[Federal Register Volume 85, Number 166 (Wednesday, August 26, 2020)]
[Proposed Rules]
[Pages 52516-52540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17091]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2019-0050; FF09E21000 FXES11110900000 201]
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: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
proposing to list the marron bacora (Solanum conocarpum), a plant 
species from the U.S. and British Virgin Islands, as an endangered 
species and designate critical habitat under the Endangered Species Act 
of 1973, as amended (Act). After a review of the best available 
scientific and commercial information, we find that listing the species 
is warranted. Accordingly, we propose to list the marron bacora as an 
endangered species under the Act. If we finalize this rule as proposed, 
it would add this species to the Federal List of Endangered and 
Threatened Plants and extend the Act's protections to the species. We 
also propose to designate critical habitat for the marron bacora under 
the Act. In total, approximately 2,549 acres (1,032 hectares) on St. 
John, U.S. Virgin Islands, fall within the boundaries of the proposed 
critical habitat designation. Finally, we announce the availability of 
a draft economic analysis (DEA) of the proposed designation of critical 
habitat for marron bacora.

DATES: We will accept comments received or postmarked on or before 
October 26, 2020. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for 
public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by October 13, 2020.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2019-0050, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, check the Proposed 
Rule box to locate this document. You may submit a comment by clicking 
on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R4-ES-2019-0050, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: For the critical habitat 
designation, the coordinates or plot points or both from which the maps 
are generated are included in the administrative record and are 
available at https://www.fws.gov/southeast/caribbean, at http://www.regulations.gov under Docket No. FWS-R4-ES-2019-0050, and can be 
requested from the Caribbean Ecological Services Field Office (see FOR 
FURTHER INFORMATION

[[Page 52517]]

CONTACT). Any additional tools or supporting information that we may 
develop for the critical habitat designation will also be available at 
the Service website and Field Office set out above, and may also be 
included in the preamble and/or at http://www.regulations.gov.

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 787-851-7297. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, if we determine that 
a species is warranted for listing as an endangered or threatened 
species throughout all or a significant portion of its range, we are 
required to promptly publish a proposal in the Federal Register and 
make a determination on our proposal within one year. 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 only be completed by issuing a 
rule.
    What this rule does. This rule proposes to list the marron bacora 
(Solanum conocarpum) as an endangered species under the Act, and 
proposes to designate critical habitat for the species. Marron bacora 
is a species for which we have on file sufficient information on 
biological vulnerability and threats to support preparation of a 
listing proposal, but for which development of a listing rule was 
previously precluded by other higher priority listing activities (also 
known as a candidate species). This proposed rule makes a new 12-month 
finding using the best available information regarding threats facing 
the marron bacora and its status.
    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) 
(Factor A), herbivory by nonnative, feral ungulates and insect pests 
(Factor C), the lack of natural recruitment (Factor E), absence of 
dispersers (Factor E), fragmented distribution and small population 
size (Factor E), lack of genetic diversity (Factor E), climate change 
(Factor E), and exotic, invasive plants (e.g., guinea grass) (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.
    Peer review. We prepared a species status assessment report (SSA 
report) for the marron bacora that represents a compilation and 
assessment of the best scientific and commercial information available 
concerning the status of the marron bacora, including past, present, 
and future factors influencing the species (Service 2019, 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, we sought the expert opinions of six 
appropriate specialists regarding the SSA report, which informed this 
proposed rule. The purpose of peer review is to ensure that our listing 
determinations, critical habitat designations, and 4(d) rules are based 
on scientifically sound data, assumptions, and analyses. The peer 
reviewers have expertise in the biology, habitat, and threats to the 
species.
    Because we will consider all comments and information we receive 
during the comment period, our final determinations may differ from 
this proposal. Based on the new information we receive (and any 
comments on that new information), we may conclude that the species is 
threatened instead of endangered, or we may conclude that the species 
does not warrant listing as either an endangered species or a 
threatened species and withdraw our proposal. Such final decisions 
would be a logical outgrowth of this proposal, as long as we: (a) Base 
the decisions on the best scientific and commercial data available 
after considering all of the relevant factors; (2) do not rely on 
factors Congress has not intended us to consider; and (3) articulate a 
rational connection between the facts found and the conclusions made, 
including why we changed our conclusion.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) The marron bacora's reproductive biology, range, and population 
trends, including:
    (a) Biological or ecological requirements of the species, including 
microhabitat requirements for establishment and availability of 
pollinators;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease (insect pest or pathogens), predation, the inadequacy of 
existing regulatory mechanisms, or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range,

[[Page 52518]]

distribution, and population size of this species, including the 
locations of any additional populations of this species.
    (5) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including information to inform the following factors that the 
regulations identify as reasons why designation of critical habitat may 
be not prudent:
    (a) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (b) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (c) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States; or
    (d) No areas meet the definition of critical habitat.
    (6) Specific information on:
    (a) The amount and distribution of marron bacora habitat;
    (b) What areas, that were occupied at the time of listing and that 
contain the physical or biological features essential to the 
conservation of the species, should be included in the designation and 
why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species. We particularly seek comments 
regarding:
    (i) Whether occupied areas are inadequate for the conservation of 
the species, and
    (ii) Specific information that supports the determination that 
unoccupied areas will, with reasonable certainty, contribute to the 
conservation of the species and contain at least one physical or 
biological feature essential to the conservation of the species.
    (7) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (8) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (9) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts.
    (10) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (11) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or a 
threatened species must be made ``solely on the basis of the best 
scientific and commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Caribbean Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. For the immediate future, we will provide public hearings 
using webinars that will be announced on the Service's website, in 
addition to the Federal Register and local newspapers. The use of these 
virtual public hearings is consistent with our regulation at 50 CFR 
424.16(c)(3).

Previous Federal Actions

    On November 21, 1996, we received a petition from the U.S. Virgin 
Islands (USVI) Department of Planning and Natural Resources requesting 
that we list Eggers' century plant and marron bacora as endangered. On 
November 16, 1998, we published in the Federal Register (63 FR 63659) 
our finding that the petition to list both species presented 
substantial information indicating that the requested action may be 
warranted; that document also initiated a status review of these two 
plants.
    On September 1, 2004, the Center for Biological Diversity (CBD) 
filed a lawsuit alleging that the Service failed to publish a 12-month 
finding for Eggers' century plant and marron bacora (CBD v. Norton, 
Civil Action No. 1:04-CV-2553 CAP). In a stipulated settlement 
agreement entered into on April 27, 2005, we agreed to submit a 12-
month finding for Eggers' century plant and marron bacora to the 
Federal Register by February 28, 2006. On March 7, 2006, we published a 
12-month finding (71 FR 11367) that listing of Eggers' century plant 
and marron bacora was not warranted, because we did not have sufficient 
information to determine the status of either species.
    On September 9, 2008, CBD filed a complaint challenging our 
determination that Eggers' century plant and marron bacora did not 
warrant listing (CBD v. Hamilton, Case No. 1:08-CV-02830-CAP). In a 
settlement agreement entered into on August 21, 2009, the Service 
agreed to submit to the Federal Register a new 12-month finding for 
marron bacora by February 15, 2011; as part of that settlement 
agreement, we also agreed to submit a

[[Page 52519]]

new 12-month finding for the Eggers' century plant, which we listed as 
an endangered species on September 9, 2014 (79 FR 53303).
    We published a request for additional information to inform the 
status review of marron bacora on January 20, 2010 (75 FR 3190). The 
subsequent 12-month finding for marron bacora, published on February 
22, 2011 (76 FR 9722), determined the species was warranted for 
listing, but precluded by higher priority listing actions. The threats 
to the species included the lack of natural recruitment, absence of 
dispersers, fragmented distribution, lack of genetic variation, climate 
change, and habitat destruction or modification by exotic mammal 
species. The species received a listing priority number (LPN) of 2 
based on the high magnitude and immanency of the threats. The listing 
of this species was determined to be warranted but precluded in 
subsequent annual candidate notices of review (CNORs) (76 FR 66370, 
October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 
22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 
2015; 81 FR 87246, December 2, 2016; 84 FR 54732, October 10, 2019). 
This document constitutes a new 12-month finding for the marron bacora.

Supporting Documents

    A species status assessment (SSA) team, composed of Service 
biologists in consultation with other species experts, prepared an SSA 
report for marron bacora. The SSA report provides 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 to determine the 
viability of the species. The Service sent the SSA report to six 
independent peer reviewers and received one response from colleagues at 
the Fairchild Tropical Botanic Gardens. The Service also sent the SSA 
report to two partners for review--the National Park Service (NPS) and 
Virgin Islands Department of Planning and Natural Resources (DPNR)--and 
received a response from DPNR. The comments we received provided 
support for the conclusions in the SSA report and provided additional 
information to improve that document.

I. Proposed Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of 
marron bacora is presented in the SSA report version 1.0 and evaluates 
the species' overall viability (Service 2019, entire). Below, we 
summarize the key results and conclusions of the SSA report, which can 
be viewed under Docket No. FWS-R4-ES-2019-0050 at http://www.regulations.gov.
    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 the 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). There is an 
additional, unconfirmed record from plant material collected in 1969 at 
Gordon Peak on Virgin Gorda, BVI (Acevedo-Rodr[iacute]guez 1996, p. 
415). There is suitable habitat for the species on Virgin Gorda; 
however, that is the only record of the species on another 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 and a 
single population on Tortola. 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 
species is a dioecious (separate male and female plants) obligate out-
crosser and typically self-incompatible, so the larger the population, 
the better for ensuring successful reproduction and maintaining genetic 
diversity within populations.
    The sex ratio of marron bacora is 1:1, and a much longer time is 
needed for female plants to flower for the first time (from the 
seedling stage) compared with the males (Anderson et al. 2015, p. 475). 
This may explain the rarity of the species in the landscape as only 
half of the wild individuals (based on the 1:1 ratio) have the 
potential to produce fruits and viable seeds, and thus highlights the 
importance of introducing an adequate number of plants into the wild 
(Anderson et al. 2015, p. 482). Nonetheless, there is no available 
information regarding the seed dormancy or long-term storage potential 
for marron bacora.
    As plant populations become reduced and spatially segregated, 
important life-history needs provided by pollinators and seed 
dispersers may be compromised (Kearns and Inouye 1997, p. 305). The 
fragmented distribution of marron bacora on St. John can be attributed 
to historical habitat degradation. Based on the hermaphroditic and 
dioecious biology of marron bacora, the species requires cross-
pollination. Pollinators including carpenter bees (Xylocopa mordax), 
honey bees (Apis mellifera), and bananaquits (Coereba flaveola) have 
been documented at the Nanny Point population. (USFWS 2017aa, p. 7). In 
fact, about 92 percent of the 75 marron bacora natural individuals in 
this area were observed in flower (USFWS 2017aa, p. 7).
    The natural dispersal mechanism of marron bacora remains unknown, 
but fruit predation is suspected as the explanation of lack of natural 
recruitment in the wild (USFWS 2011, p. 9726). Although predators may 
also disperse the species, it is likely that the seeds have not adapted 
to passing through the gastrointestinal tracts of the exotic mammals 
currently occurring in the island of St. John (e.g., white-tailed deer, 
feral hogs, donkeys). The native hermit crab (Coenobita clypeatus) has 
also been documented depredating marron bacora fruit (Ray and Stanford 
2005, p. 18; Vilella and Polumbo 2010, p. 1), and, although there are 
several species of fruit-eating bats on St. John (Artibeus jamaicensis, 
Brachyphylla cavernarum, and Stenoderma rufum), there have been no 
studies to document their possible role in the life history of marron 
bacora, if any. Also, it is possible that natural fruit dispersers of 
marron bacora had targeted other food sources as the populations of 
this shrub became increasingly patchy, as a result of deforestation and 
introduction of exotic plant species. The patchy distribution of this 
species may suggest that its natural disperser is extinct or that the 
populations of the plant are too small to attract the disperser (Roman 
2006, p. 82).
    Little is known of the life history of this plant. Marron bacora is 
a perennial shrub that may live more than two decades. For example, the 
Nanny Point population was discovered in 2002 (Carper 2005, pers. 
comm.), and at that time, the population was already composed mainly of 
adult individuals and little natural recruitment was recorded. Thus, 
the current known natural individuals at Nanny Point should be 
approximately 20 years old. Marron bacora material was under 
cultivation from an individual

[[Page 52520]]

rediscovered in early 1990s (USFWS 2017aa, p. 4). Therefore, these 
plants would also be more than 20 years old. Nonetheless, the species 
may reach reproductive maturity 16 months from germination under 
greenhouse conditions (Anderson et al. 2015, p. 475). However, this 
period is expected to be greater in the wild, as seedlings may require 
longer periods to grow and individuals may remain suppressed under 
closed canopy and possible drought conditions.

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

Analytical Framework

    The 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 proposed for listing 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; the full SSA 
report can be found under Docket No. FWS-R4-ES-2019-0050 on http://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

[[Page 52521]]

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 needs, 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. Requirements for individuals 
to survive include having appropriate habitat, with both male and 
female plants present in a balanced sex ratio, and seasonal rainy 
periods. The habitat is described as dry deciduous and coastal scrub 
forests with dry soils at lower elevations (less than 85 m (278.9 ft)) 
restricted to the U.S. and British Virgin Islands; however, marron 
bacora shows little fidelity to any particular suite of community 
associations. Plants may reach a reproductive size in less than 2 years 
under greenhouse conditions; however, it may take decades for wild 
plants to effectively reproduce.
    Due to the nature of marron bacora's narrow endemic distribution, 
the species is confined to the available habitat on St. John, USVI, and 
Tortola, BVI. Most of the species' habitat and the largest population 
on St. John occur within the Virgin Islands National Park (VINP), an 
area managed by NPS. Across St. John, NPS manages about 60 percent of 
the island's area, with VINP consisting of about 14,737 acres (ac) 
(5,963.9 hectares (ha)).

Species Needs

    Resilient populations require a population size and density that 
provides a balanced sex ratio (proportion of male and female plants). 
The demographics and population structure should reflect evidence of 
successful recruitment within each population. In order to maintain 
resilient populations, marron bacora needs continuous suitable habitat 
that allows for room for growth and dispersal, as well as connectivity 
between populations and availability of pollinators.
    The species is typically found in dry deciduous forests at lower 
elevations (less than 85 m (278.9 ft)) with low annual rainfall with 
seasonal runoff conditions. Many plants have been found in open, eroded 
areas. The plant's growth and reproductive phenology are synchronized 
with the rainy seasons associated with the Virgin Islands. Maintaining 
conditions that facilitate the reproductive biology of marron bacora, 
along with maintaining forest connectivity and habitat corridors among 
known populations, is critical for the long-term conservation of the 
species and will contribute to the ecological interactions with native 
pollinators and dispersers to ensure these systems remain functional.

Factors Affecting the Viability of the Species

    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, habitat loss/degradation, insect pests and pathogens, 
changes in phenology and breeding systems, recreation, and climate 
change and hurricanes. The primary stressors acting on the species are 
impacts from nonnative, invasive species that preclude natural 
recruitment.
Nonnative/Invasive Species
    Marron bacora is directly affected by nonnative, invasive plants 
and animals. White-tailed deer (Odocoileus virginianus) are naturalized 
and very abundant on the islands. They directly affect the species by 
browsing on the plants (seedlings and saplings) and fruits. Other 
nonnative species used as livestock, including hogs (Sus scrofa), goats 
(Capra aegagrus hircus), and donkeys (Equus africanus asinus), have 
also naturalized and have been recorded within the VINP. These species 
also forage freely on the island both on native vegetation and on 
invasive guinea grasses such as Megathyrsus maximus (USVI Dept. of 
Planning and Natural Resources, p. 8). Cattle also range freely on St. 
John and Tortola. In addition, the habitat of marron bacora at Nanny 
Point is affected by encroachment of exotic grasses and vines following 
Hurricanes Irma and Maria in 2017 (Island Conservation 2018, pp. 3, 
12).
Herbivory by Feral Ungulates
    Another major threat acting on marron bacora is the lack of natural 
recruitment most likely due to depredation of its fruits and seedlings 
by feral ungulates. There is ongoing research studying the impact by 
feral browsers on the viability of marron bacora. The effects of 
foraging on marron bacora plants during a post-hurricane study on St. 
John in 2018 showed 35.5 percent of the known population at Nanny Point 
exhibited signs of herbivory from mammals, such as white-tailed deer. 
During the same study, 61 percent (11 plants) of the John's Folly 
population exhibited a combination of impacts by herbivorous insects 
and browsing by invasive mammals (IC Report 2018, p. 5). White-tailed 
deer were introduced to St. John in the 1920s in order 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 (Gibney 2017, 
pers comm.). There are currently no estimates on the deer abundance on 
St. John, and there are no native predators to control the deer 
population.
Small Population Size and Density
    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 with low resiliency, redundancy, 
and representation. There is a lack of knowledge regarding the 
abundance and roles of dispersers and pollinators at the population and 
species levels. Current knowledge of the ecology and genetic diversity 
of Virgin Islands rare flora is sparse (Stanford et al. 2013, p. 173). 
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.
Human-Induced Fires
    In the Caribbean, native plant species, particularly endemics with 
limited distribution, may be vulnerable to manmade events such as 
human-induced fires. Fire is not a natural component of subtropical dry 
forests in the Virgin Islands; thus, most species found in this type of 
forest are not fire-adapted and are not likely to withstand frequent 
fire events (Monsegur, cited in USFWS 2011, p. 9726). Marron bacora is 
associated with lower elevation dry forests. This habitat may be 
susceptible to forest fires, particularly on private lands, where fire 
could be accidentally ignited. Furthermore, regenerating forests, such 
as the ones prevalent on St. John, are prone to wildfires that 
perpetuate the succession of persistent shrub land dominated by 
introduced tree species and grasses; this inhibits native species' 
growth and subsequently contributes to more intense and more severe 
fires (Wiley and Vilella 1998, p. 340). Given the growth pattern of 
marron bacora, it is unlikely that individuals would survive a fire 
even of moderate intensity (Vilella and Palumbo 2010, p. 15). Intrusion 
by exotic plants

[[Page 52522]]

may also occur in areas where fire changes the structure of the native 
vegetation. A site visit to St. John to evaluate the threats to the 
species' known natural populations found no substantial evidence 
indicating fires posed an imminent threat to the species (Monsegur, 
pers. obs.). The site on St. John that is most vulnerable to fires is 
Johns Folly, due to its proximity to a road and the accumulation of 
debris associated with a former house (Monsegur, pers. obs.). In 
addition, following Hurricanes Irma and Maria, the habitat at the Nanny 
Point population has been encroached by exotic grasses, making this 
population vulnerable to a fire event (Monsegur, pers. obs.).
Insect Pests and Pathogens
    Although known marron bacora populations are relatively protected, 
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. 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, 63.2 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 to edge vegetation (vines and 
shrub land vegetation exposed to salt spray).
    In addition, the assessment by Service staff in 2017 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 
NPS facilities (USFWS 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 conclusions on the effects of these insects and 
pathogens on marron bacora are based on the available information about 
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.
Phenology and Breeding System
    The hermaphroditic and dioecious biology of marron bacora was 
confirmed by lack of pollination in crossings of pollen to the stigma 
of other male flowers or transferred to the stigma of the same flower 
(Anderson et al. 2015, p. 479). A 1:1 sex ratio and a much longer time 
for marron bacora female plants to flower for the first time (from the 
seedling stage) compared with the males has been documented (Anderson 
et al. 2015, p. 475). At this point, the natural disperser of marron 
bacora remains unknown, and fruit predation is suspected as the 
explanation of lack of natural recruitment in the wild (76 FR 9722, 
February 22, 2011, p. 76 FR 9725). It is possible that natural fruit 
dispersers of marron bacora have targeted other food sources as the 
populations of this shrub became increasingly patchy, as a result of 
historical land-use changes and introduction of exotic plant species. 
The absence of a fruit disperser may also indicate that the disperser 
of the species is extinct or that the populations are too small to 
attract the disperser (Roman 2006, p. 82). The above information 
highlights the vulnerability of extirpation of relatively small 
populations of marron bacora as they may become functionally extinct 
and cannot support recovery or rescue of neighboring populations, 
limiting their value for redundancy and species resiliency.
Recreation
    Some evidence of damage consistent with trail maintenance was 
recorded along Brown Bay trail, and additional habitat disturbance was 
observed at the John Folly site (park boundary) (USFWS 2011, p. 9724). 
Also, site disturbance (vegetation clearing) was recorded in 2017 at 
the John Folly population, where, for example, one seedling in the 
middle of the trail was susceptible to being trampled by hikers (USFWS 
2017a, p. 9). However, considering the remoteness of the marron bacora 
habitat and given that the majority of the populations are within NPS 
land, recreational uses have a low likelihood of affecting the survival 
of the species.
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, but 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 (USFWS 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, recent works on 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 increase annual drought intensity (Khalyani et al. 
2016). 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 breath to adapt to these predicted conditions. In 
addition, there is little knowledge of marron bacora's

[[Page 52523]]

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.
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 subsequent development that has occurred 
since the 1700s. Even though these land-use changes occurred centuries 
ago, there are long-lasting effects that continue to affect 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 
located on VINP, the adjacent private land could be at risk of 
development which may directly affect the species' most resilient 
population.
    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. Our assessment of the 
current and future conditions encompasses and incorporates the threats 
individually and cumulatively. Our current and future condition 
assessment is iterative because it 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.
Conservation Measures
    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 (Kojis and Boulon 1996, pers comm.). 
Marron bacora specimens were then distributed to various places with 
suitable habitat in the Virgin Islands (Ray and Stanford 2005, p. 3). 
An 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 propagation program of 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). While the species has been 
successfully propagated, the reintroductions have yielded unsuccessful 
results with a very low survival rate for propagated and reintroduced 
plants, and even lower for relocated adult plants.
    The NPS has its own regulatory mechanisms to protect the species 
within VINP on St. John. The NPS is responsible under the Organic Act 
(54 U.S.C. 100101(a) et seq.; NPS 2006) for managing the national parks 
to conserve the scenery, natural and historic objects, and wildlife. 
The National Park Omnibus Management Act of 1998 (Pub. L. 105-391; NPS 
2006), 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 in 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.
    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 
outplanting.

[[Page 52524]]

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 species status assessment (SSA) report 
(Service 2019, pp. 22-30).
Resiliency
    In order to determine population resiliency, we generated 
resiliency scores for marron bacora by combining scores using habitat 
and population metrics. The best available information for each 
population was gathered from the literature and species experts. Each 
of the four metrics were weighted equally, with the overall effect that 
habitat (i.e., protected vs. unprotected lands [development risk], 
feral ungulates, and pest depredation) was weighted three times higher 
than population size/trend (Service 2018, pp. 58-59) (see Table 1, 
below). 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 pests  Relatively low
                            protected, at risk    exotic mammals.       present.              population size
                            of being developed.                                               and/or declining
                                                                                              trend.
0........................  Some habitat          Unknown or moderate   Moderate number of    Relatively moderate
                            protected, and some   number of exotic      pests present.        population size
                            at risk of being      mammals.                                    and stable trend,
                            developed.                                                        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 Scores 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 found on two islands with 11 known populations, of 
which 3 have become extirpated. The resiliency of the extant 
populations vary 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. The most recent 
abundance estimates of each population is described in the current 
condition and provided in Table 3, below.

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 (USFWS 2017b, pers. obs.). During the 2017 survey, 
most plants were observed in flower, with some already producing fruit; 
however, despite this evidence of reproduction, only three seedlings 
were observed. The low number of seedlings, despite the relatively high 
fruit production, is consistent with the information already available 
to the Service indicating that this population continues to show low 
recruitment (Ray and Stanford 2005, p. 18; USFWS 2011, p. 9726; USFWS 
2017a, p. 7). Hurricane Maria resulted in flash floods that caused a 
loss of canopy (USFWS 2017b, p.3). Following Hurricane Maria, 
individual plants were covered with tree branches or sediment and 
several individuals were uprooted or lying on the ground (USFWS 2017b, 
p. 6-8). A 2018 assessment found 201 individual plants with an increase 
in natural seedlings and juveniles, suggesting the hurricane created 
favorable conditions for seedling establishment. A follow-up survey in 
2019 found invasive grasses and vines were covering much of the area 
that was exposed from the canopy loss from the hurricanes.
    This population is also affected by herbivory from invasive mammals 
and the Jacaranda beetle. The Nanny Point population has low resilience 
because the site is partially within VINP but also overlaps with 
unprotected, private lands; the population has a high presence of feral 
ungulates, high insect predation, and has a declining population size.

Friis Bay (St. John, USVI)

    With the discovery of a new population in the British Virgin 
Islands, this is now the third largest natural population of marron 
bacora, with an estimated 33 individuals (Ray and Stanford 2005, p. 
16). The site has not been visited since 2005; thus, no current 
information is available on the status of this population. Based on our 
data and knowledge, it is our assumption that this population is also 
impacted by ungulates as they are free-roaming throughout the entire 
island of St. John. In addition, by being located on private land, the 
population is vulnerable to impacts from habitat modification as 
residents may not have knowledge of the species.

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 (USFWS 2017a, 
p. 7). Despite the evidence of flowering events, natural recruitment 
appears to be minimal, as only one natural seedling was observed. The 
distribution of the natural individuals is similar to Nanny Point with 
the majority of the plants at the bottom of the drainage. This site is 
located along the Park boundaries and the populations appear to be 
affected by human disturbance such as vegetation clearing for a hiking 
trail that begins nearby and former evidence of dumping (USFWS 2017a, 
p. 9).
    In 2018, a post hurricane assessment of the population found 18 
adult

[[Page 52525]]

individuals with no seedlings or juveniles reported. All individuals 
documented in this population were mature plants; none of the plants 
presented flowers or fruit. All individuals in this population were 
described as standing (none lying) with three of the individuals (16.7 
percent) exhibiting some form of dieback and 11 plants (61.1 percent) 
exhibiting a combination of impacts by herbivorous insects and browsing 
by potential invasive mammals (IC Report 2018, 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 populations is 
composed of a remnant natural individual and planted individuals that 
were part of a 2009 population enhancement using material propagated 
from the Nanny Point population. The wild individual occurs on the edge 
of an NPS-maintained hiking trail and showed signs of direct impacts 
from trail maintenance activity (i.e., clearing of vegetation) (Palumbo 
et al. 2016, pp. 6-7).
    In 2018, a post-hurricane assessment reported that the population 
was composed of 18 individuals--17 adults and 1 juvenile. The 
population here was described as an aged structure, with 94.4 percent 
of the individuals being classified as adults with no signs of flowers 
or fruit on any plants in this population. This population showed 
evidence of dieback on their leaves, impacts by herbivorous insects, 
and browsing by potential invasive mammals, and all of the plants at 
this location were described as suffering from severe dry conditions 
(IC Report 2018, p. 8). 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 new population located during a 
2017 population assessment (USFWS 2017a, p. 11). The site lies within 
VINP along the NPS hiking trail from Europa Bay to Reef Bay. A 
population assessment in 2017 discovered 7 wild individuals, 85 percent 
in flower and some individuals producing fruits. Additional habitat 
surveys may be required for a more thorough assessment of this area. No 
post hurricane assessments were carried out for this population. 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 1 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 from the Brown Bay Trail population (Cecilia 
Rogers 2017, pers. comm.). Additional habitat surveys may be required 
for a more thorough assessment of this area, and no post hurricane 
assessments were carried out in this area. 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 in addition, the single documented wild individual was a 
juvenile plant suggesting possible evidence of recruitment.

Sabbat Point (St. John, USVI)

    This population was reported as a single natural individual in 2005 
(Ray and Stanford 2005, p. 16; 76 FR 9722, February 22, 2011, p. 76 FR 
9724). The individual was never relocated in a subsequent site visit, 
and the site showed evidence of disturbance based on the abundance of 
Leucaena leucocephala, Opuntia repens, and Bromelia pinguin (USFWS 
2017a, p. 4). This population is considered extirpated.

Reef Bay Valley (St. John, USVI)

    This locality 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 (USFWS 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). In 2005, the 
site was composed of 1 natural individual and 60 planted individuals 
(population enhancement) (Ray and Stanford 2005, p. 16). However, based 
on the latest habitat assessments by the Service, this population is 
likely extirpated (USFWS 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. Three of the large plants were described as 
fertile, with one having flowers with no fruit, another having flowers 
and immature fruit, and the last having fruit but no flowers. The 
habitat was described as having open vegetation compared with the 
surrounding forest and containing a lot of nonnative annuals and Acacia 
riparia encroaching. Feral animal droppings and grazing of marron 
bacora were noted in the area (Heller et al. 2018, entire). 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. The population was only recently found; therefore, 
the population trends are unknown. However, due to the threats acting 
on this population, without management of free-ranging ungulates, the 
habitat will likely decline.

         Table 3--Marron Bacora Most Recent Population Estimates
------------------------------------------------------------------------
          Population location                  Population estimate
------------------------------------------------------------------------
                             St. John, USVI
------------------------------------------------------------------------
Nanny Point............................  201 (2018).
Friis Bay..............................  33 (2005).
Johns Folly............................  18 (2018).
Brown Bay Trail........................  18 (2018).
Reef Bay Trail.........................  7 (2017).
Base Hill..............................  1 (2005).
Brown Bay Ridge........................  1 (2017).
Sabbat Point...........................  Extirpated.
Reef Bay Valley........................  Extirpated.
Europa Ridge...........................  Extirpated.
------------------------------------------------------------------------
                              Tortola, BVI
------------------------------------------------------------------------
Sabbath Hill...........................  46 (2018).
------------------------------------------------------------------------

    There is little evidence of natural recruitment in any of the known

[[Page 52526]]

populations of marron bacora. The population structure at Nanny Point 
and Johns Folly is characterized by the absence of individuals smaller 
than 1 meter high, with little evidence of seedlings or juveniles 
(three for Nanny Point and one for Johns Folly) (USFWS 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 (USFWS 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) (USFWS 2017a, p. 9). The lack of natural recruitment 
does not seem to be attributed to low seed viability as germination 
under greenhouse conditions is high, with almost 100 percent 
germination (Ray and Stanford 2005, p. 6).
    Efforts have been conducted to enhance existing natural populations 
by planting seedlings, including planting of 128 seedlings (different 
seed sources) at two localities in the south coast of St. John (Europa 
Ridge and Reef Bay Valley) (Stanford et al. 2013, p. 178). Overall 
survival of these seedlings over a 32-month period was approximately 
81.3 percent in Europa Ridge, and 78.1 percent in Reef Bay Valley, and 
irrespective of seed source, survival rate was not significantly 
different between the two sites (Stanford et al. 2013, p. 177). 
However, growth rates for these sites were recorded as highly erratic, 
and plant material was affected by drought stress and insect herbivory 
(Stanford et al. 2013, p. 178). Further monitoring of these sites by 
NPS staff has not located living material of marron bacora, either 
natural or planted, and these populations are presumed extirpated 
(McKinley 2017, pers. comm.). In fact, the species was not detected in 
these areas in 2017 (USFWS 2017a, p. 11). Additional population 
enhancements from seedling and cuttings have been conducted at Nanny 
Point (50), Johns Folly (37), and Brown Bay (36) (76 FR 9722, February 
22, 2011, p. 76 FR 9724). The current number of surviving individuals 
for these sites is 44 (88 percent), 13 (35 percent), and 10 (27 
percent), respectively (USFWS 2017a, p. 13).
    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 fewer than 7 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 also 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 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. We determined that the current condition of marron bacora 
and the projections for all scenarios are consistent with an endangered 
species (see Determination of Species Status, below); we are not 
presenting the results of the future scenarios in this proposed rule. 
Please refer to the SSA report (Service 2019) for the full analysis of 
future conditions and descriptions of the associated scenarios.

Determination of Status for Marron Bacora

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

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
found that the lack of recruitment will cause a continued decline in 
the species' viability through loss of representation, redundancy, and 
resiliency.
    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 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

[[Page 52527]]

hurricanes, but those seedlings were being affected by ungulate 
herbivory that was reducing survival. Despite having the greatest 
number of individuals, Nanny Point, alone, 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 is 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 becoming 
functionally extinct.
    The threats acting on the species are likely to continue at the 
existing rate or increase without management of the marron bacora and 
the 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 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 of any significant portion of its range. Because 
we have determined that marron bacora warrants listing as endangered 
throughout all of its range, our determination is consistent with the 
decision in Center for Biological Diversity v. Everson, 2020 WL 437289 
(D.D.C. Jan. 28, 2020), in which the court vacated the aspect of the 
2014 Significant Portion of its Range Policy that provided the Services 
do not undertake an analysis of significant portions of a species' 
range if the species warrants listing as threatened throughout all of 
its range.

Determination of Status

    Our review of the best scientific and commercial data information 
indicates that marron bacora meets the definition of an endangered 
species because the species is currently in danger of extinction 
throughout all of its range due to the low resiliency, redundancy, and 
representation of the species; threats acting on the species across its 
range; and the lack of recruitment to support resilient populations. 
Therefore, we propose to list the 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 within 30 days of a final listing 
determination. 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 
downlisting or delisting, and methods for monitoring recovery progress. 
Recovery plans 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 (http://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.
    If this species is listed, 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 would be eligible for Federal funds to implement management 
actions that promote the protection or recovery of the marron bacora. 
Information on our grant programs that are available to aid species 
recovery can be found at: http://www.fws.gov/grants.

[[Page 52528]]

    Although marron bacora is only proposed for listing under the Act 
at this time, 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 proposed or 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)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or 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 or 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).
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered plants. 
The prohibitions 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 sections 6(g)(2) and 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 would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing.
    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 law (this list is not 
comprehensive):
     Modifying the habitat of the species on Federal lands 
without authorization (e.g., unauthorized opening of trails within NPS 
lands);
     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).
    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. Designation also does not allow the government 
or public to access private lands, nor does designation 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

[[Page 52529]]

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). In identifying those 
physical or biological features that occur in specific occupied areas, 
we focus on the specific features that are essential to support the 
life-history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, 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.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in 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. When designating critical habitat, the Secretary will first 
evaluate areas occupied by the species. 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. In addition, 
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 and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    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 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.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the Secretary may, but is not required to, determine that a designation 
would not be prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    There is currently no imminent threat of collection or vandalism 
identified under Factor B for this species, and identification and 
mapping of critical habitat is not expected to initiate any such 
threat. In our SSA report for the marron bacora and this document, we 
determined that the present or threatened destruction, modification, or 
curtailment of habitat or range is a threat to marron bacora and that 
threat in some ways can be addressed by section 7(a)(2) consultation 
measures. The species occurs under the jurisdiction of the United 
States and the United Kingdom. We are able to identify areas under U.S. 
jurisdiction that meet the definition of critical habitat.

[[Page 52530]]

Therefore, because none of the circumstances enumerated in our 
regulations at 50 CFR 424.12(a)(1) has been met and because there are 
no other circumstances we are aware of for which this designation of 
critical habitat would be not prudent, we have determined that the 
designation of critical habitat is prudent for marron bacora.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act, we must find whether critical habitat for marron 
bacora is determinable. Our regulations at 50 CFR 424.12(a)(2) state 
that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.'' When critical habitat is not determinable, the Act allows 
the Service an additional year to publish a critical habitat 
designation (16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where these species is 
located. This and other information represent the best scientific data 
available and led us to conclude that the designation of critical 
habitat is determinable for marron bacora.

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, alkali 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, the Service 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).
    Marron bacora is a shrub endemic to the islands of St. John (USVI) 
and Tortola (BVI), and its distribution is restricted to the 
subtropical dry forest life zone (Ewel and Whitmore 1973, p. 72). The 
vegetation in this life zone usually consists of a nearly continuous, 
single-layered canopy, with little groundcover. Tree heights usually do 
not exceed 49 ft (15 m) and crowns are typically broad, spreading, and 
flattened (Ewel and Whitmore 1973, p. 72). It is estimated that more 
than 80 percent of the overall land surface of St. John is covered by 
subtropical dry forest (Stanford et al. 2013, p. 173).
    The climate within the subtropical dry forest life zone (sensu 
Holdridge 1967) where marron bacora occurs is seasonal with most of the 
runoff between September and October, and mean annual rainfall ranging 
from 24 to 40 inches (600 to 1,110 millimeters) (Lugo et al. 1978, p. 
278). Moisture availability as a function of shallow soils plus low 
rainfall and its seasonality determine the forest productivity, growth 
characteristics, water loss, and physiognomy in subtropical dry forest 
life zones where temperature tends to be constant throughout the year 
(Lugo et al. 1978, p. 278). The most recently discovered populations of 
marron bacora occur on dry and poor soils (Ray and Stanford 2005, p. 
6). Historically, the species was locally abundant in exposed 
topography on sites disturbed by erosion (depositional zones at the toe 
of the slopes), areas that have received moderate grazing, and around 
ridgelines as an understory component in diverse woodland communities 
(Carper and Ray 2008, p. 1).
    The specific microhabitat requirements of marron bacora remain 
unknown, but like other species within the genus Solanum, marron bacora 
may be adapted to poor soils and some sort of natural disturbance 
(e.g., hurricanes). The habitat has been fragmented and degraded due to 
the historic land-use changes.
    Based on the hermaphroditic and dioecious biology of marron bacora, 
the species requires cross-pollination. Recent surveys by the Service 
(May 2017) recorded carpenter bees (Xylocopa mordax) and honey bees 
(Apis mellifera) visiting the flowers of marron bacora at Nanny Point 
(USFWS 2017, p. 7). Nanny Point is the largest known population and 
harbors the majority of the species' genetic diversity. It is the only 
population showing some evidence of natural recruitment (Stanford et 
al. 2013, p. 178). Further habitat modification and fragmentation at 
Nanny Point may adversely affect the genetic exchange (cross-
pollination) with other natural populations (e.g., Johns Folly), and 
may further reduce suitable habitat needed for seedling recruitment, 
thus compromising the species' viability.
    We cannot attribute the lack of natural recruitment to low seed 
viability, as germination under nursery conditions is almost 100 
percent (Ray and Stanford 2005, p. 6). Fruit and seedling predation

[[Page 52531]]

by feral ungulates (e.g., deer and goats) may be largely responsible 
for the low levels of seedlings recruitment and the predominant old 
population structure of the species. In addition, despite the ability 
of marron bacora to colonize disturbed areas, any seedling or juvenile 
may be outcompeted by exotic, invasive plant species such Guinea grass 
(Megathyrsus maximus) and tan-tan (Leucaena leucocephala) (IC 2018, p. 
3). Therefore, in order to secure viable populations of marron bacora, 
the species needs extended forested habitat dominated by native plants 
that provides for connectivity between populations to promote cross-
pollination and gene flow, and the habitat conditions for long-term 
recruitment in the absence of invasive plants and feral ungulates.
    As indicated above, marron bacora is a shrub endemic to the dry 
forest of St. John (USVI) and Tortola (BVI). At approximately 53 square 
kilometers (20.5 square miles) in area, the island of St. John has the 
greatest amount of forest cover (91.6 percent) and mature secondary 
forest (20 percent) in relation to land area compared to the adjacent 
islands (USVI). NPS, under its Organic Act, is responsible for managing 
the National Parks to conserve their scenery, natural and historic 
objects, and wildlife. In addition, the National Parks Omnibus 
Management Act of 1998 requires NPS to inventory and monitor its 
natural resources. 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).

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 2018, entire; 
available on http://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 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 Zanthoxyllum 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 proposed units are occupied habitat by the species 
at the time of proposed 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 currently proposing to 
designate 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 proposed critical habitat 
designation includes all currently occupied areas within the historical 
range that have retained the necessary physical or biological features 
that will 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 proposed critical 
habitat include a habitat suitability model (by selecting areas 
identified as containing moderate and high quality habitat for the 
species) developed by Palumbo et al. (2016), 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 694.94 hectares (ha) 
(1,717.23 acres (ac)) of high-quality habitat, 1,274.94 ha (3150.45 ac) 
of moderate-quality habitat, 1,568.53 ha (3,875.92 ac) of low-quality 
habitat, 1,343.16 ha (3,319.16 ac) of poor-quality habitat, and 186.88 
ha (461.79 ac) 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 (USFWS 2017, 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, to delineate the critical habitat unit 
boundaries the areas originally identified as moderate and high quality 
for the species identified by Palumbo et el. (2016, p. 5) were slightly 
expanded to include further habitat at higher elevations consistent 
with the

[[Page 52532]]

recently discovered populations (Reef Bay Trail).
    We analyzed recent satellite images to identify areas dominated by 
native forest vegetation associated to known localities for the species 
within St. John. Finally, we adjusted the elevation to 150 m (492 ft), 
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 proposed 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 proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    We propose to designate as critical habitat lands that we have 
determined are occupied at the time of listing (i.e., 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 all of the 
identified physical or biological features and support multiple life-
history processes for marron bacora.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document under Proposed Regulation Promulgation. We include 
more detailed information on the boundaries of the proposed 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 http://www.regulations.gov at Docket No. FWS-R4-ES-
2019-0050, or on our internet site, https://www.fws.gov/southeast/caribbean.

Proposed Critical Habitat Designation

    We are proposing 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 propose as critical habitat are: 
(1) South and (2) North. Table 4 shows the proposed critical habitat 
units, the land ownership, and the approximate area of each unit. Both 
units are occupied at the time of listing.

      Table 4--Proposed Critical Habitat Units for Marron Bacora With Ownership, Area, and Occupied Status
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                      Land ownership by       Size of unit in acres
       Critical habitat unit                 type                 (hectares) *                 Occupied?
----------------------------------------------------------------------------------------------------------------
1. South..........................  Federal (NPS) Private  1,635 ac (664 ha).........  Yes.
                                                           71 ac (29 ha).............
                                                           Unit total: 1,706 ac (690
                                                            ha).
2. North..........................  Federal (NPS)........  844 ac (343 ha)...........  Yes.
                                                          ----------------------------
    Total.........................  .....................  2,549 ac (1,033 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 a total of 1,706 ac (690 ha). Approximately 
1,635 ac (664 ha) are managed by NPS within the Virgin Islands National 
Park (VINP), and approximately 71 ac (29 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 proposed 
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.
    Ongoing and potential threats or activities that occur in this unit 
are urban and tourist 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 a total of 844 ac (343 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 proposed 
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

[[Page 52533]]

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. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final regulation with a revised definition of 
destruction or adverse modification on August 27, 2019 (84 FR 44976). 
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 enter into 
consultation 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 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 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, we have listed a new species 
or designated critical habitat that may be affected by the Federal 
action, or the action has been modified in a manner that affects the 
species or critical habitat in a way not considered in the previous 
consultation. In such situations, Federal agencies sometimes 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 Services may, during a consultation under 
section 7(a)(2) of the Act, find are 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 
cause 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 geographic areas owned or controlled by the Department 
of Defense (DoD), or designated for its use, that are subject to

[[Page 52534]]

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 proposed 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 he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making 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.
    The first sentence in section 4(b)(2) of the Act requires that we 
take into consideration the economic, national security, or other 
relevant impacts of designating any particular area as critical 
habitat. We describe below the process that we undertook for taking 
into consideration each category of impacts and our analyses of the 
relevant impacts.

Consideration of 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. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). The baseline, therefore, represents the costs of 
all efforts attributable to the listing of the species under the Act 
(i.e., conservation of the species and its habitat incurred regardless 
of whether critical habitat is designated). The ``with critical 
habitat'' scenario describes the incremental impacts associated 
specifically with the designation of critical habitat for the species. 
The incremental conservation efforts and associated impacts would not 
be expected without the designation of critical habitat for the 
species. In other words, the incremental costs are those attributable 
solely to the designation of critical habitat, above and beyond the 
baseline costs. These are the costs we use when evaluating the benefits 
of inclusion and exclusion of particular areas from the final 
designation of critical habitat should we choose to conduct a 
discretionary 4(b)(2) exclusion analysis.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for marron bacora (IEc 2019). We began by conducting a 
screening analysis of the proposed designation of critical habitat in 
order to focus our analysis on the key factors that are likely to 
result in incremental economic impacts. The purpose of the screening 
analysis is to filter out the geographic areas in which the critical 
habitat designation is unlikely to result in probable incremental 
economic impacts. In particular, the screening analysis considers 
baseline costs (i.e., absent critical habitat designation) and includes 
probable economic impacts where land and water use may be subject to 
conservation plans, land management plans, best management practices, 
or regulations that protect the habitat area as a result of the Federal 
listing status of the species. The screening analysis filters out 
particular areas of critical habitat that are already subject to such 
protections and are, therefore, unlikely to incur incremental economic 
impacts. Ultimately, the screening analysis allows us to focus our 
analysis on evaluating the specific areas or sectors that may incur 
probable incremental economic impacts as a result of the designation. 
The screening analysis also assesses whether units are unoccupied by 
the species and may require additional management or conservation 
efforts as a result of the critical habitat designation for the species 
that may incur incremental economic impacts. This screening analysis 
combined with the information contained in our IEM are what we consider 
our draft economic analysis (DEA) of the proposed critical habitat 
designation for the marron bacora; our DEA is summarized in the 
narrative below.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities.
    As part of our screening analysis, we considered the types of 
economic activities that are likely to occur within the areas likely to 
be affected if we adopt the critical habitat designation as proposed. 
In our evaluation of the probable incremental economic impacts that may 
result from the proposed designation of critical habitat for the marron 
bacora, first we identified, in the IEM dated September 16, 2019 
(Service 2019, entire), probable incremental economic impacts 
associated with the following categories of activities: (1) Federal 
lands management from recreational activities (e.g., hiking, bicycles, 
ATVs), trails, grazing, and erosion and fire management control; (2) 
transportation (road construction and maintenance); (3) feral mammal 
control; and (4) tourism or residential developments. We considered 
each industry or category individually.
    Additionally, we considered whether these activities have any 
Federal involvement. Critical habitat designation generally will not 
affect activities that do not have any Federal involvement; under the 
Act, designation of critical habitat only affects activities conducted, 
funded, permitted, or

[[Page 52535]]

authorized by Federal agencies. If we list the species, in areas where 
marron bacora is present, Federal agencies would be required to consult 
with the Service under section 7 of the Act on activities they fund, 
permit, or implement that may affect the species. If, when we list the 
species, we also finalize this proposed critical habitat designation, 
consultations to avoid the destruction or adverse modification of 
critical habitat would be incorporated into that existing consultation 
process.
    In our IEM, we attempted to clarify the distinction between the 
effects that will result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for marron 
bacora's critical habitat. Because the designation of critical habitat 
for marron bacora is proposed concurrently with the listing, it has 
been our experience that it is more difficult to discern which 
conservation efforts are attributable to the species being listed and 
those which will result solely from the designation of critical 
habitat. However, the following specific circumstances in this case 
help to inform our evaluation: (1) The essential physical or biological 
features identified for critical habitat are the same features 
essential for the life requisites of the species, and (2) any actions 
that would result in sufficient harm to constitute jeopardy to marron 
bacora would also likely adversely affect the essential physical or 
biological features of critical habitat. The IEM outlines our rationale 
concerning this limited distinction between baseline conservation 
efforts and incremental impacts of the designation of critical habitat 
for this species. This evaluation of the incremental effects has been 
used as the basis to evaluate the probable incremental economic impacts 
of this proposed designation of critical habitat. The following 
describes the information provided in the DEA:
Section 7 Costs
    The economic costs of implementing the rule associated with section 
7 of the Act would most likely be limited to additional administrative 
effort to consider adverse modification during consultations. This 
finding is based on the following factors:
    (1) For the purposes of consultation, the Service considers both 
proposed critical habitat units to be occupied by the species. Thus, 
incremental consultations resulting solely from the designation of 
critical habitat are unlikely.
    (2) Project modifications likely to be recommended by the Service 
to avoid adverse modification of critical habitat are anticipated to be 
the same as those needed to avoid jeopardizing the species.
    Based on a review of available information, no more than two 
technical assistance projects and no more than one informal 
consultation are likely to occur in a given year. The additional 
administrative cost of addressing adverse modification in these 
projects is not expected to exceed $3,300 in a given year.
Other Costs
    The designation of critical habitat is not expected to trigger 
additional requirements under territorial or local regulations. We are 
unable to quantify the degree to which the public's perception of 
possible restrictions on the use of public land could reduce the value 
of private property. We recognize that a number of factors may already 
result in perception-related effects, including the presence of marron 
bacora and other federally listed species, which may temper any 
additional perception-related effects of critical habitat designation.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rule and our 
required determinations. During the development of the final 
designation, we will consider the information presented in the DEA and 
any information on economic impacts we receive during the public 
comment period to determine 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. We 
may revise the proposed rule or supporting documents to incorporate or 
address information we receive during the public comment period. In 
particular, in the final designation, we may exclude an area from 
critical habitat if we determine that the benefits of excluding the 
area outweigh the benefits of including the area, provided the 
exclusion will not result in the extinction of this species.

Consideration of National Security Impacts

    In preparing this proposal, we have determined that the lands 
within the proposed designation of critical habitat for marron bacora 
are not owned, managed, or used by the Department of Defense or the 
Department of Homeland Security, and, therefore, we anticipate no 
impact on national security. However, during the development of a final 
designation, we will consider any additional information we receive 
through the public comment period on the impacts of the proposed 
designation on national security or homeland security to determine 
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.

Consideration of Other Relevant Impacts

    We have not considered any areas for exclusion from critical 
habitat. However, the final decision on whether to exclude any areas 
will be based on the best scientific data available at the time of the 
final designation, including information obtained during the comment 
period and information about the economic impact of designation. 
Accordingly, we have prepared a draft economic analysis concerning the 
proposed critical habitat designation, which is available for review 
and comment (see ADDRESSES).

Exclusions

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. 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 (SHAs), 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.
    In preparing this proposal, we have determined that there are 
currently no HCPs or other management plans for marron bacora, and the 
proposed designation does not include any tribal lands or trust 
resources. We anticipate no impact on tribal lands, partnerships, or 
HCPs from this proposed critical habitat designation. Additionally, as 
described above, we are not proposing to exclude any particular areas 
on the basis of impacts to national security or economic impacts.
    During the development of a final designation, we will consider any 
additional information we receive through the public comment period 
regarding other relevant impacts to

[[Page 52536]]

determine 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.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. The Office of Information and Regulatory 
Affairs has waived their review regarding their significance 
determination of this proposed rule.
    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 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 the 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 would be directly 
regulated if we adopt the proposed 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 would be directly 
regulated by this rulemaking, the Service certifies that, if made final 
as proposed, the proposed critical habitat designation will not have a 
significant economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would 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, if made final, the proposed 
critical habitat designation will not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

Executive Order 13771

    We do not believe this proposed rule is an E.O. 13771 (``Reducing 
Regulation and Controlling Regulatory Costs'') (82 FR 9339, February 3, 
2017) regulatory action because we believe this rule is not significant 
under E.O. 12866; however, the Office of Information and Regulatory 
Affairs has waived their review regarding their E.O. 12866 significance 
determination of this proposed rule.

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 the 
designation of this proposed critical habitat will significantly affect 
energy supplies, distribution, or use due to the absence of any energy 
supply or distribution lines in the proposed

[[Page 52537]]

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 proposed rule would 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 would significantly or 
uniquely affect small governments because the lands proposed for 
critical habitat designation are primarily Federal lands (97 percent), 
with a small amount of private land (3 percent). Small governments 
would be affected only to the extent that any 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 
proposed designation of critical habitat for marron bacora, and it 
concludes that, if adopted, 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 proposed 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 proposed critical habitat designation 
with, appropriate State 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, the proposed rule does 
not have substantial direct effects either on the States, or on the 
relationship between the Federal Government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The proposed 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 State and local 
governments in long-range planning because they no longer have to wait 
for case-by-case section 7 consultations to occur.
    Where State 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 would 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 have proposed designating 
critical habitat in accordance with the provisions of the

[[Page 52538]]

Act. To assist the public in understanding the habitat needs of the 
species, this proposed rule identifies the elements of physical or 
biological features essential to the conservation of the species. The 
proposed areas of designated critical habitat are presented on maps, 
and the proposed 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 designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This 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)).

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at http://www.regulations.gov and upon request from the 
Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

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


Sec.  17.12   Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                           Listing citations and
        Scientific name              Common name        Where listed          Status         applicable rules
----------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                                  * * * * * * *
Solanum conocarpum.............  Marron bacora.....  Wherever found....  E                [Federal Register
                                                                                           citation when
                                                                                           published as a final
                                                                                           rule]; 50 CFR
                                                                                           17.96(a).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.96(a) by:
0
a. Adding Family Solanaceae in alphabetical order to the list of 
families; and
0
b. Adding an entry for ``Solanum conocarpum'' in alphabetical order 
under Family Solanaceae.
    The additions read as set forth below.


Sec.  17.96   Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    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 Zanthoxyllum 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 
the effective date of this rule.
    (4) Critical habitat map units. 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, https://www.fws.gov/southeast/caribbean, or http://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

[[Page 52539]]

of the Service regional offices, the addresses of which are listed at 
50 CFR 2.2.
    (5) Note: Index map follows:
    [GRAPHIC] [TIFF OMITTED] TP26AU20.010
    
    (6) Unit 1: South Unit, St. John, U.S. Virgin Islands.
    (i) General description: Unit 1 consists of 1,706 acres (690 
hectares) 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 1,635 ac (664 ha) of Federal lands managed by the 
U.S. National Park Service and 71 acres (29 hectares) of privately 
owned lands.
    (ii) Map of Unit 1 follows:
    [GRAPHIC] [TIFF OMITTED] TP26AU20.011
    

[[Page 52540]]


    (7) Unit 2: North Unit, St. John, U.S. Virgin Islands.
    (i) General description: Unit 2 consists of 844 acres (343 
hectares) 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] TP26AU20.012
    
* * * * *

Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-17091 Filed 8-25-20; 8:45 am]
BILLING CODE 4333-15-P