulatory requirements 

under section 7 of the Act if the area 

were designated as critical habitat. 

When landowners are already taking 

sufficient steps to conserve the species, 

the imposition of additional regulatory 

requirements is not necessary. Further, 

it may require the expenditure of funds 

on consultations for projects that are 

largely beneficial to the species. 

Exclusion of these lands from critical 

habitat designation would eliminate the 

need to expend these funds. 

(3) Benefits of Exclusion of Gua ́nica and 

Susu ́ a Commonwealth Forests Outweigh 

the Benefits of Inclusion 

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 believe 

that, for these sites, the benefits of 

inclusion are nominal. We believe these 

benefits to include increased 

recognition concerning the status and 

conservation needs of the species and 

protection afforded through 

consultations with Federal action 

agencies under section 7 of the Act. In 

contrast, we believe greater benefits will 

be realized for the species by excluding 

these specific lands from designated 

critical habitat. These benefits include 

relief from the expenditure of resources 

to conduct consultations under section 

7 of the Act with Federal action 

agencies, maintaining partnerships with 

DNER, and recognition of the on-going 

conservation measures that they are 

taking for the species. It is our 

determination that these combined 

measures will provide greater 

conservation benefits for Catesbaea 

melanocarpa than the benefits realized 

through the regulatory designation of 

critical habitat and will put available 

resources toward on-the-ground efforts 

rather than implementing a regulatory 

procedure. We have also evaluated 

economic impacts for this exclusion, but 

we do not believe there are 

disproportionate impacts that warrant 

an exclusion under section 4(b)(2) of the 

Act on that basis. 

(4) Exclusion Will Not Result in 

Extinction 

Approximately 88 percent of the 

known Catesbaea melanocarpa 

individuals within U.S. jurisdiction are 

located within the designated critical 

habitat. The remaining 12 percent (13 

known individuals) are within the 

excluded areas. We anticipate that little, 

if any, conservation benefit to C. 

melanocarpa will be foregone as a result 

of excluding these areas, as both forests 

are currently managed as wildlife 

sanctuaries, protecting wildlife and 

plants in perpetuity, allowing only 

nonconsumptive use by the public in 

designated areas and trails, and since 

the forests are already managed in an 

appropriate manner. Additionally, the 

conservation status of these forests and 

current local laws and regulations in PR 

adequately protect essential C. 

melanocarpa habitat and provide 

appropriate management to maintain 

and enhance the primary constituent 

elements for the species within the 

forests. As a result of the protection of 

C. melanocarpa and its habitat provided 

in both forests, and the fact that the 

majority of occurrences are within 

designated critical habitat, we find that 

the exclusion of these areas will not 

result in the extinction of C. 

melanocarpa. Accordingly, we exercise 

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

Act to exclude these areas from the 

designation of critical habitat. 

Economic Analysis 

Section 4(b)(2) of the Act requires us 

to designate critical habitat on the basis 

of the best scientific information 

available and to consider the economic 

and other relevant impacts of 

designating a particular area as critical 

habitat. We may exclude areas from 

critical habitat upon a determination 

that the benefits of such exclusions 

outweigh the benefits of specifying such 

areas as critical habitat. We cannot 

exclude such areas from critical habitat 

when such exclusion will result in the 

extinction of the species concerned. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. The draft analysis was 

made available for public review on 

March 14, 2007 (72 FR 11819). We 

accepted comments on the draft analysis 

until April 13, 2007. 

The purpose of the economic analysis 

is to estimate the potential economic 

impacts associated with the designation 

of critical habitat for Catesbaea 

melanocarpa. This information is 

intended to assist the Secretary in 

making decisions about whether the 

benefits of excluding particular areas 

from the designation outweigh the 

benefits of including those areas in the 

designation. This economic analysis 

considers the economic efficiency 

effects that may result from the 

designation, including habitat 

protections that may be co-extensive 

with the listing of the species. It also 

addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. 

This analysis focuses on the direct 

and indirect costs of the rule. However, 

economic impacts to land use activities 

can exist in the absence of critical 

habitat. These impacts may result from, 

for example, local zoning laws, State 


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and natural resource laws, and 

enforceable management plans and best 

management practices applied by other 

State and Federal agencies. Economic 

impacts that result from these types of 

protections are not included in the 

analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

The draft economic analysis estimated 

a potential economic cost of $132,300 to 

$441,000 over a 20-year period as a 

result of the critical habitat designation. 

The analysis, which was prepared in a 

manner consistent with the ruling in 

N.M. Cattle Growers Ass’n v. USFWS, 

248 F3rd 1277 (10th Cir. 2001), 

measured lost economic efficiency 

associated with residential and 

commercial development, and public 

projects and activities. Potential 

economic impacts stem entirely from 

possible limitations on development of 

the designated property. The total 

potential value loss is 21 percent of the 

property’s market value. The actual loss 

would depend on the future sale price, 

and could range from $132,300 to 

$441,000. This potential value loss is 

based on the implementation of the 

conservation recommendations, which 

consist of protecting existing 

individuals (approximately 100 plants) 

and maintaining a buffer of 20 meters 

around them as a setback from a 

development project. The analysis also 

conservatively included all potential 

costs attributed to consultation 

requirements resulting both from the 

listing of the species and designation of 

critical habitat. Overall, the analysis did 

not anticipate a decrease in the amount 

of construction activity on St. Croix as 

a result of the designation. As a result, 

small developers and construction firms 

are not anticipated to be affected. For 

Gua ́nica and Susu ́ a Commonwealth 

Forests, we evaluated the activities that 

we expect to occur in the forests, based 

on their management plans. These 

include nonconsumptive public 

recreational use, developing and 

maintaining fire breaks, conducting 

prescribed burning adjacent to roads, 

scientific data collecting, and removing 

exotic plant species. Although we have 

not quantified any impacts to these 

activities as a result of the designation, 

these actions are likely to have a 

minimal or beneficial affect to the 

species and therefore we expect the 

economic impacts to these areas would 

be small if they were designated as 

critical habitat. Based on the analysis, 

we have concluded that the economic 

impacts that may result from the 

designation alone are minimal. 

A copy of the final economic analysis 

with supporting documents are 

included in our administrative record 

and may be obtained by contacting U.S. 

Fish and Wildlife Service, Caribbean 

Fish and Wildlife Office (see 

ADDRESSES). 

Pursuant to section 4(b)(2) of the Act, 

we must consider relevant impacts in 

addition to economic ones. We 

determined that the lands within the 

designation of critical habitat for 

Catesbaea melanocarpa are not owned 

or managed by the Department of 

Defense, there are currently no habitat 

conservation plans for C. melanocarpa, 

and the designation does not include 

any Tribal lands or trust resources. We 

anticipate no impact to national security 

or Tribal lands. Our economic analysis 

indicates an overall low potential cost 

resulting from the designation. 

Therefore, we have not excluded any 

areas from this designation of critical 

habitat for C. melanocarpa based on 

economic impacts. As such, we have 

considered, but not excluded, any lands 

from this designation based on the 

potential impacts to these factors. We 

have excluded areas for other reasons; 

please see the section 4(b)(2) exclusions 

discussion under ‘‘Application of 

Section (4)(b)(2) of the Act’’ above. 

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 will not have an 

annual effect on the economy of $100 

million or more or affect the economy 

in a material way. Due to the tight 

timeline for publication in the Federal 

Register, the Office of Management and 

Budget (OMB) has not formally 

reviewed this rule. As explained above, 

we prepared an economic analysis of 

this action. The draft economic analysis 

estimated a potential economic cost of 

$132,300 to $441,000 over a 20-year 

period as a result of the critical habitat 

designation. We used the information in 

and results of this analysis to meet the 

requirement of section 4(b)(2) of the Act 

to determine the economic 

consequences of designating the specific 

areas as critical habitat. We also used it 

to help determine whether to exclude 

any area from critical habitat, as 

provided for under section 4(b)(2). 

Based on this economic analysis, we 

believe that there are no 

disproportionate economic impacts that 

warrant exclusion pursuant to section 

4(b)(2) of the Act at this time. 

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

et seq.) 

Under the Regulatory Flexibility Act 

(RFA) (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 (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The SBREFA also amended the RFA to 

require a certification statement. 

Small entities include small 

organizations, such as independent 

nonprofit organizations; small 

governmental jurisdictions, including 

school boards and city and town 

governments that serve fewer than 

50,000 residents; as well as small 

businesses. Small businesses include 

manufacturing and mining concerns 

with fewer than 500 employees, 

wholesale trade entities with fewer than 

100 employees, retail and service 

businesses with less than $5 million in 

annual sales, general and heavy 

construction businesses with less than 

$27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities 

(that is, housing development, grazing, 

oil and gas production, timber 

harvesting). We apply the ‘‘substantial 

number’’ test individually to each 

industry to determine if certification is 

appropriate. However, the SBREFA does 


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not explicitly define ‘‘substantial 

number’’ or ‘‘significant economic 

impact.’’ Consequently, to assess 

whether a ‘‘substantial number’’ of 

small entities is affected by this 

designation, this analysis considers the 

relative number of small entities likely 

to be impacted in an area. In some 

circumstances, especially with critical 

habitat designations of limited extent, 

we may aggregate across all industries 

and consider whether the total number 

of small entities affected is substantial. 

In estimating the number of small 

entities potentially affected, we also 

consider whether their activities have 

any Federal involvement. 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

fund, permit, or implement that may 

affect Catesbaea melanocarpa. Federal 

agencies also must consult with us if 

their activities may affect critical 

habitat. Designation of critical habitat, 

therefore, could result in an additional 

economic impact on small entities due 

to the requirement to reinitiate 

consultation for ongoing Federal 

activities. 

In our economic analysis of the 

critical habitat designation, we 

evaluated the potential economic effects 

on small business entities resulting from 

conservation actions related to the 

listing of Catesbaea melanocarpa and 

proposed designation of its critical 

habitat. This analysis estimated 

prospective economic impacts due to 

the implementation of conservation 

efforts for the species, such as 

incorporating a buffer zone around the 

individuals into the development 

project plans. We determined from our 

analysis that the implementation of 

conservation measures for C. 

melanocarpa within the proposed 

designation may impact the private 

landowners, but impacts are not 

anticipated to small business. 

Costs associated with the value of the 

land for residential and commercial 

development comprise 100 percent of 

the total quantified potential future 

impacts. Total potential costs are 

expected to be $132,300 to $441,000 

over a 20-year period. These costs are 

related to the implementation of a buffer 

zone of 20 m (66 ft) around the current 

population as a conservation measure 

for private development within the 

critical habitat designation. This buffer 

zone has the potential to affect 

approximately 10.5 ac (4.3 ha) of the 

property. Overall, the analysis does not 

anticipate a decrease in the amount of 

construction activity on St. Croix as a 

result of the designation. As a result, 

small developers and construction firms 

are not anticipated to be affected. Please 

refer to our final economic analysis for 

this designation for a more detailed 

discussion of potential economic 

impacts. 

In general, two different mechanisms 

in section 7 consultations could lead to 

additional regulatory requirements for 

the private landowners of the Halfpenny 

Bay area if they are required to consult 

with us regarding the effects of projects’

impacts on Catesbaea melanocarpa or 

its habitat. First, if we conclude, in a 

biological opinion, that a proposed 

action is likely to jeopardize the 

continued existence of a species or 

adversely modify its critical habitat, we 

can offer ‘‘reasonable and prudent 

alternatives.’’ Reasonable and prudent 

alternatives are alternative actions that 

can be implemented in a manner 

consistent with the scope of the Federal 

agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that would 

help the applicant to avoid jeopardizing 

the continued existence of listed species 

or result in adverse modification of 

critical habitat. A Federal agency and an 

applicant may elect to implement a 

reasonable and prudent alternative 

associated with a biological opinion that 

has found jeopardy or adverse 

modification of critical habitat. An 

agency or applicant could alternatively 

choose to seek an exemption from the 

requirements of the Act or proceed 

without implementing the reasonable 

and prudent alternative. However, 

unless an exemption were obtained, the 

Federal agency or applicant would be at 

risk of violating section 7(a)(2) of the 

Act if it chose to proceed without 

implementing the reasonable and 

prudent alternatives. 

Second, if we find that a proposed 

action is not likely to jeopardize the 

continued existence of a listed animal or 

plant species, we may identify 

reasonable and prudent measures 

designed to minimize the amount or 

extent of take and require the Federal 

agency or applicant to implement such 

measures through nondiscretionary 

terms and conditions. We may also 

identify discretionary conservation 

recommendations designed to minimize 

or avoid the adverse effects of a 

proposed action on listed species or 

critical habitat, help implement 

recovery plans, or to develop 

information that could contribute to the 

recovery of the species. 

Based on our experience with 

consultations pursuant to section 7 of 

the Act for all listed species, virtually 

all projects—including those that, in 

their initial proposed form, would result 

in jeopardy or adverse modification 

determinations in section 7 

consultations—can be implemented 

successfully with, at most, the adoption 

of reasonable and prudent alternatives. 

These measures, by definition, must be 

economically feasible and within the 

scope of authority of the Federal agency 

involved in the consultation. We can 

only describe the general kinds of 

actions that may be identified in future 

reasonable and prudent alternatives. 

These are based on our understanding of 

the needs of the species and the threats 

it faces, as described in the final listing 

rule and its critical habitat designation. 

Within the final designation area, the 

types of Federal actions or authorized 

activities that we have identified as 

potential concerns are: 

(1) Regulation of activities affecting 

waters of the United States by the U.S. 

Army Corps of Engineers under section 

404 of the Clean Water Act; 

(2) Regulation of water flows, 

damming, diversion, and channelization 

implemented or licensed by Federal 

agencies; 

(3) Road construction and 

maintenance, right-of-way designation, 

and regulation of agricultural activities; 

(4) Hazard mitigation and postdisaster repairs funded by the Federal 

Emergency Management Act; 

(5) Activities authorized or funded by 

the Environmental Protection Agency, 

U.S. Department of Energy, or any other 

Federal agency. 

It is likely that a developer or other 

project proponent could modify a 

project or take measures to protect 

Catesbaea melanocarpa. The kind of 

actions that may be included if future 

reasonable and prudent alternatives 

become necessary include conservation 

set-asides, management of competing 

nonnative species, restoration of 

degraded habitat, and regular 

monitoring. These are based on our 

understanding of the needs of the 

species and threats it faces, as described 

in the final listing rule and proposed 

critical habitat designation. These 

measures are not likely to result in a 

significant economic impact to project 

proponents. 

In summary, we have considered 

whether this would result in a 

significant economic effect on a 

substantial number of small entities. We 

have determined, for the above reasons 

and based on currently available 


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49226 Federal Register / Vol. 72, No. 166 / Tuesday, August 28, 2007 / Rules and Regulations 

information, that it is not likely to affect 

a substantial number of small entities. 

Federal involvement, and thus section 7 

consultations, would be limited to the 

area designated. The most likely Federal 

involvement could include Federal 

Highway Administration funding for 

road improvement, Natural Resources 

Conservation Service funding for 

agricultural practices, Housing and 

Urban Development funding for 

residential development and Federal 

Communications Commission permits 

for the construction and operation of 

telecommunication towers. Therefore, 

for the above reasons and based on 

currently available information, we 

certify that the rule will not have a 

significant economic impact on a 

substantial number of small entities, 

and a regulatory flexibility analysis is 

not required. 

Energy Supply, Distribution or Use (E.O. 

13211) 

On May 18, 2001, the President issued 

Executive Order 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. Based on 

the information from the economic 

analysis, this final rule to designate 

critical habitat for Catesbaea 

melanocarpa 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. 

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 

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 onto State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year, that is, it 

is not a ‘‘significant regulatory action’’

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments. As such, Small 

Government Agency Plan is not 

required. 

Takings (E.O. 12630) 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating 10.5 ac (4.3 

ha) of lands in Halfpenny Bay area in St. 

Croix, USVI as critical habitat for 

Catesbaea melanocarpa in a takings 

implication assessment. The takings 

implications assessment concludes that 

this final designation of critical habitat 

does not pose significant takings 

implications for lands within or affected 

by the designation. 

Federalism (E.O. 13132) 

In accordance with Executive Order 

13132 (Federalism), the rule does not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, 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 

Catesbaea 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 (E.O. 12988) 

In accordance with Executive Order 

12988 (Civil Justice Reform), the Office 

of the Solicitor has determined that the 

rule does not unduly burden the judicial 

system and meets the requirements of 

sections 3(a) and 3(b)(2) of the Order. 

We are designating critical habitat in 

accordance with the provisions of the 

Act. This final 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 

Catesbaea 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 


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Federal Register / Vol. 72, No. 166 / Tuesday, August 28, 2007 / Rules and Regulations 49227 

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 

(NEPA) (42 U.S.C. 4321 et seq.) 

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 

Act. 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. 1995), cert. denied 516 

U.S. 1042 (1996)). 

Government-to-Government 

Relationship With Indian Tribes (E.O. 

13175) 

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 Catesbaea 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 designated 

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 

FOR FURTHER INFORMATION CONTACT). 

Author(s) 

The primary authors of this package 

are the staff of Caribbean Fish and 

Wildlife Office (see FOR FURTHER

INFORMATION CONTACT). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we hereby amend part 

17, subchapter B of chapter I, title 50 of 

the Code of Federal Regulations, as set 

forth below: 

PART 17—[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) * * * 

Species 

Historic range Family Status When listed Critical 

habitat 

Special 

rules Scientific name Common name 

FLOWERING PLANTS

* * * * * * * 

Castesbaea 

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 in alphabetical order an entry for 

Family Rubiaceae consisting of 

Catesbaea melanocarpa 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 Catesbaea 

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) Critical Habitat unit: Halfpenny 

Bay, St. Croix, U.S. Virgin Islands. 

(i) General description: The 

Halfpenny Bay unit consists of 

approximately 10.5 ac (4.3 ha) on 

privately owned property located about 

2.48 mi (4 km) south of Christiansted, 

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

designated unit is located east of South 

Shore Road, approximately 342 m 

(1,122 ft) south of Road 62, 

approximately 600 m (1,968 ft) north of 

the Halfpenny Bay coast, and 70 m (230 

ft) west of a local road to Halfpenny 

Bay. This unit encompasses the habitat 

features essential to the conservation of 

Catesbaea melanocarpa within Estate 

Granard, 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): 

319156.03, 1958989.97; 319205.44, 

1959023.35; 319258.18, 1959055.40; 

319297.57, 1959086.11; 319397.72, 

1959126.83; 319437.78, 1959079.43; 

319393.05, 1958998.65; 319340.97, 

1958916.53; 319356.33, 1958854.44; 

319307.59, 1958819.72; 319284.39, 


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49228 Federal Register / Vol. 72, No. 166 / Tuesday, August 28, 2007 / Rules and Regulations 

1958851.87; 319259.52, 1958866.45; 

319226.80, 1958883.81; 319181.40, 

1958951.24; 319156.03, 1958989.97 

(iii) Note: Map of Halfpenny Bay 

follows: 

BILLING CODE 4310–55–P 

* * * * * Dated: August 14, 2007. 

Mitchell J. Butler, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 07–4061 Filed 8–27–07; 8:45 am] 

BILLING CODE 4310–55–C 


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