[Federal Register Volume 87, Number 116 (Thursday, June 16, 2022)]
[Rules and Regulations]
[Pages 36225-36248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12944]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2019-0050; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE15


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Marron Bacora and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are listing 
marron bacora (Solanum conocarpum), a plant species from the U.S. and 
British Virgin Islands, as an endangered species and are designating 
critical habitat for the species under the Endangered Species Act of 
1973, as amended (Act). In total, approximately 2,548 acres (1,031 
hectares) on St. John, U.S. Virgin Islands, fall within the boundaries 
of the critical habitat designation. This rule adds this species to the 
Federal List of Endangered and Threatened Plants and extends the Act's 
protections to the species and its designated critical habitat.

DATES: This rule is effective July 18, 2022.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov in Docket No. FWS-R4-ES-2019-0050. Comments and 
materials we received, as well as supporting documentation we used in 
preparing this rule, are available for public inspection in the docket 
on https://www.regulations.gov. For the critical habitat designation, 
the coordinates or plot points or both from which the maps are 
generated are included in the decision file for the critical habitat 
designation and are available at the Caribbean Ecological Services 
Field Office's website (https://www.fws.gov/office/caribbean-ecological-services/library) and at https://www.regulations.gov under 
Docket No. FWS-R4-ES-2019-0050.

FOR FURTHER INFORMATION CONTACT: Edwin Mu[ntilde]iz, Field Supervisor, 
U.S. Fish and Wildlife Service, Caribbean Ecological Services Field 
Office, P.O. Box 491, Road 301 Km 5.1, Boquer[oacute]n, PR 00622; 
telephone 787-244-0081; email <a href="/cdn-cgi/l/email-protection#c0a3a1b2a9a2a2a5a1ae9fa5b380a6b7b3eea7afb6"><span class="__cf_email__" data-cfemail="86e5e7f4efe4e4e3e7e8d9e3f5c6e0f1f5a8e1e9f0">[email protected]</span></a>. Individuals in the 
United States who are deaf, deafblind, hard of hearing, or have a 
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become endangered in the foreseeable 
future throughout all or a significant portion of its range). We have 
determined that the marron bacora meets the definition of an endangered 
species; therefore, we are listing it as such. To the maximum extent 
prudent and determinable, we must designate critical habitat for any 
species that we determine to be an endangered or threatened species 
under the Act. Listing a species as an endangered or threatened species 
and designation of critical habitat can be completed only by issuing a 
rule.
    What this rule does. This rule lists marron bacora (Solanum 
conocarpum) as an endangered species under the Act and designates 
approximately 2,548 acres (ac) (1,031 hectares (ha)) on St. John, U.S. 
Virgin Islands (USVI), as critical habitat for the species.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the primary threats acting 
on marron bacora are habitat destruction or modification by exotic 
mammal species (e.g., white-tailed deer, goats, pigs, and donkeys) and 
invasive plants and exotic plants (e.g., guinea grass) (Factor A); 
herbivory by nonnative, feral ungulates and insect pests (Factor C); 
and the lack of natural recruitment, absence of dispersers, fragmented 
distribution and small population size, lack of genetic diversity, and 
climate change (Factor E).
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. Section 3(5)(A) of the Act 
defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat. 
We are designating 2,548 ac (1,031 ha), consisting of two units on St. 
John, USVI, as critical habitat for marron bacora in this rule. We have 
excluded 1.33 ac (0.54 ha) from the South Unit.

Previous Federal Actions

    Please refer to the proposed rule to list and designate critical 
habitat for the marron bacora (85 FR 52516; August 26, 2020) for a 
detailed description of previous Federal actions concerning this 
species.

Summary of Changes From the Proposed Rule

    This final rule incorporates changes to our proposal (85 FR 52516; 
August 26, 2020) based on the comments we received, as discussed below 
under Summary of Comments and Recommendations. Based on these comments, 
we also incorporated, as appropriate, new information into our SSA 
report. Minor, nonsubstantive changes and editorial corrections were 
made throughout both documents in response to comments. However, the 
information we received during the public comment period on the 
proposed rule did not change our determination that the marron bacora 
meets the definition of an endangered species. The information provided 
a better understanding of a finer scale of the proposed critical 
habitat units, and we applied changes accordingly.
    Specifically, based on new information received from a private

[[Page 36226]]

landowner in a letter dated October 26, 2020, and after considering the 
benefits of exclusion versus the benefits of inclusion, we revised Unit 
1 (South Unit) to exclude 1.33 acres (0.54 ha) from the critical 
habitat designation. This unit now consists of approximately 1,704 ac 
(690 ha), which is a decrease of approximately 0.06 percent of the area 
proposed for Unit 1. Because of this exclusion, we revised the index 
and relevant unit maps, and we updated the coordinates or plot points 
from which those maps were generated. The information is available at 
https://www.regulations.gov under Docket No. FWS-R4-ES-2019-0050, and 
from the Caribbean Ecological Services Field Office website at https://www.fws.gov/office/caribbean-ecological-services/library.

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the marron bacora. The SSA team was composed of Service biologists, in 
consultation with other species experts. The SSA report represents a 
compilation of the best scientific and commercial data available 
concerning the status of the species, including the impacts of past, 
present, and future factors (both negative and beneficial) affecting 
the species (Service 2020, entire).
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act (16 U.S.C. 1531 et seq.), we sought the 
expert opinions of six appropriate specialists regarding the initial 
SSA report, version 1.0 (Service 2019, entire). We received comments 
from one of the six reviewers. The reviewer was generally supportive of 
our approach and made suggestions and comments that strengthened our 
analysis. We also considered all comments and information we received 
during the comment period. The SSA report, version 1.1 (Service 2020, 
entire), and other materials relating to this rule can be found at 
https://www.regulations.gov under Docket No. FWS-R4-ES-2019-0050.

I. Final Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
marron bacora is presented in the SSA report (Service 2020, entire).
    Marron bacora is a dry-forest, perennial shrub of the Solanaceae 
(or nightshade) family that is endemic to the Virgin Islands. It has 
small purple flowers and can grow to a height of around 9.8 feet (ft) 
(3 meters (m)). The plants produce a green fruit with white striations 
and golden yellow when ripe (Acevedo-Rodriguez 1996, p. 415). The 
species typically requires pollinators for reproductive success but may 
self-pollinate under certain conditions.
    The historical range of the species includes St. John and possibly 
St. Thomas, USVI; however, recent surveys found the species on the 
neighboring island, Tortola, British Virgin Islands (BVI). An 
additional, unconfirmed record from plant material was collected in 
1969 at Gordon Peak on Virgin Gorda, BVI (Acevedo-Rodr[iacute]guez 
1996, p. 415). Suitable habitat for the species occurs on Virgin Gorda; 
however, that is the only record of the species on that island, and 
there have been no other records since the single plant was found in 
1969. At least three populations on St. John have been extirpated.
    The species is currently found on St. John, USVI, and Tortola, BVI, 
with a fragmented distribution of seven populations on St. John (Nanny 
Point, Friis Bay, Johns Folly, Brown Bay Trail, Reef Bay Trail, Base 
Hill, Brown Bay Ridge, Sabbat Point, Reef Bay Valley, and Europa Ridge) 
and a single population on Tortola (Sabbath Hill). St. John has a 
history of land-use changes that resulted in habitat loss and 
degradation, further isolating suitable habitats in patches that were 
not readily connected. The flowers of marron bacora plants have both 
anthers and pistols with morphological characteristics to differentiate 
the male and female plants; the male plants have long anthers with 
shorter pistils while the female plants have short, recurved anthers 
with an elongated pistil. Even though the flowers are hermaphroditic, 
the species is functionally dioecious (separate male and female plants) 
obligate out-crosser and typically self-incompatible (Anderson et al. 
2015, p. 479), so the larger the population, the better for ensuring 
successful reproduction and maintaining genetic diversity within 
populations.
    Please refer to the proposed listing rule for the marron bacora (85 
FR 52516; August 26, 2020) for more species information.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an endangered species or a threatened species. The 
Act defines an ``endangered species'' as a species that is in danger of 
extinction throughout all or a significant portion of its range, and a 
``threatened species'' as a species that is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. The Act requires that we determine 
whether any species is an endangered species or a threatened species 
because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive

[[Page 36227]]

effects on the species, such as any existing regulatory mechanisms or 
conservation efforts. The Secretary determines whether the species 
meets the definition of an ``endangered species'' or a ``threatened 
species'' only after conducting this cumulative analysis and describing 
the expected effect on the species now and in the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent a decision by 
the Service on whether the species should be listed as an endangered or 
threatened species under the Act. It does, however, provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies. The following is a summary of 
the key results and conclusions from the SSA report, version 1.1; the 
full SSA report (Service 2020, entire) can be found at Docket No. FWS-
R4-ES-2019-0050 on https://www.regulations.gov.
    To assess marron bacora's viability, we used the three conservation 
biology principles of resiliency, redundancy, and representation 
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the 
ability of the species to withstand environmental and demographic 
stochasticity (for example, wet or dry, warm or cold years), redundancy 
supports the ability of the species to withstand catastrophic events 
(for example, droughts, large pollution events), and representation 
supports the ability of the species to adapt over time to long-term 
changes in the environment (for example, climate changes). In general, 
the more resilient and redundant a species is and the more 
representation it has, the more likely it is to sustain populations 
over time, even under changing environmental conditions. Using these 
principles, we identified the species' ecological requirements for 
survival and reproduction at the individual, population, and species 
levels, and described the beneficial and risk factors influencing the 
species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability.
    The stressors acting on the species as described in the SSA report 
include invasive species (plants and animals), predation, demographic 
and genetic consequences of small population size and density, human-
induced fires, insect pests and pathogens, changes in phenology and 
breeding systems, climate change/hurricanes, and habitat loss/
degradation.

Species Needs

    In order to understand the species' viability, we considered the 
best available information in describing the species' needs, including 
habitat, reproduction, and other environmental influences such as 
precipitation. We provide an overview of the species' suitable habitat 
description and conditions for successful reproduction.
    With marron bacora's endemism on two islands, the habitat is 
primarily based on forest type, soil characteristics, and elevation. 
The species occurs in dry, deciduous forest with dry soils (Acevedo-
Rodr[iacute]guez 1996, p. 415). Marron bacora plants are locally 
abundant in exposed sites that have been disturbed by erosion as well 
as in areas that have received moderate grazing, and around ridgelines 
as an understory component in diverse woodland communities (Carper and 
Ray 2008, p. 1). A habitat suitability model suggests that the vast 
majority of marron bacora habitat is found in the lower elevation (<85 
m, 278.87 ft) coastal scrub forest and that about 32 percent of the 
land area of the Virgin Islands National Park (VINP) harbors suitable 
habitat for the species (Vilella and Palumbo 2010, p. 10).
    The majority of the marron bacora habitat lies within the 
subtropical dry life zone, which is characterized by low annual 
rainfall and a high evapotranspiration ratio (Ewel and Whitmore 1973, 
p.10). In fact, more than 80 percent of St. John is considered as 
subtropical dry forest (Stanford et al. 2013, p. 173). The vegetation 
in the subtropical dry life zone tends to form a complete ground cover 
and is almost completely deciduous (Ewel and Whitmore 1973, p. 10). As 
an endemic to the Virgin Islands, marron bacora is adapted to these 
environmental conditions, and the species' phenology is synchronized 
with the rainy season. Most of the yearly rainfall on St. John occurs 
between May and December with official hurricane season from June 1 
through November 30.
    In terms of successful reproduction for the species, the system of 
breeding in marron bacora is very likely to be that of an obligate 
outcrosser with self-incompatibility (Stanford et al. 2013, pp. 174; 
Anderson et al. 2015, pp. 479). Recent findings support the 
hermaphroditic and functionally dioecious biology of marron bacora 
(Anderson et al. 2015, p. 479). There has been fruit production 
recorded on isolated plants suggesting the species still has mechanisms 
for self-pollination (Gibney pers. comm.).

[[Page 36228]]

Stressors Acting on the Species

    The species is impacted by natural and anthropogenic influences 
that may affect individual plants, the habitat, or populations in 
varying degrees. The magnitude, timing, frequency, and severity of the 
threats are influenced by additional biological and physical factors 
associated with the species' habitat. We provide a brief overview of 
those stressors and additional information can be found in the proposed 
listing rule (85 FR 52516) and in the SSA report (Service 2020, pp. 34-
41).
Nonnative/Invasive Species
    Marron bacora and its habitat are directly affected by nonnative 
animals and plants. White-tailed deer (Odocoileus virginianus) were 
introduced to St. John in the 1920s to provide hunting opportunities. 
Since then, the deer range freely across the island, foraging on the 
native vegetation, and according to local experts, populations of deer 
are increasing on the island (E. Gibney, pers comm. 2017). There are 
currently no estimates on the deer abundance on St. John, and with no 
native predators to control the deer population, they are naturalized 
and very abundant on the islands. The deer directly affect marron 
bacora by browsing on the plants (seedlings and saplings) and fruits, 
thus, precluding the species natural recruitment.
    Other nonnative species used as livestock, including cattle, hogs 
(Sus scrofa), goats (Capra aegagrus hircus), and donkeys (Equus 
africanus asinus), have also naturalized and have been recorded within 
the VINP. Depredation of marron bacora fruits and seedlings by feral 
ungulates has most likely caused the lack of natural recruitment. Deer 
and livestock not only forage on marron bacora plants, but they also 
trample plants and degrade the habitat conditions.
    Invasive plant species are also abundant on St. John and Tortola 
and outcompete native species for space, water, and light as they 
change the structure of the vegetative community and restrict available 
resources for native species. The marron bacora habitat at Nanny Point 
has been negatively affected by encroachment of invasive exotic grasses 
and vines following Hurricanes Irma and Maria in 2017 (IC Report 2018, 
pp. 3, 12). These exotic and invasive species outcompete marron bacora 
and further reduce the chances of natural recruitment by modifying the 
microhabitat conditions necessary for seedling establishment. The 
threat by invasive plant species is more severe at the biggest known 
populations of marron bacora, Nanny Point (USVI) and Sabbat Hill (BVI).
Insect Pests and Pathogens
    Although the majority of known marron bacora populations are 
relatively protected because they are found on lands managed for 
conservation by NPS, the small size of populations coupled with the 
effects of insect pests or pathogens could contribute to local 
extirpation. For example, although the Reef Bay Valley population 
consisted of 6 wild individuals and 60 introduced individuals in 2011, 
the population was considered extirpated by 2017, most likely due to a 
low survival rate for the introduced marron bacora individuals. 
However, an unknown pathogen was documented in that population 
(Stanford et al. 2013, p. 178), which also may have contributed to its 
loss. More recently, in 2018, 63 percent of the marron bacora 
individuals at Nanny Point showed some sort of stem dieback; however, 
it is not clear if this is due to some pest or disease (IC Report 2018, 
p. 5). Nonetheless, recent observations indicate that dieback is 
clustered mainly to the eastern corner of the Nanny Point population 
and associated with edge vegetation (vines and shrub land vegetation 
exposed to salt spray).
    In addition, we recorded the presence of the Jacaranda bug 
(Insignorthezia insignis) at the Nanny Point population, and the scale 
insects, Praelongorthezia praelonga (Douglas) and Insignorthezia 
insignis, on plants at the gardens of the National Park Service (NPS) 
facilities (Service 2017a, p. 14). The Jacaranda bug is a sap-feeding 
insect in the Orthezidae family. The scale insect (Praelongorthezia 
praelonga) can also damage plants directly by sucking their sap, or 
indirectly by injecting toxic salivary secretions that may attract 
ants, transmit pathogens, and encourage growth of sooty molds (Ramos et 
al. 2018, p. 273). Our assessment of the effects of these insects and 
pathogens on marron bacora is based on the information available 
regarding their effects on other species of plants that occur on St. 
John (e.g., Ramos et al. 2018, p. 273), and on our observations in the 
field during marron bacora assessments (Monsegur and Yrigoyen 2018, 
pers. comm.). No studies have been carried out to ascertain the extent 
of potential impacts by these pests specifically on marron bacora. 
However, the low number and small size of the known populations makes 
marron bacora vulnerable to insect pests, which may constrain the 
already reduced reproductive output and recruitment of the species.
Effects of Small Population Sizes
    The consequences of small population sizes affect sessile species 
by limiting the ability to interact with others and maintain genetic 
diversity. Marron bacora currently shows overall low numbers of 
individuals, low numbers of populations, and low numbers of individuals 
at each population site, which is reflected in low resiliency, 
redundancy, and representation. While the genetic diversity at the 
species level of marron bacora is relatively high, the majority of its 
diversity is confined to the largest population at Nanny Point 
(Stanford 2013, p. 178). The current fragmented population distribution 
may result in Allee effects due to small population sizes, a lack of 
genetic exchange among populations, and eventual genetic drift. Allee 
effects influence the individual fitness of plants; with smaller, less 
dense populations, successful reproduction declines because there are 
fewer pollination opportunities between individual plants that have a 
greater distance between them.
Habitat Loss/Degradation
    By 1717, the forested landscape of St. John was parceled into more 
than 100 estates for agriculture (i.e., sugarcane and cotton), and the 
majority of this landscape was deforested. Under this land-use regime, 
marron bacora populations were decimated, as the species had no 
economic importance or use. The current fragmented distribution of 
marron bacora is most likely the result of that historical land 
clearing for agriculture and the subsequent development that has 
occurred since the 1700s. Even though these land-use changes occurred 
centuries ago, long-lasting effects continue to impact the condition of 
the habitat; the effects on the species are exacerbated by the species' 
reproductive biology, the absence of seed dispersal, suspected fruit 
predation, and further habitat modification by feral ungulates.
    At present, the Friis Bay (St. John, USVI) and Sabbath Hill 
(Tortola, BVI) populations are located on private lands vulnerable to 
habitat modification due to urban development. In addition, the Nanny 
Point and Johns Folly populations are situated within VINP lands just 
at the park boundary, and there is potential for urban and tourism 
development in the future, resulting in possible direct impacts to the 
species and interrelated effects (lack of habitat connectivity and 
cross pollination, and further habitat encroachment by exotic plant 
species). While the land that harbors the Nanny Point population is

[[Page 36229]]

located on VINP, the adjacent private land could be at risk of 
development, which may directly affect the species' most resilient 
population.
Climate Change and Hurricanes
    Hurricanes and tropical storms frequently affect the islands of the 
Caribbean; thus, native plants should be adapted to such disturbance. 
In fact, successional responses to hurricanes can influence the 
structure and composition of plant communities in the Caribbean islands 
(Van Bloem et al. 2005, p. 576). However, climate change is predicted 
to increase tropical storm frequency and intensity and also cause 
severe droughts (Hopkinson et al. 2008, p. 255). Climate model 
simulations indicate an increase in global tropical cyclone intensity 
in a warmer world, as well as an increase in the number of very intense 
tropical cyclones, consistent with current scientific understanding of 
the physics of the climate system (USGCRP 2018, p. 2). The 
vulnerability of species to climate change is a function of sensitivity 
to changes and exposure to those changes, and the adaptive capacity of 
the species (Glick et al. 2011, p. 1). Within natural conditions, it is 
likely that marron bacora is well-adapted to these atmospheric events. 
However, the cumulative effects of severe tropical storms and 
associated increased sediment runoff (erosion), along with the species' 
small population size and reduced natural recruitment, may jeopardize 
the future establishment of seedlings along drainage areas usually 
associated with suitable habitat for marron bacora (Ray and Stanford 
2005, p. 2). There is evidence of direct impacts to the Nanny Point 
population due to a flash flood event associated with Hurricane Irma 
that hit St. John on September 6, 2017 (Service 2017b, p. 3).
    Additive climate change stressors projected for the future include: 
(a) increased number and intensity of strong storms, (b) increased 
temperatures, and (c) shifts in the timing and amounts of seasonal 
precipitation patterns. Despite projected increased storm intensity and 
frequency related to future hurricane seasons, climate change models 
for tropical islands predict that, for example, by the mid-21st 
century, Puerto Rico will be subject to a decrease in overall rainfall, 
along with an increase in annual drought intensity (Khalyani et al. 
2016, pp. 274-275). Thus, due to the proximity of Puerto Rico to St. 
John, and that these islands belong to the same biogeographical unit 
(Puerto Rican Bank), these model predictions could also extend to the 
USVI (including St. John). Given the low number of known populations 
and individuals, and the lack of natural recruitment of marron bacora, 
the species may not have the genetic breadth to adapt to these 
predicted conditions. In addition, there is little knowledge of marron 
bacora's life history (e.g., fruit/seed dispersers and germination 
requirements in the wild); the species has a restricted known range 
(e.g., mainly St. John); and its habitat is degraded due to free-
ranging populations of feral animals (e.g., deer and goats), which 
precludes recruitment of new individuals. Moreover, in 2017, the island 
of St. John was affected by two catastrophic hurricanes (Irma and 
Maria), resulting in direct adverse impacts to individuals of marron 
bacora and its habitat. Marron bacora habitat remains encroached by 
weedy plants that persist more than 2 years after these atmospheric 
events and continue to affect the species.

Synergistic Effects

    Synergistic interactions are possible between the effects of 
climate change and other potential threats such as nonnative species, 
pests, and development. The extent of impacts to the species due to 
synergistic threats is not well understood, as there is uncertainty in 
how nonnative species (plants and animals) may respond to climate 
variables such as increased drought and changes in hurricane frequency 
and intensity. We expect the synergistic effects of the current and 
future threats acting on the species will exacerbate the decline in the 
species' viability by continued declines in reproductive success. 
Projecting the extent of synergistic effects of climate change on 
marron bacora is too speculative due to the complexity and uncertainty 
of the species' response to the combination of dynamic factors that 
influence its viability.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.

Existing Regulatory Mechanisms and Conservation Efforts

    The existing regulatory mechanisms for marron bacora include 
Federal and Territory protections of the species that include NPS 
Organic Act and U.S. Virgin Island's Department of Planning and Natural 
Resources listing of the species. The NPS' Organic Act (54 U.S.C. 
100101 et seq.) requires the NPS to manage the national parks, 
including the VINP on St. John, to conserve their scenery, natural and 
historic objects, and wildlife. In addition, the National Parks Omnibus 
Management Act of 1998 (Pub. L. 105-391), Title II, ``National Park 
System Resource Inventory and Management,'' mandates research in order 
to enhance management and protection of national park resources by 
providing clear authority and direction for the conduct of scientific 
study in the National Park System and to use the information gathered 
for management purposes. This law affects not only the NPS, but other 
Federal agencies, universities, and other entities that conduct 
research within the National Park system. Currently, the NPS has 
implemented its resource management responsibilities through its 
management policies, section 4.4.1, which state that NPS ``will 
maintain as parts of the natural ecosystems of parks all plants and 
animals native to park ecosystems'' (NPS 2006, p. 42).
    The Territory of the U.S. Virgin Islands currently considers marron 
bacora to be endangered under the Virgin Islands Indigenous and 
Endangered Species Act (V.I. Code, title 12, chapter 2), and an 
existing regulation provides for protection of endangered and 
threatened wildlife and plants by prohibiting the take, injury, or 
possession of indigenous plants. While these efforts and mechanisms 
provide some protections for the species, they have not substantively 
reduced the main factors affecting the species' viability.
    Efforts to conserve the species have included a captive propagation 
and planting program. Marron bacora has successfully been propagated by 
a St. John horticulturist with cuttings and manually assisting 
pollination by dusting the flowers (B. Kojis and R. Boulon, pers comm., 
November 20, 1996). Marron bacora specimens were then distributed to 
various places with suitable habitat in the Virgin Islands (Ray and 
Stanford 2005, p. 3). An

[[Page 36230]]

implementation plan was developed to conduct shade-house propagation of 
marron bacora using both seedlings and cuttings for reintroduction 
within VINP (Ray and Stanford 2003, p. 3). A Nanny Point landowner 
funded and implemented a conservation plan for marron bacora through 
germination and cloning of adult individuals to enhance natural 
populations of the species at Nanny Point, Brown Bay Trail, and Johns 
Folly (Ray and Carper 2009, p. 6; Ray 2005, p. 4). Under this 
conservation plan, all individuals of marron bacora at Nanny Point were 
flagged and tagged, had their basal diameter and height measured, and 
were georeferenced (Ray 2005, p. 3). This plan resulted in the 
propagation of at least 300 cuttings and their latter planting to 
augment natural populations (Ray 2005, p. 6). Such efforts continued 
with the enhancement (augmentation) of the Brown Bay Trail, Johns 
Folly, and Nanny Point populations by planting cutting material; these 
efforts saw overall survival of 97 percent 2 months after planting, but 
the plants' long-term survival proved to be low due to ongoing threats 
to the habitat (Ray and Carper 2009, p. 5). While the species has been 
successfully propagated, the reintroductions have yielded unsuccessful 
results with a very low long-term survival rate for propagated and 
reintroduced plants, and even lower for relocated adult plants.
    In 2017, funding was provided to Island Conservation through the 
Service's Coastal Program to: (1) Propagate at least 100 marron bacora 
individuals to enhance the largest known population at Nanny Point, (2) 
introduce propagated materials to the Nanny Point population, (3) 
assess the extent of impacts of invasive mammal species to marron 
bacora and its habitat, (4) assess the extent of impacts by invasive 
mammal species to additional sites identified for marron bacora 
introduction, and (5) provide management recommendations for invasive 
mammals in order to significantly advance the recovery of marron bacora 
(IC Report 2018, p. 1). This project has been temporarily delayed in 
order to allow archaeological surveys to be completed prior to any out-
planting.

Current Conditions

    To determine the current condition of the species, we evaluated the 
resiliency, redundancy, and representation of populations across the 
landscape considering past and current stressors acting on the species 
and its habitat. The description of the species' current condition is 
described in more detail in the SSA report (Service 2020, pp. 19-28).
Resiliency
    We generated resiliency scores using the best available information 
for marron bacora by combining scores for three habitat metrics 
(protection/development risk, feral ungulates, and pest depredation), 
and one population metric (population size and/or trend, dependent on 
availability). The scores for each population across all metrics were 
summed, and final population resilience categories were assigned (see 
Table 2, below).

  Table 1--Description of How Habitat and Population Factors Were Scored To Determine Marron Bacora Resilience
----------------------------------------------------------------------------------------------------------------
                                              Habitat metrics                        Population Metric
                                 -------------------------------------------------------------------------------
              Score               Habitat protection/                       Pest presence/     Population size/
                                   development risk     Feral ungulates       depredation            trend
----------------------------------------------------------------------------------------------------------------
-1..............................  Habitat not         High number of      High number of      Relatively low
                                   protected, at       exotic mammals.     pests present.      population size
                                   risk of being                                               and/or declining
                                   developed.                                                  trend.
0...............................  Some habitat        Unknown or          Moderate number of  Relatively
                                   protected, and      moderate number     pests present.      moderate
                                   some at risk of     of exotic mammals.                      population size
                                   being developed.                                            and stable trend,
                                                                                               or high degree of
                                                                                               uncertainty in
                                                                                               population size/
                                                                                               trends.
1...............................  Habitat protected.  Exotic mammals      Pests absent......  Relatively high
                                                       absent.                                 population size
                                                                                               and/or growth.
----------------------------------------------------------------------------------------------------------------


Table 2--Resiliency Score Categories for Marron Bacora Using Habitat and
                           Demographic Metrics
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Resiliency Scores:
    Low Resilience.......................  -4 to -2.
    Moderately Low Resilience............  -1.
    Moderate Resilience..................  0.
    Moderately High Resilience...........  1.
    High Resilience......................  2 to 4.
------------------------------------------------------------------------

    The species is known from two islands with 11 known populations, of 
which 3 are extirpated. The resiliency of the extant populations varies 
according to the abundance of individuals and habitat conditions at 
each location. The remaining eight extant populations vary between a 
single individual to 201 plants, and the habitat conditions vary 
according to the site location. Additional information regarding the 
details of the populations can be found in the proposed listing rule 
(85 FR 52516).

Nanny Point (St. John, USVI)

    The largest known population is on St. John at Nanny Point; in 
2017, this population consisted of 75 mature adult individuals, 4 
natural seedlings, and 44 planted individuals from past population 
enhancement efforts (Service 2017a, p. 7). This population has been 
negatively affected by herbivory, hurricanes, invasive plants, and the 
Jacaranda bug. The Nanny Point population has low resilience because, 
while the site is partially within VINP, it also overlaps with 
unprotected, private lands; the population has a high presence of feral 
ungulates, high insect predation, and a declining population size.

Friis Bay (St. John, USVI)

    With the discovery of a new population in the BVI, this is now 
believed to be the third largest natural

[[Page 36231]]

population of marron bacora, with an estimated 33 individuals (Ray and 
Stanford 2005, p. 16). The current resilience of the Friis Bay 
population is low because the habitat is at risk of high impacts from 
feral ungulates.

Johns Folly (St. John, USVI)

    This site is located upslope in a ravine about 700 m (2,296.6 ft) 
northwest of the Nanny Point population. A 2017 population assessment 
identified only 4 natural individuals and 1 natural seedling, and 13 
plants corresponding to planted material from a previous population 
enhancement with material from the Nanny Point population (Service 
2017a, p. 7). The Johns Folly population has low resilience due to 
habitat loss and fragmentation by development, low density of 
pollinators, high presence of feral ungulates, and a declining 
population.

Brown Bay Trail (St. John, USVI)

    The Brown Bay Trail site is located along the Brown's Bay hiking 
trail within the VINP, an area of mature secondary dry forest located 
on the northeastern shore of St. John. The site is located on a slope 
approximately 60 m (196.85 ft) from shore and the population is 
composed of a single natural individual and planted individuals that 
were part of a 2009 population enhancement using material propagated 
from the Nanny Point population. The Brown Bay Trail population has low 
resilience due to high presence of feral ungulates, high insect 
predation, and a declining population trend.

Reef Bay Trail (St. John, USVI)

    The Reef Bay Trail locality is a relatively new population located 
during a 2017 population assessment (Service 2017a, p. 11). A 
population assessment in 2017 discovered seven wild individuals, 85 
percent in flower and some individuals producing fruits. The Reef Bay 
Trail population has moderately low resilience due to high presence of 
feral ungulates that are causing an overall decline across all 
populations (Roberts 2017, entire).

Base Hill (St. John, USVI)

    The population at Base Hill consists of one natural individual (Ray 
and Stanford 2005, p. 16). There have been no subsequent visits to this 
population since 2005; thus, no further data on the status of this 
individual are known. The current condition of this population is 
unknown.

Brown Bay Ridge (St. John, USVI)

    In 2017, one wild individual was discovered on top of a ridge 
approximately 0.25 miles (mi) (0.40 kilometers (km)) from the Brown Bay 
Trail population (Cecilia Rogers 2017, pers. comm.). The Brown Bay 
Ridge population has moderately low resilience because, while there is 
a high presence of feral ungulates in the area, the area harbors 
suitable habitat and the single documented wild individual was a 
juvenile plant, which indicates recruitment has occurred at this 
location.

Sabbat Point (St. John, USVI)

    This population was reported as a single natural individual in 2005 
(Ray and Stanford 2005, p. 16). The individual was never relocated in a 
subsequent site visit, and the site showed evidence of disturbance 
based on the abundance of river tamarind (Leucaena leucocephala), 
roving prickly pear cactus (Opuntia repens), and wild pineapple 
(Bromelia pinguin) (Service 2017a, p. 4). This population is considered 
extirpated.

Reef Bay Valley (St. John, USVI)

    This population is on the southern coast of St. John, along the 
shore near White Cliffs. In 2005, 6 wild and 60 introduced individuals 
were reported at the Reef Bay site (Ray and Stanford 2005, p. 16). 
Further assessments of this area were unsuccessful in detecting any 
marron bacora (Service 2017a, p. 11). Thus, the best available 
information indicates this population is extirpated, and no individuals 
are known in its proximity.

Europa Ridge (St. John, USVI)

    The Europa Ridge population was a single individual when documented 
in the early 1990s (Acevedo-Rodriguez, P. 1996, p. 415). Based on the 
latest habitat assessments by the Service, this population is likely 
extirpated (Service 2017a, p. 11).

Sabbath Hill (Tortola, BVI)

    In 2018, surveys on Tortola identified a plant morphologically 
consistent with marron bacora, near Sabbath Hill. On a follow-up trip 
to confirm marron bacora in the area, a population of approximately 46 
to 48 individuals was identified with most plants described as small 
and only about 7 as large. The Sabbath Hill population has low 
resilience due to a high presence of feral ungulates and the location 
of the population not being associated with any protected lands.
    There is little evidence of sustained natural recruitment in any of 
the known populations of marron bacora. The population structure at 
Nanny Point and Johns Folly is characterized by the absence of 
individuals smaller than 3.2 ft (1 m) high, with little evidence of 
seedlings or juveniles (three for Nanny Point and one for Johns Folly) 
(Service 2017a, p. 7). These populations consist primarily of 
reproductive individuals, as 92 percent and 75 percent of the plants, 
respectively, were recorded in flower during a recent survey (Service 
2017a, p. 7). The Johns Folly population was composed of 4 natural 
adult individuals (reproductive size individuals naturally occurring at 
this site) or 36 percent of the total (11 plants) (Service 2017a, p. 
9).
    All eight extant populations are declining and have moderately low 
to low resiliency; many populations are on the brink of extirpation. 
The entire species consists of 324 known individuals, with 201 of those 
plants located within a single population (Nanny Point).
Redundancy and Representation
    The species is showing very low to no natural recruitment across 
all populations. Only three populations have more than 18 individuals, 
two populations have 18 individuals, and the three remaining 
populations have 7 or fewer individuals. Most of the populations are 
small and isolated with little to no connectivity. Marron bacora 
currently shows overall low numbers of individuals, low numbers of 
populations, and low numbers of individuals at each population site. 
The overall resiliency, redundancy, and representation of this species 
are low.

Future Conditions

    As part of the SSA, we developed multiple future condition 
scenarios to capture the range of uncertainties regarding future 
threats and the projected responses by marron bacora. Our scenarios 
included a status quo scenario, which incorporated the current risk 
factors continuing on the same trajectory that they are on now. We also 
evaluated two additional future scenarios, one that considered 
increasing levels of risk factors resulting in elevated negative 
effects on marron bacora populations. The other scenario considered 
improved environmental and habitat conditions through conservation 
actions including land management and invasive plant and animal 
management. However, we determined that the current condition of marron 
bacora and the projections for all scenarios are consistent with an 
endangered species status (see Determination of Marron Bacora's

[[Page 36232]]

Status, below); we are not presenting the results of the future 
scenarios in this rule. Please refer to the SSA report (Service 2020, 
pp. 53-63) for the full analysis of future conditions and descriptions 
of the associated scenarios.
    Please refer to the proposed listing rule (85 FR 5216) and the SSA 
report (Service 2020, entire) for a more detailed information regarding 
the evaluation of the marron bacora's biological status, the influences 
that may affect its continued existence, and the modeling efforts 
undertaken to further inform our analysis.

Summary of Comments and Recommendations

    In the proposed rule published on August 26, 2020 (85 FR 52516), we 
requested that all interested parties submit written comments on the 
proposal by October 26, 2020. We received eight comments, of which four 
were substantive. We also contacted appropriate Federal (NPS) and 
State/Territory (USVI Department of Planning and Natural Resources 
(DPNR)) agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. We did 
not receive any comments from NPS regarding the SSA report or the 
proposed rule. The DPNR comments are summarized below. A newspaper 
notice inviting general public comments was published in The Virgin 
Islands Daily News on August 28, 2020. We did not receive any requests 
for a public hearing. All substantive information provided during the 
comment period has either been incorporated directly into the SSA 
report or this final rule or is addressed below.

Peer Reviewer Comments

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from knowledgeable 
individuals with scientific expertise that included familiarity with 
the marron bacora and its habitat, biological needs, and threats. 
During development of the SSA report, we reached out to six peer 
reviewers and received responses from one. We reviewed all comments 
received from the peer reviewer for substantive issues and new 
information regarding the marron bacora. All comments were incorporated 
into the SSA report prior to the proposed rule. The reviewer provided 
editorial and technical comments that were generally supportive of our 
approach; the commenter made suggestions and comments that strengthened 
our analysis and improved the SSA report. Peer reviewer comments are 
addressed in the following summary and were incorporated into the SSA 
report and, accordingly, in this final rule as appropriate.
    (1) Comment: One peer reviewer noted that the Service did not 
consider pollinator loss as a threat to the species. Most Solanum spp. 
require a specific type of bee for ``buzz'' pollination, where the 
motion of vibrating bees facilitates pollen exchange. The peer reviewer 
suggested pollinator limitation (or bee die-off) could be another cause 
of marron bacora's rarity. The reviewer provided a reference regarding 
morphology of the genus that facilitated pollination (Falc[atilde]o et 
al. 2016, entire).
    Response: We acknowledge declines in pollinators across the globe 
due to a multitude of environmental stressors; however, fruit 
production has been observed in wild populations and cultivated plants 
indicative of successful pollination. The reference provided, 
Falc[atilde]o et al. 2016, describes the reproductive morphology and 
pollen release mechanisms in the congener, Solanum luridifuscescens. 
Some of the information in the paper provides descriptions for Solanum 
in general that support information in the SSA report, such as the lack 
of nectaries and pollen as the only reward (Service 2020, p. 31). The 
SSA report acknowledges observations by Service staff of abundant 
activity of the native carpenter bees (Xylocopa mordax) visiting the 
flowers of marron bacora consistent with a massive flowering and 
fruiting event (Service 2017a, p. 7). At present, the island of St. 
John no longer implements large-scale agriculture using pesticides, 
which may contribute to the loss of pollinators. In addition, the 
majority of the habitat on St. John is a forested landscape designated 
as a National Park and managed by NPS. Therefore, the best available 
science does not indicate pollinator loss is a current threat to the 
species.

Territory Comments

    (2) Comment: The USVI DPNR supported our decision that marron 
bacora is in danger of extinction and highlighted the need to address 
the possible adverse effects on the species' viability due to predation 
by feral animals. The agency also provided comments on the proposed 
critical habitat designation that acknowledge much of the proposed 
critical habitat is located within protected lands currently managed by 
NPS. However, the comment indicated that there are areas adjacent to 
NPS lands zoned for development that fall within the proposed 
designated critical habitat and recommended that the Service make every 
effort to avoid including in the critical habitat designation any 
developed areas where land is covered by buildings, pavement, or other 
structures. The area identified by the agency also includes areas that 
are not yet developed but are zoned for development under U.S. Virgin 
Islands Code, title 29 ``Public Planning and Development,'' chapter 3 
``Virgin Islands Zoning and Subdivision Law'' (see section 228 for all 
uses).
    Response: As described in the proposed critical habitat rule, 
critical habitat does not include human made structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) or the 
land on which they are located, so these features within designated 
units are not considered critical habitat.
    Regarding the adjacent areas that are zoned but not yet developed, 
the DPNR did not provide specific information regarding how critical 
habitat may impact those areas or how the benefits of exclusion 
outweigh the benefits of inclusion. Therefore, in the absence of 
supporting information about the benefits of exclusion, we determined 
that these areas meet the definition of critical habitat and have no 
basis to exclude those areas.

Public Comments

    (3) Comment: One commenter stated that the proposed critical 
habitat designation improperly characterized ``unoccupied habitat'' in 
Nanny Point as ``occupied habitat.'' The commenter claimed the Service 
proposed to designate areas that are not currently occupied by the 
species without going through the analysis required by the Act and 
Service regulations regarding the designation of unoccupied habitat. 
The commenter further stated that the Service cannot designate these 
private parcels and easements as ``unoccupied'' critical habitat 
because they are not reasonably certain to contribute to the 
conservation of the species, given the best available science in the 
record regarding the plant's reproduction, recruitment, and dispersion.
    Response: The best available science supports our conclusion that 
the Nanny Point unit is occupied. It contains the largest known 
population of marron bacora. Data from Nanny Point (2017, 2018, and 
2019) show that individuals of marron bacora occur on both sides of the 
access corridor (easements), and likely occur along the boundaries of 
adjacent private parcels.
    Our regulations at 50 CFR 424.02 define the ``geographical area 
occupied by the species'' as an area that may generally be delineated 
around species'

[[Page 36233]]

occurrences, as determined by the Secretary (i.e., range). For marron 
bacora, we delineated the two units based on the species' occurrences 
and contiguous suitable habitat that may support the species; the area 
within the units contain one or more of the physical and biological 
features that were identified as essential to the conservation of the 
species. Additionally, consistent with the regulations at 50 CFR 
424.12(d), when several habitats, each satisfying the requirements for 
designation as critical habitat, are located in proximity to one 
another, the Secretary may designate an inclusive area as critical 
habitat. The unit in question contains multiple occurrences of marron 
bacora that are in close proximity to one another and are connected by 
continuous forested habitat. Thus, we are designating an inclusive area 
as critical habitat. The species occurs within the boundaries of the 
entire unit; therefore, the unit is occupied by marron bacora at the 
time of listing.
    We are designating critical habitat based on the best available 
commercial and scientific information. As indicated in the proposed 
rule, we based this critical habitat designation on the species' 
occurrence data and a habitat suitability model (Palumbo et al. 2016, 
p. 5; Service 2020, pp. 15-16, 28), which used elevation, slope, soil 
association, and vegetation types as variables defining the habitat of 
the species. The needs of the species and its habitat are described in 
more detail in the SSA report (Service 2020, pp. 12-16). We revised the 
boundaries of the critical habitat designation based on new elevation 
data from a recently discovered marron bacora population at Reef Bay 
Trail, and on the continuity of forested habitat. This approach is 
consistent with the definition of ``geographical area occupied by the 
species'' at 50 CFR 424.02.
    (4) Comment: A landowner stated that a private parcel and an 
associated private easement should be excluded from the South Unit 
because the benefits of exclusion outweigh the benefits of inclusion 
and the exclusion will not result in extinction of the species. The 
commenter explained that the conservation efforts already undertaken by 
the landowner, including ``captive propagation from seed and cutting, 
population enhancement, translocation of plants, and subsequent 
monitoring,'' have demonstrably improved and enhanced the survival of 
the known marron bacora populations, particularly the Nanny Point 
population, included in a conservation agreement. The commenter 
indicated there is a reasonable expectation that the remaining 
conservation management strategies and actions in the agreement will be 
implemented and will continue to protect the Nanny Point population.
    Response: We have taken into consideration the conservation efforts 
by the landowner and conducted an exclusion analysis to determine if 
the area described warrants exclusion from the designated critical 
habitat. We found that the benefits of exclusion outweigh the benefits 
of inclusion, and we have excluded this parcel from the final critical 
habitat designation. Please see Private or Other Non-Federal 
Conservation Plans or Agreements and Partnerships, below, for the 
details and analysis.

Determination of Marron Bacora's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of endangered species 
or threatened species because of any of the following factors: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) Overutilization for commercial, recreational, 
scientific, or educational purposes; (C) Disease or predation; (D) The 
inadequacy of existing regulatory mechanisms; or (E) Other natural or 
manmade factors affecting its continued existence.
    We have determined that the primary threats acting on marron bacora 
are habitat destruction or modification by exotic mammal species (e.g., 
white-tailed deer, goats, pigs, and donkeys) and invasive plants and 
exotic, plants (e.g., guinea grass) (Factor A); herbivory by nonnative, 
feral ungulates and insect pests (Factor C); and the lack of natural 
recruitment, absence of dispersers, fragmented distribution and small 
population size, lack of genetic diversity, and climate change (Factor 
E).

Status Throughout All of Its Range

    After evaluating threats acting on the species and the species' 
response to those threats, we found that the species is currently in 
danger of extinction throughout its range.
    Marron bacora is adapted for life in the dry forests of St. John, 
USVI, and Tortola, BVI. These islands have endured landscape changes 
over time and will continue to be affected by human visitation and 
development. The largest extant population on St. John is within the 
VINP boundaries and is protected from future development; however, 
neighboring areas are vulnerable to development as the human population 
increases. Depredation from ungulates, which occurs even in the VINP, 
is largely responsible for the low levels of seedling recruitment that 
have caused the lack of natural recruitment. The species is also 
affected by insect pests along with habitat degradation by nonnative 
plants and animals.
    There are currently 11 known historical and current populations. 
Three of these populations are considered extirpated, two are 
represented by only a single individual (possibly functionally 
extirpated), and five are represented by very low numbers of 
individuals. Only the single population at Nanny Point has more than 
100 individuals, and between 2010 and 2017, this population declined by 
over half. Seedlings were discovered at this site, likely assisted by 
release/reproduction due to opening of canopy/moist soil conditions 
from the hurricanes, but those seedlings were being affected by 
ungulate herbivory that was reducing survival. Despite having the 
greatest number of individuals, Nanny Point is in danger of extirpation 
due to little or no reproductive output, the continued presence of 
nonnative mammals, and habitat degradation from recent hurricanes and 
invasive plant species. Additionally, it has seen an almost 50 percent 
reduction in the number of individuals over the last 10 years. Across 
the entire range, the lack of evidence of reproduction/recruitment is 
resulting in the continued decline of all populations. Reintroductions 
to date have resulted in limited survival (28 percent) and have not 
yielded any increase in reproductive success (either have not achieved 
reproductive status or have not successfully reproduced). Resiliency 
for all extant populations is low as are redundancy and representation. 
There is very little evidence of natural recruitment, with recent 
seedling evidence from only two populations. Due to the lack of 
recruitment across all populations, the species is at risk of 
extinction.
    Further, the threats acting on the species are likely to continue 
at the existing rate or increase without management of marron bacora 
and the

[[Page 36234]]

identified threats, such as nonnative, invasive species. The species is 
a narrow endemic and has suffered extirpation of populations across its 
limited range; most remaining populations have only a single or few 
individuals. The species has lost redundancy, and remaining populations 
have low resiliency. The impacts from herbivory by nonnative species 
have impaired the viability of marron bacora to the point of imminent 
decline across the species' entire range. Despite efforts to propagate 
the species and re-establish it in the wild, plants are not reproducing 
offspring sufficiently to support adequately resilient populations. 
Thus, after assessing the best available information, we conclude that 
marron bacora is in danger of extinction throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. We have determined that marron bacora is in danger of 
extinction throughout all of its range, and accordingly, did not 
undertake an analysis to determine whether there may be any significant 
portion of its range. Because marron bacora warrants listing as 
endangered throughout all of its range, our determination does not 
conflict with the decision in Center for Biological Diversity v. 
Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), because that decision 
related to significant portion of the range analyses for species that 
warrant listing as threatened, not endangered, throughout all of its 
range.

Determination of Status

    Our review of the best scientific and commercial data information 
indicates that marron bacora meets the Act's definition of an 
endangered species. Therefore, we are listing marron bacora as an 
endangered species in accordance with sections 3(6) and 4(a)(1) of the 
Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act calls for the Service to develop 
and implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public. The recovery outline guides the immediate 
implementation of urgent recovery actions and describes the process to 
be used to develop a recovery plan. Revisions of the plan may be done 
to address continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Recovery teams (composed of 
species experts, Federal and State agencies, nongovernmental 
organizations, and stakeholders) are often established to develop 
recovery plans. When completed, the recovery outline, draft recovery 
plan, and the final recovery plan will be available on our website 
(https://www.fws.gov/endangered), or from our Caribbean Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Once this species is listed (see DATES, above), funding for 
recovery actions will be available from a variety of sources, including 
Federal budgets, State programs, and cost share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the Territory of the 
U.S. Virgin Islands will be eligible for Federal funds to implement 
management actions that promote the protection or recovery of marron 
bacora. Information on our grant programs that are available to aid 
species recovery can be found at: https://www.fws.gov/grants.
    Please let us know if you are interested in participating in 
recovery efforts for this species. Additionally, we invite you to 
submit any new information on this species whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is listed as an endangered or 
threatened species and with respect to its critical habitat, if any is 
designated. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) 
of the Act requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of any endangered or threatened species or destroy 
or adversely modify its critical habitat. If a Federal action may 
affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with the Service.
    Federal agency actions within the species' habitat that may require 
conference, consultation, or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on Federal lands administered by NPS (Virgin Islands 
National Park) and privately owned lands that may require a Federal 
permit.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered plants. 
The prohibitions

[[Page 36235]]

of section 9(a)(2) of the Act, codified at 50 CFR 17.61, make it 
illegal for any person subject to the jurisdiction of the United States 
to import or export; remove and reduce to possession from areas under 
Federal jurisdiction; maliciously damage or destroy on any such area; 
remove, cut, dig up, or damage or destroy on any other area in knowing 
violation of any law or regulation of a State or in the course of an 
violation of a State criminal trespass law; deliver, receive, carry, 
transport, or ship in interstate or foreign commerce, by any means 
whatsoever and in the course of commercial activity; or sell or offer 
for sale in interstate or foreign commerce an endangered plant. Certain 
exceptions apply to employees of the Service, the National Marine 
Fisheries Service, other Federal land management agencies, and State 
conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered plants under certain circumstances. Regulations 
governing permit issuance are codified at 50 CFR 17.62. With regard to 
endangered plants, a permit may be issued for scientific purposes or 
for enhancing the propagation or survival of the species. There are 
also certain statutory exemptions from the prohibitions, which are 
found in section 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that will or will not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a listing on 
proposed and ongoing activities within the range of the listed species. 
Based on the best available information, the following actions are 
unlikely to result in a violation of section 9, if these activities are 
carried out in accordance with existing Federal and Territorial 
regulations and permit requirements; this list is not comprehensive:
    <bullet> Recreational use of existing trails and pathways.
    <bullet> Routine maintenance of existing public roads, trails, and 
pathways.
    <bullet> Archeological activities that minimize impacts to native 
species.
    <bullet> Landscaping activities within residential areas that do 
not extend to native vegetation.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act if they 
are not authorized in accordance with applicable laws (this list is not 
comprehensive):
    <bullet> Modifying the habitat of the species on Federal lands 
without authorization (e.g., unauthorized opening of trails within NPS 
lands); and
    <bullet> Removing, cutting, digging up, or damaging or destroying 
of the species on any non-Federal lands in knowing violation of any law 
or regulation of the Territory of the U.S. Virgin Islands or in the 
course of any violation of the Territory of U.S. Virgin Islands' 
criminal trespass law.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Caribbean 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Critical Habitat

Background

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

[[Page 36236]]

outside the geographical area occupied by the species at the time it is 
listed, upon a determination that such areas are essential for the 
conservation of the species. The implementing regulations at 50 CFR 
424.12(b)(2) further delineate unoccupied critical habitat by setting 
out three specific parameters: (1) when designating critical habitat, 
the Secretary will first evaluate areas occupied by the species; (2) 
the Secretary will only consider unoccupied areas to be essential where 
a critical habitat designation limited to geographical areas occupied 
by the species would be inadequate to ensure the conservation of the 
species; and (3) for an unoccupied area to be considered essential, the 
Secretary must determine that there is a reasonable certainty both that 
the area will contribute to the conservation of the species and that 
the area contains one or more of those physical or biological features 
essential to the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act published in the 
Federal Register on July 1, 1994 (59 FR 34271), the Information Quality 
Act (section 515 of the Treasury and General Government Appropriations 
Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our 
associated Information Quality Guidelines provide criteria, establish 
procedures, and provide guidance to ensure that our decisions are based 
on the best scientific data available. They require our biologists, to 
the extent consistent with the Act and with the use of the best 
scientific data available, to use primary and original sources of 
information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States (Territories) and counties; scientific status 
surveys and studies; biological assessments; other unpublished 
materials; or experts' opinions or personal knowledge.
    As the regulatory definition of ``habitat'' reflects (50 CFR 
424.02), habitat is dynamic, and species may move from one area to 
another over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in section 9 of the Act. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of this species. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of these planning efforts calls for a 
different outcome.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and that 
may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic, or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of a species might 
include gravel of a particular size required for spawning, alkaline 
soil for seed germination, protective cover for migration, or 
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include 
prey species, forage grasses, specific kinds or ages of trees for 
roosting or nesting, symbiotic fungi, or a particular level of 
nonnative species consistent with conservation needs of the listed 
species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic essential 
to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.
    The specific physical or biological features required for marron 
bacora were derived from available observations and current information 
on the species' habitat, ecology, and life history as described below. 
To identify the physical and biological needs of the species, we have 
relied on current conditions at locations where marron bacora occurs. 
In addition, available literature on the species' genetics, 
reproductive biology, and habitat modeling were used (Stanford et al. 
2013; Anderson et al. 2015; Palumbo et al. 2016).

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of the marron bacora from studies of the species' 
habitat, ecology, and life history as described below. Additional 
information can be found in the SSA report (Service 2020, entire),

[[Page 36237]]

which is available on https://www.regulations.gov under Docket No. FWS-
R4-ES-2019-0050. We have determined that the following physical or 
biological features are essential to the conservation of marron bacora:
    (i) Native forest within the subtropical dry forest life zone in 
St. John.
    (ii) Dry scrubland, deciduous forest, and semi-deciduous forest 
vegetation at elevations lower than 150 m (492 ft).
    (iii) Continuous native forest cover with low abundance of exotic 
plant species (e.g., Leucaena leucocephala and Megathyrsus maximus) and 
that provides the availability of pollinators to secure cross-
pollination between populations.
    (iv) Habitat quality evidenced by the presence of regional endemic 
plant species, including Zanthoxylum thomasianum, Peperomia wheeleri, 
Eugenia earhartii, Eugenia sessiliflora, Cordia rickseckeri, Croton 
fishlockii, Malpighia woodburyana, Bastardiopsis eggersii, Machaonia 
woodburyana, and Agave missionum.
    (v) Open understory with appropriate microhabitat conditions, 
including shaded conditions and moisture availability, to support seed 
germination and seedling recruitment.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. All the designated units are occupied by the species at the 
time of listing (i.e., are currently occupied) and have mixed ownership 
of predominantly Federal lands (97 percent) and private lands (3 
percent) (see Table 4, below).
    The features essential to the conservation of marron bacora may 
require special management considerations or protection to ameliorate 
the following stressors: habitat modification and fragmentation 
(development); erosion (from storm water runoff); feral ungulates 
(predation); and invasive, exotic plants (habitat intrusion). Special 
management considerations or protection may be required within critical 
habitat areas to ameliorate these stressors, and include, but are not 
limited to: (1) Protect and restore native forests to provide 
connectivity between known populations and secure availability of 
pollinators and dispersers; (2) reduce density of feral ungulates; (3) 
remove and control invasive plants; and (4) avoid physical alterations 
of habitat to secure microhabitat conditions.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are not designating any areas 
outside the geographical area occupied by the species because we have 
not identified any unoccupied areas that meet the definition of 
critical habitat. The critical habitat designation includes all 
currently occupied areas within the historical range that have retained 
the necessary physical or biological features to allow for the 
maintenance and expansion of these existing populations. The occupied 
areas are sufficient for the conservation of the species.
    For areas within the geographic area occupied by the species at the 
time of listing (i.e., areas that are currently occupied), we 
delineated critical habitat unit boundaries as described below. The 
primary sources of data used to define marron bacora critical habitat 
include a habitat suitability model (by selecting areas identified as 
containing moderate- and high-quality habitat for the species) (Palumbo 
et al. 2016, entire), and validated by recent habitat assessments 
throughout the species' range. The habitat suitability model included 
elevation, slope, soil association, and vegetation types and identified 
approximately 1,717.23 ac (694.94 ha) of high-quality habitat, 3,150.45 
ac (1,274.94 ha) of moderate-quality habitat, 3,875.92 ac (1,568.53 ha) 
of low-quality habitat, 3,319.16 ac (1,343.16 ha) of poor-quality 
habitat, and 461.79 ac (186.88 ha) of unsuitable habitat (Palumbo et 
al. 2016, p. 5) on St. John. When adding all hectares of high- and 
moderate-quality habitat, approximately 32 percent of the land area of 
VINP may be suitable habitat for marron bacora (Palumbo et al. 2016, p. 
5). However, the latest discovered population of marron bacora on St. 
John at Reef Bay Trail (Service 2017a, p. 11) occurs at elevations 
higher than what was provided by the model results; thus, the amount of 
suitable habitat for marron bacora at St. John may include areas higher 
in elevation, indicating more suitable habitat than previously reported 
(Palumbo et el. 2016, p. 5). Therefore, the boundaries were slightly 
expanded to include habitat at higher elevations consistent with the 
recently discovered population (Reef Bay Trail).
    We analyzed recent satellite images to identify areas dominated by 
native forest vegetation associated with known localities for the 
species within St. John. Finally, we adjusted the elevation to 492 ft 
(150 m), as the latest discovered population of marron bacora was at an 
elevation higher than the records available to Palumbo et al. (2016). 
We further cropped the units using the contour of the coastline, 
excluding wetland areas (e.g., ponds) and developed areas. Critical 
habitat units were then mapped using ArcGIS Desktop version 10.6.1, a 
geographic information system (GIS) program. We identified two units, 
North and South, falling within these parameters.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as lands covered by buildings, 
pavement, and other structures because such lands lack physical or 
biological features necessary for marron bacora. The scale of the maps 
we prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the exclusion of such developed 
lands. Any such lands inadvertently left inside critical habitat 
boundaries shown on the maps of this rule have been excluded by text in 
the rule and are not designated as critical habitat. Therefore, a 
Federal action involving these lands will not trigger section 7 
consultation with respect to critical habitat and the requirement of no 
adverse modification unless the specific action will affect the 
physical or biological features in the adjacent critical habitat.
    We are designating as critical habitat areas that we have 
determined are occupied at the time of listing (i.e., are currently 
occupied), that contain one or more of the physical or biological 
features that are essential to support life-history processes of the 
species, and that may require special management considerations or 
protections. The two units, South and North, each contain the physical 
or biological features that support multiple life-history processes for 
marron bacora.
    Units are designated based on one or more of the physical or 
biological features being present to support marron bacora's life-
history processes. All units contain all of the identified physical or 
biological features and support multiple life-history processes.
    The critical habitat designation is defined by the map or maps, as

[[Page 36238]]

modified by any accompanying regulatory text, presented at the end of 
this document under Regulation Promulgation. We include more detailed 
information on the boundaries of the critical habitat designation in 
the preamble of this document. We will make the coordinates or plot 
points or both on which each map is based available to the public on 
https://www.regulations.gov at Docket No. FWS-R4-ES-2019-0050, or on 
our website, https://www.fws.gov/office/caribbean-ecological-services/library.

Final Critical Habitat Designation

    We are designating two units as critical habitat for marron bacora. 
The critical habitat areas we describe below constitute our current 
best assessment of areas that meet the definition of critical habitat 
for marron bacora. The two units we are designating as critical habitat 
are: (1) South and (2) North. Table 4 shows the critical habitat units, 
the land ownership, and the approximate area of each unit. Both units 
are occupied at the time of listing.

           Table 4--Critical Habitat Units for Marron Bacora With Ownership, Area, and Occupied Status
                   [Area estimates reflect all land within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
                                                                Size of unit in acres
        Critical habitat unit          Land ownership by type        (hectares) *               Occupied?
----------------------------------------------------------------------------------------------------------------
1. South............................  Federal (NPS) Private..  1,634 ac (661 ha), 70    Yes.
                                                                ac (28 ha), Unit
                                                                total: 1,704 ac (690
                                                                ha).
2. North............................  Federal (NPS)..........  844 ac (341 ha)........  Yes.
                                     ---------------------------------------------------------------------------
    Total...........................  .......................  2,548 ac (1,031 ha)....
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum exactly due to rounding.

    We present brief descriptions of both units, and reasons why they 
meet the definition of critical habitat for marron bacora, below.

Unit 1: South

    Unit 1 consists of 1,704 ac (690 ha). Approximately 1,634 ac (661 
ha) are managed by NPS within the VINP, and approximately 70 ac (28 ha) 
are in private ownership adjacent to the east corner of VINP. This unit 
is within the geographical area occupied by marron bacora at the time 
of the listing. This unit harbors the largest population and core of 
known individuals of marron bacora in St. John, USVI. It contains all 
of the identified physical or biological features essential to the 
conservation of marron bacora. We have excluded 1.33 ac (0.54 ha) acres 
from this unit (see Exclusions Based on Other Relevant Impacts, below).
    Ongoing and potential threats or activities that occur in this unit 
are urban development, trampling and predation by feral ungulates, and 
forest management actions (e.g., conservation/restoration, recreation, 
trail maintenance, roads, control of feral mammals, and fire management 
control). Special management considerations or protection measures to 
reduce or alleviate the threats may include minimizing or avoiding 
habitat modification or fragmentation from urban and recreational 
development, protecting and restoring native forests to provide 
connectivity between known populations and to secure availability of 
pollinators and dispersers, reducing the density of feral ungulates, 
and removing and controlling invasive plants.

Unit 2: North

    Unit 2 consists of 844 ac (341 ha) of federally owned land managed 
by NPS within the VINP. This unit is within the geographical area 
occupied by marron bacora at the time of listing and harbors the 
habitat structure that supports marron bacora's viability. This unit 
contains all of the identified physical or biological features 
essential to the conservation of marron bacora.
    Ongoing and potential threats or activities that occur in this unit 
are roaming feral mammals and forest management actions (e.g., 
conservation/restoration, recreation, trails, roads, control of feral 
mammals, and fire management control). Special management 
considerations or protection measures to reduce or alleviate the 
threats may include protecting and restoring native forests to provide 
connectivity between known populations and to secure availability of 
pollinators and dispersers, reducing density of feral ungulates, 
removing and controlling invasive plants, and avoiding physical 
modification of habitat to secure microhabitat conditions.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. 
Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat as 
a whole for the conservation of a listed species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must consult 
with us. Examples of actions that are subject to the section 7 
consultation process are actions on State, Tribal, local, or private 
lands that require a Federal permit (such as a permit from the U.S. 
Army Corps of Engineers under section 404 of the Clean Water Act (33 
U.S.C. 1251 et seq.) or a permit from the Service under section 10 of 
the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2), is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent

[[Page 36239]]

alternatives to the project, if any are identifiable, that would avoid 
the likelihood of jeopardy and/or destruction or adverse modification 
of critical habitat. We define ``reasonable and prudent alternatives'' 
(at 50 CFR 402.02) as alternative actions identified during 
consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate formal consultation on previously reviewed 
actions. These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation: (1) if the amount or extent of 
taking specified in the incidental take statement is exceeded; (2) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (3) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion; or (4) if a new 
species is listed or critical habitat designated that may be affected 
by the identified action.
    In such situations, Federal agencies may need to request 
reinitiation of consultation with us, but the regulations also specify 
some exceptions to the requirement to reinitiate consultation on 
specific land management plans after subsequently listing a new species 
or designating new critical habitat. See the regulations for a 
description of those exceptions.

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

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate 7(a)(2) 
of the Act by destroying or adversely modifying such habitat, or that 
may be affected by such designation.
    Activities that the Service may, during a consultation under 
section 7(a)(2) of the Act, consider likely to destroy or adversely 
modify critical habitat include, but are not limited to:
    (1) Actions that would significantly alter the structure of the 
native forest. Such activities could include, but are not limited to, 
habitat fragmentation and development (e.g., from recreational 
facilities and activities like trails, hiking, bicycling, using all-
terrain vehicles (ATVs); herbicide and pesticide use on private lands; 
and urban and tourist developments). In addition, habitat modification 
may promote habitat encroachment by invasive plant species, thus 
promoting favorable conditions for human-induced fires. These 
activities could degrade the habitat necessary for marron bacora 
populations to expand.
    (2) Actions that would increase habitat modification. Such 
activities could include, but are not limited to, predation and erosion 
caused by feral animals, and risk of human-induced fires. These 
activities could significantly reduce the species' recruitment and 
could exacerbate the vulnerability of the species to stochastic events 
(e.g., hurricanes).

Exemptions

Application of Section 4(a)(3) of the Act

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is proposed for designation. There are no 
DoD lands with a completed INRMP within the final critical habitat 
designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after 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 she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she 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 the determination to exclude a particular area, the 
statute on its face, as well as the legislative history, are clear that 
the Secretary has broad discretion regarding which factor(s) to use and 
how much weight to give to any factor.
    On December 18, 2020, we published a final rule in the Federal 
Register (85 FR 82376) revising portions of our regulations pertaining 
to exclusions of critical habitat. The final regulations became 
effective on January 19, 2021, and apply to critical habitat rules for 
which a proposed rule was published after January 19, 2021. 
Consequently, these new regulations do not apply to this final rule.
    We describe below the process that we undertook for taking into 
consideration each category of impacts and our analyses of the relevant 
impacts.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive due to the 
protection from destruction of adverse modification as a result of 
actions with a Federal nexus; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation or in the continuation, strengthening, or encouragement 
of partnerships. In the case of marron bacora, the benefits of critical 
habitat include public awareness

[[Page 36240]]

of the presence of the species and the importance of habitat 
protection, and, where a Federal nexus exists, increased habitat 
protection for marron bacora due to the protection from destruction or 
adverse modification of critical habitat. Additionally, continued 
implementation of an ongoing management plan that provides equal to or 
more conservation than a critical habitat designation would reduce the 
benefits of including that specific area in the critical habitat 
designation.
    We evaluate the existence of a conservation plan when considering 
the benefits of inclusion. We consider a variety of factors, including 
but not limited to, whether the plan is finalized; how it provides for 
the conservation of the essential physical or biological features; 
whether there is a reasonable expectation that the conservation 
management strategies and actions contained in a management plan will 
be implemented into the future; whether the conservation strategies in 
the plan are likely to be effective; and whether the plan contains a 
monitoring program or adaptive management to ensure that the 
conservation measures are effective and can be adapted in the future in 
response to new information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.

Exclusions Based on Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. In order to consider economic impacts, we prepared 
an incremental effects memorandum (IEM) and screening analysis which, 
together with our narrative and interpretation of effects, we consider 
our economic analysis of the critical habitat designation and related 
factors (IEc 2019, entire). The analysis, dated October 15, 2019 (IEc 
2019, entire), was made available for public review from August 26, 
2020, through October 26, 2020 (85 FR 52516; August 26, 2020). The 
economic analysis addressed probable economic impacts of critical 
habitat designation for marron bacora. We did not receive any 
additional information on economic impacts during the public comment 
period to inform whether any specific areas should be excluded from the 
final critical habitat designation under authority of section 4(b)(2) 
and our implementing regulations at 50 CFR 424.19. The IEM and economic 
screening analysis with supporting documents may be found on https://www.regulations.gov in Docket No. FWS-R4-ES-2019-0050.
    We considered the economic impacts of the critical habitat 
designation. The Secretary is not exercising her discretion to exclude 
any areas from this designation of critical habitat for the marron 
bacora based on economic impacts.

Exclusions Based on Impacts to National Security and Homeland Security

    In preparing this final rule, we have determined that there are no 
lands within the critical habitat designation for marron bacora that 
are owned or managed by the DoD or Department of Homeland Security; 
therefore, we anticipate no impact on national security. Additionally, 
we did not receive any information through the public comment period on 
the impacts of the proposed designation on national security or 
homeland security that would support excluding any specific areas from 
this final critical habitat designation under authority of section 
4(b)(2) and our implementing regulations at 50 CFR 424.19.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether there are 
permitted conservation plans covering the species in the area such as 
HCPs, safe harbor agreements, or candidate conservation agreements with 
assurances (CCAAs), or whether there are non-permitted conservation 
agreements and partnerships that would be encouraged by designation of, 
or exclusion from, critical habitat. In addition, we look at the 
existence of Tribal conservation plans and partnerships and consider 
the government-to-government relationship of the United States with 
Tribal entities. We also consider any social impacts that might occur 
because of the designation.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive due to the 
protection from destruction or adverse modification as a result of 
actions with a Federal nexus, the educational benefits of mapping 
essential habitat for recovery of the listed species, and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation, or in the continuation, strengthening, or 
encouragement of partnerships. In preparing this final rule, we 
determined that there are currently no HCPs or other management plans 
for the marron bacora and the final designation does not include any 
Tribal lands or trust resources. Therefore, we anticipate no impacts on 
Tribal lands, partnerships, or HCPs from this final critical habitat 
designation.
    In the paragraphs below, we provide a detailed balancing analysis 
of the areas we evaluated for exclusion from critical habitat under 
section 4(b)(2) of the Act.

Private or Other Non-Federal Conservation Plans or Agreements and 
Partnerships

    During the development of this final designation, we considered 
additional information we received through the public comment period 
regarding other relevant impacts to determine whether any specific 
areas should be excluded from this final critical habitat designation 
under authority of section 4(b)(2) and our implementing regulations at 
50 CFR 424.19. As described above in Summary of Comments and 
Recommendations, we received one request to exclude an area from the 
final critical habitat designation that provided sufficient information 
to conduct an exclusion analysis of the area.
    Based on the information provided by entities seeking exclusion, as 
well as additional public comments we received, and the best scientific 
data available, we evaluated whether certain lands in the proposed 
critical habitat (South Unit) are appropriate for exclusion from this 
final designation under section 4(b)(2) of the Act. If the analysis 
indicates that the benefits of excluding lands from the final 
designation outweigh the benefits of designating those lands as 
critical habitat, then the Secretary may exercise her discretion to 
exclude the lands from the final designation. In the paragraphs below, 
we provide a detailed analysis of whether the benefits of excluding 
this area outweigh the benefits of including it under section 4(b)(2) 
of the Act.

[[Page 36241]]

South Unit
    The subject area is a 1.33-ac (0.54-ha) private parcel and easement 
extending onto NPS lands at Nanny Point for access, parking, fencing, 
and utilities corridors. The parcel of land includes use restrictions, 
which ensure that 79 percent of the land will remain forested with 
native vegetation. The landowner has implemented conservation efforts, 
including captive propagation from seed and cutting, population 
enhancement, translocation of plants, and subsequent monitoring, and 
has demonstrably improved and enhanced the survival of the Nanny Point 
population. As part of the acquisition of this parcel, the landowner 
also negotiated a separate purchase and donation of an additional 
parcel to NPS of approximately 5.36 ac (2.17 ha) and the above 
referenced easements. Additionally, further land use covenants and 
restrictions were imposed on adjacent private parcels, covering 
approximately 15 ac (6.1 ha) of land surrounding the marron bacora 
population at Nanny Point. The restrictions limit the development of 
these parcels and ensure the habitat will remain at least 75 percent 
forested. Through the years, the private landowner has demonstrated 
commitment to the conservation of marron bacora through efforts such as 
propagating the species, providing us with information about the 
species, and ongoing conservation efforts such as fencing to exclude 
feral mammals from the Nanny Point population.
    Benefits of Inclusion--1.33-ac (0.54-ha) parcel: The principal 
benefit of including an area in critical habitat designation is the 
requirement of Federal agencies to ensure that actions that they fund, 
authorize, or carry out are not likely to result in the destruction or 
adverse modification of any designated critical habitat, which is the 
regulatory standard of section 7(a)(2) of the Act under which 
consultation is completed.Federal agencies must consult with the 
Service on actions that may affect a listed species and refrain from 
actions that are likely to jeopardize the continued existence of such 
species.The analysis of effects to critical habitat is a separate and 
different analysis from that of the effects to the species.Thus, 
critical habitat designation may provide greater benefits to the 
recovery of a species than listing would alone.
    Accordingly, a critical habitat designation may provide a 
regulatory benefit for marron bacoraon the 1.33-ac (0.54-ha) private 
parcel when there is a Federal nexus present for a project that might 
adversely modify critical habitat. However, as stated above, adverse 
modification considers whether implementation of a proposed Federal 
action directly or indirectly alters the designated critical habitat in 
a way that appreciably diminishes the value of the critical habitat as 
a whole. Given the small size of the area and existing land use 
restrictions, which ensure 79 percent of the area will remain suitable 
habitat for marron bacora, even if an action were proposed that had a 
Federal nexus, it is highly unlikely that such an action could affect 
the area in a way that would adversely modify it. Accordingly, the 
benefit of inclusion of this parcel is limited.
    As mentioned previously, the landowner has a proven track record of 
implementing conservation actions for marron bacora, which further 
reduces the benefits of inclusion of this parcel in critical habitat. 
These conservation actions provide a greater benefit to the species 
than a designation of critical habitat because the landowner's actions 
include implementing affirmative conservation actions, including 
propagation, planting, and monitoring activities, as well as exclusion 
of feral animals. Therefore, the existing conservation activities on 
this parcel will provide greater benefit than the regulatory 
designation of critical habitat, which requires only the avoidance of 
adverse modification and does not require implementation of the types 
of conservation activities that are currently being conducted at this 
site.
    Another potential benefit of including lands in a critical habitat 
designation is that doing so raises the awareness of landowners, State 
and local governments, and the public regarding the potential 
conservation value of an area. This increased public awareness of the 
importance of areas to marron bacora can help to focus attention of 
those areas that are of high conservation value. However, we find that 
the landowner's track record of implemented conservation actions for 
marron bacora demonstrate awareness of the conservation value of the 
area, and the benefits of inclusion of this parcel in critical habitat 
are significantly reduced. Additionally, the inclusion of the larger 
amount of adjacent NPS lands within critical habitat will provide 
sufficient opportunity for us to raise public awareness of the 
imperiled status of the marron bacora for this area generally.
    Benefits of Exclusion--1.33-ac (0.54-ha) parcel: The benefits of 
excluding the 1.33 ac (0.54 ha) of land from the designation of 
critical habitat are substantial. The parcel will continue to provide 
conservation to the species by contributing to educational benefits and 
public awareness through the following ways: (1) Continuing and 
strengthening of our effective working relationship with private 
landowners within the Nanny Point population to promote voluntary, 
proactive conservation and recovery of the marron bacora and its 
habitat; and (2) fostering future collaboration with private parties 
for other federally listed and sensitive species.
    In the case here, the substantial benefits of excluding the 1.33-ac 
(0.54-ha) private parcel include the recognition of the important role 
of voluntary conservation actions in the conservation of marron bacora, 
facilitating cooperation with neighboring landowners, and acknowledging 
the good faith efforts on their part to date in conserving marron 
bacora. The landowner of the 1.33-ac (0.54-ha) parcel has implemented 
and collaborated on conservation efforts, including captive propagation 
from seed and cutting, population enhancement, translocation of plants, 
and subsequent monitoring. These efforts have demonstrably improved and 
enhanced the survival of the Nanny Point population. Although the 
landowner is likely to continue to collaborate with us even if we do 
not exclude the private parcel and associated easements from 
designation, recognizing the collaborative relationship with the 
private landowner can create a substantial incentive for other 
landowners interested in voluntarily conserving marron bacora and other 
listed or unlisted species in need of conservation but might be 
concerned that their efforts might result in additional future 
regulation. Because we value the voluntary and collaborative 
conservation efforts that have occurred to date and that likely will 
continue, we place great weight on the maintenance of this conservation 
partnership. Thus, excluding this area from the critical habitat 
designation will maintain the valuable collaborative relationship with 
the landowner of the parcel and foster partnerships with other 
landowners within the range of marron bacora. Additionally, the 
exclusion of this parcel from critical habitat designation may also 
serve as a model for the advantages of voluntary and proactive 
conservation efforts, thereby fostering future cooperative 
relationships with non-Federal parties for the benefit of other 
endangered or threatened species. For these reasons, we consider the 
positive effect of excluding the 1.33-ac (0.54-ha) parcel from critical 
habitat to be a significant benefit.

[[Page 36242]]

    Benefits of Exclusion Outweigh the Benefits of Inclusion--1.33-ac 
(0.54-ha) parcel: The primary benefit of including this parcel as 
critical habitat for marron bacora is the regulatory requirement for 
Federal agencies to consult with us under section 7 of the Act to 
ensure actions they carry out, authorize, or fund do not adversely 
modify designated critical habitat. The additional regulatory benefits 
of including these lands as critical habitat are limited due to the 
small size of the parcel and long-term protection of the parcel 
conferred by existing land use restrictions and covenants. Furthermore, 
these lands are occupied by marron bacora, and we anticipate that if a 
Federal nexus exists and triggers the need for section 7 consultation, 
there will be no difference between conservation recommendations to 
avoid jeopardy and conservation recommendations to avoid adverse 
modification in occupied areas of critical habitat. The benefits of 
including this parcel in critical habitat are reduced due to the prior 
and ongoing conservation actions on this parcel, which provide a 
greater benefit than the regulatory designation of critical habitat.
    Another benefit of including this parcel in critical habitat is the 
opportunity to educate the landowner and the public regarding potential 
conservation value of the area. However, we have determined that the 
educational benefits of a designation of critical habitat are minimal 
due to the prior and ongoing conservation activities on this parcel and 
the greater relative contribution that adjacent NPS lands provide for 
educational opportunities.
    In contrast, the benefits of excluding this parcel are significant 
and greater than inclusion for the following reasons. Because voluntary 
conservation efforts for the benefit of listed species on non-Federal 
lands are so valuable, we consider the maintenance and encouragement of 
conservation partnerships to reduce or mitigate negative effects on the 
species caused by activities on or adjacent to the area covered by a 
plan. Including the parcel could undermine the collaborative and 
valuable partnership with the private landowner, as the landowner has 
worked with us in good faith to further the conservation of the 
species. Given concerns from the landowner about added regulation 
imposed by critical habitat designation, inclusion of the parcel may be 
perceived as lack of good faith on the part of the Service and a lack 
of appreciation for the landowner's efforts towards conservation. 
Excluding the area from critical habitat, on the other hand, recognizes 
and will strengthen the collaborative partnership and aid in fostering 
future cooperative relationships with other parties for the benefit of 
marron bacora. Furthermore, excluding the 1.33-ac (0.54-ha) parcel will 
demonstrate the significant advantages of proactive, voluntary efforts 
for other imperiled species by providing positive incentives and 
removing real or perceived disincentives for landowners who might be 
considering implementing conservation activities. Thus, we find the 
partnership benefits are significant and outweigh the small potential 
regulatory benefits of including the land in the final critical habitat 
designation.
    Therefore, for the reasons stated above, the Secretary has 
determined that the benefits of excluding the 1.33-ac (0.54-ha) parcel 
outweigh the benefits of including this area in a designation of 
critical habitat.
    Exclusion Will Not Result in Extinction of the Species--1.33-ac 
(0.54-ha) parcel: We determined that the exclusion of 1.33 ac (0.54 ha) 
of land within the boundaries of the South Unit will not result in 
extinction of the taxon. The small size of the parcel and the long-term 
protection conferred by the land use restrictions and covenants provide 
assurances that marron bacora will not go extinct as a result of 
excluding the area from the critical habitat designation. Furthermore, 
for any projects having a Federal nexus and potentially affecting the 
marron bacora, the jeopardy standard of the Act will provide a level of 
assurance that this species will not go extinct as a result of 
excluding this parcel from the critical habitat designation.
Summary of Exclusions
    As discussed above, based on the information provided by a 
landowner seeking exclusion, we evaluated whether certain lands in the 
proposed critical habitat were appropriate for exclusion from this 
final designation pursuant to section 4(b)(2) of the Act. As displayed 
below in Table 5, we are excluding the following area from the critical 
habitat designation for the marron bacora: 1.33 ac (0.54 ha) of land 
within the boundaries of Unit 1 (South Unit). The excluded area falls 
within State Concordia in southeastern St. John, in an area known as 
Nanny Point and located in the proximity of the biggest know population 
of marron bacora in lands recently donated to NPS.

               Table 5--Areas Excluded From Critical Habitat Designation by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                            Areas meeting the
                                                              definition of        Area excluded from critical
               Unit                     Specific area     critical habitat, in    habitat, in acres (hectares)
                                                            acres (hectares)
----------------------------------------------------------------------------------------------------------------
Unit 1............................  South Unit, St.       1,704 ac (690 ha)...  1.33 ac (0.54 ha).
                                     John, U.S. Virgin
                                     Islands.
----------------------------------------------------------------------------------------------------------------

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory

[[Page 36243]]

Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a certification statement of the 
factual basis for certifying that the rule will not have a significant 
economic impact on a substantial number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies to evaluate the potential impacts to indirectly 
regulated entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried out by the agency is not 
likely to destroy or adversely modify critical habitat. Therefore, 
under section 7, only Federal action agencies are directly subject to 
the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies will be directly 
regulated by this critical habitat designation. There is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated. Moreover, Federal agencies are not small entities. 
Therefore, because no small entities will be directly regulated by this 
rulemaking, we certify that this critical habitat designation will not 
have a significant economic impact on a substantial number of small 
entities.
    In summary, we have considered whether this designation will result 
in a significant economic impact on a substantial number of small 
entities. For the above reasons and based on currently available 
information, we certify that this critical habitat designation will not 
have a significant economic impact on a substantial number of small 
business entities. Therefore, a regulatory flexibility analysis is not 
required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. In our economic analysis, we did not find that this 
designation of critical habitat will significantly affect energy 
supplies, distribution, or use due to the absence of any energy supply 
or distribution lines in the critical habitat designation. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because the lands designated as critical 
habitat are primarily Federal lands (97 percent), with a small amount 
of private land (3 percent). Small governments will be affected only to 
the extent that any

[[Page 36244]]

programs involving Federal funds, permits, or other authorized 
activities must ensure that their actions would not adversely affect 
the designated critical habitat. Therefore, a Small Government Agency 
Plan is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for marron bacora in a takings implications assessment. The Act 
does not authorize the Service to regulate private actions on private 
lands or confiscate private property as a result of critical habitat 
designation. Designation of critical habitat does not affect land 
ownership, or establish any closures, or restrictions on use of or 
access to the designated areas. Furthermore, the designation of 
critical habitat does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed for the 
designation of critical habitat for marron bacora, and it concludes 
that this designation of critical habitat does not pose significant 
takings implications for lands within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this final rule does 
not have significant Federalism effects. A federalism summary impact 
statement is not required. In keeping with Department of the Interior 
and Department of Commerce policy, we requested information from, and 
coordinated development of this critical habitat designation with, 
appropriate Territorial resource agencies. From a federalism 
perspective, the designation of critical habitat directly affects only 
the responsibilities of Federal agencies. The Act imposes no other 
duties with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, this rule does not have 
substantial direct effects either on the States or Territory, or on the 
relationship between the Federal Government and the Territory, or on 
the distribution of powers and responsibilities among the various 
levels of government. The designation may have some benefit to these 
governments because the areas that contain the features essential to 
the conservation of the species are more clearly defined, and the 
physical or biological features of the habitat necessary for the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist Territory and local 
governments in long-range planning because they no longer have to wait 
for case-by-case section 7 consultations to occur.
    Where Territory and local governments require approval or 
authorization from a Federal agency for actions that may affect 
critical habitat, consultation under section 7(a)(2) of the Act will be 
required. While non-Federal entities that receive Federal funding, 
assistance, or permits, or that otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with the provisions of the Act. To assist the 
public in understanding the habitat needs of the species, this rule 
identifies the elements of physical or biological features essential to 
the conservation of the species. The areas of designated critical 
habitat are presented on maps, and the rule provides several options 
for the interested public to obtain more detailed location information, 
if desired.

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

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

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations 
adopted pursuant to section 4(a) of the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This position was upheld by the U.S. 
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

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

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov in Docket No. FWS-R4-ES-
2019-0050 and upon mailed request to the Caribbean Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this rule are the staff members of the Fish 
and Wildlife Service's Caribbean Ecological Services Field Office and 
Species Assessment Team.

[[Page 36245]]

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

    Authority:  16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 STAT. 3500; unless otherwise noted.


0
2. Amend Sec.  17.12, in paragraph (h), by adding an entry for 
``Solanum conocarpum'' to the List of Endangered and Threatened Plants 
in alphabetical order under FLOWERING PLANTS to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
         Scientific name                Common name          Where listed         Status        and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
 
                                                  * * * * * * *
Solanum conocarpum...............  Marron bacora.......  Wherever found......  E             87 FR [Insert
                                                                                              Federal Register
                                                                                              page where the
                                                                                              document begins],
                                                                                              6/16/2022; 50 CFR
                                                                                              17.96(a).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.96, in paragraph (a), by adding an entry for ``Family 
Solanaceae: Solanum conocarpum (marron bacora)'' in alphabetical order 
to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) * * *
Family Solanaceae: Solanum conocarpum (marron bacora)
    (1) Critical habitat units are depicted for St. John, U.S. Virgin 
Islands, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of marron bacora consist of the following 
components:
    (i) Native forest within the subtropical dry forest life zone in 
St. John.
    (ii) Dry scrubland, deciduous forest, and semi-deciduous forest 
vegetation at elevations lower than 150 meters (492 feet).
    (iii) Continuous native forest cover with low abundance of exotic 
plant species (e.g., Leucaena leucocephala and Megathyrsus maximus) and 
that provides the availability of pollinators to secure cross-
pollination between populations.
    (iv) Habitat quality evidenced by the presence of regional endemic 
plant species, including Zanthoxylum thomasianum, Peperomia wheeleri, 
Eugenia earhartii, Eugenia sessiliflora, Cordia rickseckeri, Croton 
fishlockii, Malpighia woodburyana, Bastardiopsis eggersii, Machaonia 
woodburyana, and Agave missionum.
    (v) Open understory with appropriate microhabitat conditions, 
including shaded conditions and moisture availability, to support seed 
germination and seedling recruitment.
    (3) Critical habitat does not include human-made structures (such 
as buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
July 18, 2022.
    (4) Data layers defining map units were created using ArcMap 
version 10.6.1 (Environmental Systems Research Institute, Inc.), a 
Geographic Information Systems program on a base of USA Topo Map and 
the program world imagery. Critical habitat units were then mapped 
using NAD 1983, State Plane Puerto Rico and Virgin Islands FIPS 5200 
coordinates. The maps in this entry, as modified by any accompanying 
regulatory text, establish the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which each map 
is based are available to the public at the Service's internet site at 
https://www.fws.gov/office/caribbean-ecological-services/library, at 
https://www.regulations.gov at Docket No. FWS-R4-ES-2019-0050, and at 
the field office responsible for this designation. You may obtain field 
office location information by contacting one of the Service regional 
offices, the addresses of which are listed at 50 CFR 2.2.
    (5) Note: Index map follows:

[[Page 36246]]

[GRAPHIC] [TIFF OMITTED] TR16JN22.000

    (6) Unit 1: South Unit, St. John, U.S. Virgin Islands.
    (i) Unit 1 consists of 1,704 acres (ac) (690 hectares (ha)) in 
estates Rustenberg & Adventure, Sieben, Mollendal & Little Reef Bay, 
Hope, Reef Bay, Lameshur Complex, Mandal, Concordia A, Concordia B, St. 
Quaco & Zimmerman, Hard Labor, Johns Folly and Friis. Lands are 
composed of 1,634 ac (661 ha) of Federal lands managed by the U.S. 
National Park Service and 70 ac (28 ha) of privately owned lands.
    (ii) Map of Unit 1 follows:

[[Page 36247]]

[GRAPHIC] [TIFF OMITTED] TR16JN22.001

    (7) Unit 2: North Unit, St. John, U.S. Virgin Islands.
    (i) Unit 2 consists of 844 ac (341 ha) in estates Leinster Bay, 
Browns Bay, Zootenvaal, Hermitage, Mt. Pleasant and Retreat, Haulover, 
and Turner Point. The unit is composed entirely of Federal lands 
managed by the U.S. National Park Service.
    (ii) Map of Unit 2 follows:
    [GRAPHIC] [TIFF OMITTED] TR16JN22.002
    

[[Page 36248]]


* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-12944 Filed 6-15-22; 8:45 am]
BILLING CODE 4333-15-P


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