Rule2022-12944
Endangered and Threatened Wildlife and Plants; Endangered Species Status for Marron Bacora and Designation of Critical Habitat
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 16, 2022
Effective
July 18, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), are listing marron bacora (Solanum conocarpum), a plant species from the U.S. and British Virgin Islands, as an endangered species and are designating critical habitat for the species under the Endangered Species Act of 1973, as amended (Act). In total, approximately 2,548 acres (1,031 hectares) on St. John, U.S. Virgin Islands, fall within the boundaries of the critical habitat designation. This rule adds this species to the Federal List of Endangered and Threatened Plants and extends the Act's protections to the species and its designated critical habitat.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 116 (Thursday, June 16, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 116 (Thursday, June 16, 2022)]
[Rules and Regulations]
[Pages 36225-36248]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-12944]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2019-0050; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE15
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Marron Bacora and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are listing
marron bacora (Solanum conocarpum), a plant species from the U.S. and
British Virgin Islands, as an endangered species and are designating
critical habitat for the species under the Endangered Species Act of
1973, as amended (Act). In total, approximately 2,548 acres (1,031
hectares) on St. John, U.S. Virgin Islands, fall within the boundaries
of the critical habitat designation. This rule adds this species to the
Federal List of Endangered and Threatened Plants and extends the Act's
protections to the species and its designated critical habitat.
DATES: This rule is effective July 18, 2022.
ADDRESSES: This final rule is available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> in Docket No. FWS-R4-ES-2019-0050. Comments and
materials we received, as well as supporting documentation we used in
preparing this rule, are available for public inspection in the docket
on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. For the critical habitat designation,
the coordinates or plot points or both from which the maps are
generated are included in the decision file for the critical habitat
designation and are available at the Caribbean Ecological Services
Field Office's website (<a href="https://www.fws.gov/office/caribbean-ecological-services/library">https://www.fws.gov/office/caribbean-ecological-services/library</a>) and at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under
Docket No. FWS-R4-ES-2019-0050.
FOR FURTHER INFORMATION CONTACT: Edwin Mu[ntilde]iz, Field Supervisor,
U.S. Fish and Wildlife Service, Caribbean Ecological Services Field
Office, P.O. Box 491, Road 301 Km 5.1, Boquer[oacute]n, PR 00622;
telephone 787-244-0081; email <a href="/cdn-cgi/l/email-protection#c0a3a1b2a9a2a2a5a1ae9fa5b380a6b7b3eea7afb6"><span class="__cf_email__" data-cfemail="86e5e7f4efe4e4e3e7e8d9e3f5c6e0f1f5a8e1e9f0">[email protected]</span></a>. Individuals in the
United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered in the foreseeable
future throughout all or a significant portion of its range). We have
determined that the marron bacora meets the definition of an endangered
species; therefore, we are listing it as such. To the maximum extent
prudent and determinable, we must designate critical habitat for any
species that we determine to be an endangered or threatened species
under the Act. Listing a species as an endangered or threatened species
and designation of critical habitat can be completed only by issuing a
rule.
What this rule does. This rule lists marron bacora (Solanum
conocarpum) as an endangered species under the Act and designates
approximately 2,548 acres (ac) (1,031 hectares (ha)) on St. John, U.S.
Virgin Islands (USVI), as critical habitat for the species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the primary threats acting
on marron bacora are habitat destruction or modification by exotic
mammal species (e.g., white-tailed deer, goats, pigs, and donkeys) and
invasive plants and exotic plants (e.g., guinea grass) (Factor A);
herbivory by nonnative, feral ungulates and insect pests (Factor C);
and the lack of natural recruitment, absence of dispersers, fragmented
distribution and small population size, lack of genetic diversity, and
climate change (Factor E).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
We are designating 2,548 ac (1,031 ha), consisting of two units on St.
John, USVI, as critical habitat for marron bacora in this rule. We have
excluded 1.33 ac (0.54 ha) from the South Unit.
Previous Federal Actions
Please refer to the proposed rule to list and designate critical
habitat for the marron bacora (85 FR 52516; August 26, 2020) for a
detailed description of previous Federal actions concerning this
species.
Summary of Changes From the Proposed Rule
This final rule incorporates changes to our proposal (85 FR 52516;
August 26, 2020) based on the comments we received, as discussed below
under Summary of Comments and Recommendations. Based on these comments,
we also incorporated, as appropriate, new information into our SSA
report. Minor, nonsubstantive changes and editorial corrections were
made throughout both documents in response to comments. However, the
information we received during the public comment period on the
proposed rule did not change our determination that the marron bacora
meets the definition of an endangered species. The information provided
a better understanding of a finer scale of the proposed critical
habitat units, and we applied changes accordingly.
Specifically, based on new information received from a private
[[Page 36226]]
landowner in a letter dated October 26, 2020, and after considering the
benefits of exclusion versus the benefits of inclusion, we revised Unit
1 (South Unit) to exclude 1.33 acres (0.54 ha) from the critical
habitat designation. This unit now consists of approximately 1,704 ac
(690 ha), which is a decrease of approximately 0.06 percent of the area
proposed for Unit 1. Because of this exclusion, we revised the index
and relevant unit maps, and we updated the coordinates or plot points
from which those maps were generated. The information is available at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R4-ES-2019-0050, and
from the Caribbean Ecological Services Field Office website at <a href="https://www.fws.gov/office/caribbean-ecological-services/library">https://www.fws.gov/office/caribbean-ecological-services/library</a>.
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the marron bacora. The SSA team was composed of Service biologists, in
consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species (Service 2020, entire).
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act (16 U.S.C. 1531 et seq.), we sought the
expert opinions of six appropriate specialists regarding the initial
SSA report, version 1.0 (Service 2019, entire). We received comments
from one of the six reviewers. The reviewer was generally supportive of
our approach and made suggestions and comments that strengthened our
analysis. We also considered all comments and information we received
during the comment period. The SSA report, version 1.1 (Service 2020,
entire), and other materials relating to this rule can be found at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R4-ES-2019-0050.
I. Final Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
marron bacora is presented in the SSA report (Service 2020, entire).
Marron bacora is a dry-forest, perennial shrub of the Solanaceae
(or nightshade) family that is endemic to the Virgin Islands. It has
small purple flowers and can grow to a height of around 9.8 feet (ft)
(3 meters (m)). The plants produce a green fruit with white striations
and golden yellow when ripe (Acevedo-Rodriguez 1996, p. 415). The
species typically requires pollinators for reproductive success but may
self-pollinate under certain conditions.
The historical range of the species includes St. John and possibly
St. Thomas, USVI; however, recent surveys found the species on the
neighboring island, Tortola, British Virgin Islands (BVI). An
additional, unconfirmed record from plant material was collected in
1969 at Gordon Peak on Virgin Gorda, BVI (Acevedo-Rodr[iacute]guez
1996, p. 415). Suitable habitat for the species occurs on Virgin Gorda;
however, that is the only record of the species on that island, and
there have been no other records since the single plant was found in
1969. At least three populations on St. John have been extirpated.
The species is currently found on St. John, USVI, and Tortola, BVI,
with a fragmented distribution of seven populations on St. John (Nanny
Point, Friis Bay, Johns Folly, Brown Bay Trail, Reef Bay Trail, Base
Hill, Brown Bay Ridge, Sabbat Point, Reef Bay Valley, and Europa Ridge)
and a single population on Tortola (Sabbath Hill). St. John has a
history of land-use changes that resulted in habitat loss and
degradation, further isolating suitable habitats in patches that were
not readily connected. The flowers of marron bacora plants have both
anthers and pistols with morphological characteristics to differentiate
the male and female plants; the male plants have long anthers with
shorter pistils while the female plants have short, recurved anthers
with an elongated pistil. Even though the flowers are hermaphroditic,
the species is functionally dioecious (separate male and female plants)
obligate out-crosser and typically self-incompatible (Anderson et al.
2015, p. 479), so the larger the population, the better for ensuring
successful reproduction and maintaining genetic diversity within
populations.
Please refer to the proposed listing rule for the marron bacora (85
FR 52516; August 26, 2020) for more species information.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species. The
Act defines an ``endangered species'' as a species that is in danger of
extinction throughout all or a significant portion of its range, and a
``threatened species'' as a species that is likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range. The Act requires that we determine
whether any species is an endangered species or a threatened species
because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive
[[Page 36227]]
effects on the species, such as any existing regulatory mechanisms or
conservation efforts. The Secretary determines whether the species
meets the definition of an ``endangered species'' or a ``threatened
species'' only after conducting this cumulative analysis and describing
the expected effect on the species now and in the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Service can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the species should be listed as an endangered or
threatened species under the Act. It does, however, provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies. The following is a summary of
the key results and conclusions from the SSA report, version 1.1; the
full SSA report (Service 2020, entire) can be found at Docket No. FWS-
R4-ES-2019-0050 on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
To assess marron bacora's viability, we used the three conservation
biology principles of resiliency, redundancy, and representation
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the
ability of the species to withstand environmental and demographic
stochasticity (for example, wet or dry, warm or cold years), redundancy
supports the ability of the species to withstand catastrophic events
(for example, droughts, large pollution events), and representation
supports the ability of the species to adapt over time to long-term
changes in the environment (for example, climate changes). In general,
the more resilient and redundant a species is and the more
representation it has, the more likely it is to sustain populations
over time, even under changing environmental conditions. Using these
principles, we identified the species' ecological requirements for
survival and reproduction at the individual, population, and species
levels, and described the beneficial and risk factors influencing the
species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
The stressors acting on the species as described in the SSA report
include invasive species (plants and animals), predation, demographic
and genetic consequences of small population size and density, human-
induced fires, insect pests and pathogens, changes in phenology and
breeding systems, climate change/hurricanes, and habitat loss/
degradation.
Species Needs
In order to understand the species' viability, we considered the
best available information in describing the species' needs, including
habitat, reproduction, and other environmental influences such as
precipitation. We provide an overview of the species' suitable habitat
description and conditions for successful reproduction.
With marron bacora's endemism on two islands, the habitat is
primarily based on forest type, soil characteristics, and elevation.
The species occurs in dry, deciduous forest with dry soils (Acevedo-
Rodr[iacute]guez 1996, p. 415). Marron bacora plants are locally
abundant in exposed sites that have been disturbed by erosion as well
as in areas that have received moderate grazing, and around ridgelines
as an understory component in diverse woodland communities (Carper and
Ray 2008, p. 1). A habitat suitability model suggests that the vast
majority of marron bacora habitat is found in the lower elevation (<85
m, 278.87 ft) coastal scrub forest and that about 32 percent of the
land area of the Virgin Islands National Park (VINP) harbors suitable
habitat for the species (Vilella and Palumbo 2010, p. 10).
The majority of the marron bacora habitat lies within the
subtropical dry life zone, which is characterized by low annual
rainfall and a high evapotranspiration ratio (Ewel and Whitmore 1973,
p.10). In fact, more than 80 percent of St. John is considered as
subtropical dry forest (Stanford et al. 2013, p. 173). The vegetation
in the subtropical dry life zone tends to form a complete ground cover
and is almost completely deciduous (Ewel and Whitmore 1973, p. 10). As
an endemic to the Virgin Islands, marron bacora is adapted to these
environmental conditions, and the species' phenology is synchronized
with the rainy season. Most of the yearly rainfall on St. John occurs
between May and December with official hurricane season from June 1
through November 30.
In terms of successful reproduction for the species, the system of
breeding in marron bacora is very likely to be that of an obligate
outcrosser with self-incompatibility (Stanford et al. 2013, pp. 174;
Anderson et al. 2015, pp. 479). Recent findings support the
hermaphroditic and functionally dioecious biology of marron bacora
(Anderson et al. 2015, p. 479). There has been fruit production
recorded on isolated plants suggesting the species still has mechanisms
for self-pollination (Gibney pers. comm.).
[[Page 36228]]
Stressors Acting on the Species
The species is impacted by natural and anthropogenic influences
that may affect individual plants, the habitat, or populations in
varying degrees. The magnitude, timing, frequency, and severity of the
threats are influenced by additional biological and physical factors
associated with the species' habitat. We provide a brief overview of
those stressors and additional information can be found in the proposed
listing rule (85 FR 52516) and in the SSA report (Service 2020, pp. 34-
41).
Nonnative/Invasive Species
Marron bacora and its habitat are directly affected by nonnative
animals and plants. White-tailed deer (Odocoileus virginianus) were
introduced to St. John in the 1920s to provide hunting opportunities.
Since then, the deer range freely across the island, foraging on the
native vegetation, and according to local experts, populations of deer
are increasing on the island (E. Gibney, pers comm. 2017). There are
currently no estimates on the deer abundance on St. John, and with no
native predators to control the deer population, they are naturalized
and very abundant on the islands. The deer directly affect marron
bacora by browsing on the plants (seedlings and saplings) and fruits,
thus, precluding the species natural recruitment.
Other nonnative species used as livestock, including cattle, hogs
(Sus scrofa), goats (Capra aegagrus hircus), and donkeys (Equus
africanus asinus), have also naturalized and have been recorded within
the VINP. Depredation of marron bacora fruits and seedlings by feral
ungulates has most likely caused the lack of natural recruitment. Deer
and livestock not only forage on marron bacora plants, but they also
trample plants and degrade the habitat conditions.
Invasive plant species are also abundant on St. John and Tortola
and outcompete native species for space, water, and light as they
change the structure of the vegetative community and restrict available
resources for native species. The marron bacora habitat at Nanny Point
has been negatively affected by encroachment of invasive exotic grasses
and vines following Hurricanes Irma and Maria in 2017 (IC Report 2018,
pp. 3, 12). These exotic and invasive species outcompete marron bacora
and further reduce the chances of natural recruitment by modifying the
microhabitat conditions necessary for seedling establishment. The
threat by invasive plant species is more severe at the biggest known
populations of marron bacora, Nanny Point (USVI) and Sabbat Hill (BVI).
Insect Pests and Pathogens
Although the majority of known marron bacora populations are
relatively protected because they are found on lands managed for
conservation by NPS, the small size of populations coupled with the
effects of insect pests or pathogens could contribute to local
extirpation. For example, although the Reef Bay Valley population
consisted of 6 wild individuals and 60 introduced individuals in 2011,
the population was considered extirpated by 2017, most likely due to a
low survival rate for the introduced marron bacora individuals.
However, an unknown pathogen was documented in that population
(Stanford et al. 2013, p. 178), which also may have contributed to its
loss. More recently, in 2018, 63 percent of the marron bacora
individuals at Nanny Point showed some sort of stem dieback; however,
it is not clear if this is due to some pest or disease (IC Report 2018,
p. 5). Nonetheless, recent observations indicate that dieback is
clustered mainly to the eastern corner of the Nanny Point population
and associated with edge vegetation (vines and shrub land vegetation
exposed to salt spray).
In addition, we recorded the presence of the Jacaranda bug
(Insignorthezia insignis) at the Nanny Point population, and the scale
insects, Praelongorthezia praelonga (Douglas) and Insignorthezia
insignis, on plants at the gardens of the National Park Service (NPS)
facilities (Service 2017a, p. 14). The Jacaranda bug is a sap-feeding
insect in the Orthezidae family. The scale insect (Praelongorthezia
praelonga) can also damage plants directly by sucking their sap, or
indirectly by injecting toxic salivary secretions that may attract
ants, transmit pathogens, and encourage growth of sooty molds (Ramos et
al. 2018, p. 273). Our assessment of the effects of these insects and
pathogens on marron bacora is based on the information available
regarding their effects on other species of plants that occur on St.
John (e.g., Ramos et al. 2018, p. 273), and on our observations in the
field during marron bacora assessments (Monsegur and Yrigoyen 2018,
pers. comm.). No studies have been carried out to ascertain the extent
of potential impacts by these pests specifically on marron bacora.
However, the low number and small size of the known populations makes
marron bacora vulnerable to insect pests, which may constrain the
already reduced reproductive output and recruitment of the species.
Effects of Small Population Sizes
The consequences of small population sizes affect sessile species
by limiting the ability to interact with others and maintain genetic
diversity. Marron bacora currently shows overall low numbers of
individuals, low numbers of populations, and low numbers of individuals
at each population site, which is reflected in low resiliency,
redundancy, and representation. While the genetic diversity at the
species level of marron bacora is relatively high, the majority of its
diversity is confined to the largest population at Nanny Point
(Stanford 2013, p. 178). The current fragmented population distribution
may result in Allee effects due to small population sizes, a lack of
genetic exchange among populations, and eventual genetic drift. Allee
effects influence the individual fitness of plants; with smaller, less
dense populations, successful reproduction declines because there are
fewer pollination opportunities between individual plants that have a
greater distance between them.
Habitat Loss/Degradation
By 1717, the forested landscape of St. John was parceled into more
than 100 estates for agriculture (i.e., sugarcane and cotton), and the
majority of this landscape was deforested. Under this land-use regime,
marron bacora populations were decimated, as the species had no
economic importance or use. The current fragmented distribution of
marron bacora is most likely the result of that historical land
clearing for agriculture and the subsequent development that has
occurred since the 1700s. Even though these land-use changes occurred
centuries ago, long-lasting effects continue to impact the condition of
the habitat; the effects on the species are exacerbated by the species'
reproductive biology, the absence of seed dispersal, suspected fruit
predation, and further habitat modification by feral ungulates.
At present, the Friis Bay (St. John, USVI) and Sabbath Hill
(Tortola, BVI) populations are located on private lands vulnerable to
habitat modification due to urban development. In addition, the Nanny
Point and Johns Folly populations are situated within VINP lands just
at the park boundary, and there is potential for urban and tourism
development in the future, resulting in possible direct impacts to the
species and interrelated effects (lack of habitat connectivity and
cross pollination, and further habitat encroachment by exotic plant
species). While the land that harbors the Nanny Point population is
[[Page 36229]]
located on VINP, the adjacent private land could be at risk of
development, which may directly affect the species' most resilient
population.
Climate Change and Hurricanes
Hurricanes and tropical storms frequently affect the islands of the
Caribbean; thus, native plants should be adapted to such disturbance.
In fact, successional responses to hurricanes can influence the
structure and composition of plant communities in the Caribbean islands
(Van Bloem et al. 2005, p. 576). However, climate change is predicted
to increase tropical storm frequency and intensity and also cause
severe droughts (Hopkinson et al. 2008, p. 255). Climate model
simulations indicate an increase in global tropical cyclone intensity
in a warmer world, as well as an increase in the number of very intense
tropical cyclones, consistent with current scientific understanding of
the physics of the climate system (USGCRP 2018, p. 2). The
vulnerability of species to climate change is a function of sensitivity
to changes and exposure to those changes, and the adaptive capacity of
the species (Glick et al. 2011, p. 1). Within natural conditions, it is
likely that marron bacora is well-adapted to these atmospheric events.
However, the cumulative effects of severe tropical storms and
associated increased sediment runoff (erosion), along with the species'
small population size and reduced natural recruitment, may jeopardize
the future establishment of seedlings along drainage areas usually
associated with suitable habitat for marron bacora (Ray and Stanford
2005, p. 2). There is evidence of direct impacts to the Nanny Point
population due to a flash flood event associated with Hurricane Irma
that hit St. John on September 6, 2017 (Service 2017b, p. 3).
Additive climate change stressors projected for the future include:
(a) increased number and intensity of strong storms, (b) increased
temperatures, and (c) shifts in the timing and amounts of seasonal
precipitation patterns. Despite projected increased storm intensity and
frequency related to future hurricane seasons, climate change models
for tropical islands predict that, for example, by the mid-21st
century, Puerto Rico will be subject to a decrease in overall rainfall,
along with an increase in annual drought intensity (Khalyani et al.
2016, pp. 274-275). Thus, due to the proximity of Puerto Rico to St.
John, and that these islands belong to the same biogeographical unit
(Puerto Rican Bank), these model predictions could also extend to the
USVI (including St. John). Given the low number of known populations
and individuals, and the lack of natural recruitment of marron bacora,
the species may not have the genetic breadth to adapt to these
predicted conditions. In addition, there is little knowledge of marron
bacora's life history (e.g., fruit/seed dispersers and germination
requirements in the wild); the species has a restricted known range
(e.g., mainly St. John); and its habitat is degraded due to free-
ranging populations of feral animals (e.g., deer and goats), which
precludes recruitment of new individuals. Moreover, in 2017, the island
of St. John was affected by two catastrophic hurricanes (Irma and
Maria), resulting in direct adverse impacts to individuals of marron
bacora and its habitat. Marron bacora habitat remains encroached by
weedy plants that persist more than 2 years after these atmospheric
events and continue to affect the species.
Synergistic Effects
Synergistic interactions are possible between the effects of
climate change and other potential threats such as nonnative species,
pests, and development. The extent of impacts to the species due to
synergistic threats is not well understood, as there is uncertainty in
how nonnative species (plants and animals) may respond to climate
variables such as increased drought and changes in hurricane frequency
and intensity. We expect the synergistic effects of the current and
future threats acting on the species will exacerbate the decline in the
species' viability by continued declines in reproductive success.
Projecting the extent of synergistic effects of climate change on
marron bacora is too speculative due to the complexity and uncertainty
of the species' response to the combination of dynamic factors that
influence its viability.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Existing Regulatory Mechanisms and Conservation Efforts
The existing regulatory mechanisms for marron bacora include
Federal and Territory protections of the species that include NPS
Organic Act and U.S. Virgin Island's Department of Planning and Natural
Resources listing of the species. The NPS' Organic Act (54 U.S.C.
100101 et seq.) requires the NPS to manage the national parks,
including the VINP on St. John, to conserve their scenery, natural and
historic objects, and wildlife. In addition, the National Parks Omnibus
Management Act of 1998 (Pub. L. 105-391), Title II, ``National Park
System Resource Inventory and Management,'' mandates research in order
to enhance management and protection of national park resources by
providing clear authority and direction for the conduct of scientific
study in the National Park System and to use the information gathered
for management purposes. This law affects not only the NPS, but other
Federal agencies, universities, and other entities that conduct
research within the National Park system. Currently, the NPS has
implemented its resource management responsibilities through its
management policies, section 4.4.1, which state that NPS ``will
maintain as parts of the natural ecosystems of parks all plants and
animals native to park ecosystems'' (NPS 2006, p. 42).
The Territory of the U.S. Virgin Islands currently considers marron
bacora to be endangered under the Virgin Islands Indigenous and
Endangered Species Act (V.I. Code, title 12, chapter 2), and an
existing regulation provides for protection of endangered and
threatened wildlife and plants by prohibiting the take, injury, or
possession of indigenous plants. While these efforts and mechanisms
provide some protections for the species, they have not substantively
reduced the main factors affecting the species' viability.
Efforts to conserve the species have included a captive propagation
and planting program. Marron bacora has successfully been propagated by
a St. John horticulturist with cuttings and manually assisting
pollination by dusting the flowers (B. Kojis and R. Boulon, pers comm.,
November 20, 1996). Marron bacora specimens were then distributed to
various places with suitable habitat in the Virgin Islands (Ray and
Stanford 2005, p. 3). An
[[Page 36230]]
implementation plan was developed to conduct shade-house propagation of
marron bacora using both seedlings and cuttings for reintroduction
within VINP (Ray and Stanford 2003, p. 3). A Nanny Point landowner
funded and implemented a conservation plan for marron bacora through
germination and cloning of adult individuals to enhance natural
populations of the species at Nanny Point, Brown Bay Trail, and Johns
Folly (Ray and Carper 2009, p. 6; Ray 2005, p. 4). Under this
conservation plan, all individuals of marron bacora at Nanny Point were
flagged and tagged, had their basal diameter and height measured, and
were georeferenced (Ray 2005, p. 3). This plan resulted in the
propagation of at least 300 cuttings and their latter planting to
augment natural populations (Ray 2005, p. 6). Such efforts continued
with the enhancement (augmentation) of the Brown Bay Trail, Johns
Folly, and Nanny Point populations by planting cutting material; these
efforts saw overall survival of 97 percent 2 months after planting, but
the plants' long-term survival proved to be low due to ongoing threats
to the habitat (Ray and Carper 2009, p. 5). While the species has been
successfully propagated, the reintroductions have yielded unsuccessful
results with a very low long-term survival rate for propagated and
reintroduced plants, and even lower for relocated adult plants.
In 2017, funding was provided to Island Conservation through the
Service's Coastal Program to: (1) Propagate at least 100 marron bacora
individuals to enhance the largest known population at Nanny Point, (2)
introduce propagated materials to the Nanny Point population, (3)
assess the extent of impacts of invasive mammal species to marron
bacora and its habitat, (4) assess the extent of impacts by invasive
mammal species to additional sites identified for marron bacora
introduction, and (5) provide management recommendations for invasive
mammals in order to significantly advance the recovery of marron bacora
(IC Report 2018, p. 1). This project has been temporarily delayed in
order to allow archaeological surveys to be completed prior to any out-
planting.
Current Conditions
To determine the current condition of the species, we evaluated the
resiliency, redundancy, and representation of populations across the
landscape considering past and current stressors acting on the species
and its habitat. The description of the species' current condition is
described in more detail in the SSA report (Service 2020, pp. 19-28).
Resiliency
We generated resiliency scores using the best available information
for marron bacora by combining scores for three habitat metrics
(protection/development risk, feral ungulates, and pest depredation),
and one population metric (population size and/or trend, dependent on
availability). The scores for each population across all metrics were
summed, and final population resilience categories were assigned (see
Table 2, below).
Table 1--Description of How Habitat and Population Factors Were Scored To Determine Marron Bacora Resilience
----------------------------------------------------------------------------------------------------------------
Habitat metrics Population Metric
-------------------------------------------------------------------------------
Score Habitat protection/ Pest presence/ Population size/
development risk Feral ungulates depredation trend
----------------------------------------------------------------------------------------------------------------
-1.............................. Habitat not High number of High number of Relatively low
protected, at exotic mammals. pests present. population size
risk of being and/or declining
developed. trend.
0............................... Some habitat Unknown or Moderate number of Relatively
protected, and moderate number pests present. moderate
some at risk of of exotic mammals. population size
being developed. and stable trend,
or high degree of
uncertainty in
population size/
trends.
1............................... Habitat protected. Exotic mammals Pests absent...... Relatively high
absent. population size
and/or growth.
----------------------------------------------------------------------------------------------------------------
Table 2--Resiliency Score Categories for Marron Bacora Using Habitat and
Demographic Metrics
------------------------------------------------------------------------
------------------------------------------------------------------------
Resiliency Scores:
Low Resilience....................... -4 to -2.
Moderately Low Resilience............ -1.
Moderate Resilience.................. 0.
Moderately High Resilience........... 1.
High Resilience...................... 2 to 4.
------------------------------------------------------------------------
The species is known from two islands with 11 known populations, of
which 3 are extirpated. The resiliency of the extant populations varies
according to the abundance of individuals and habitat conditions at
each location. The remaining eight extant populations vary between a
single individual to 201 plants, and the habitat conditions vary
according to the site location. Additional information regarding the
details of the populations can be found in the proposed listing rule
(85 FR 52516).
Nanny Point (St. John, USVI)
The largest known population is on St. John at Nanny Point; in
2017, this population consisted of 75 mature adult individuals, 4
natural seedlings, and 44 planted individuals from past population
enhancement efforts (Service 2017a, p. 7). This population has been
negatively affected by herbivory, hurricanes, invasive plants, and the
Jacaranda bug. The Nanny Point population has low resilience because,
while the site is partially within VINP, it also overlaps with
unprotected, private lands; the population has a high presence of feral
ungulates, high insect predation, and a declining population size.
Friis Bay (St. John, USVI)
With the discovery of a new population in the BVI, this is now
believed to be the third largest natural
[[Page 36231]]
population of marron bacora, with an estimated 33 individuals (Ray and
Stanford 2005, p. 16). The current resilience of the Friis Bay
population is low because the habitat is at risk of high impacts from
feral ungulates.
Johns Folly (St. John, USVI)
This site is located upslope in a ravine about 700 m (2,296.6 ft)
northwest of the Nanny Point population. A 2017 population assessment
identified only 4 natural individuals and 1 natural seedling, and 13
plants corresponding to planted material from a previous population
enhancement with material from the Nanny Point population (Service
2017a, p. 7). The Johns Folly population has low resilience due to
habitat loss and fragmentation by development, low density of
pollinators, high presence of feral ungulates, and a declining
population.
Brown Bay Trail (St. John, USVI)
The Brown Bay Trail site is located along the Brown's Bay hiking
trail within the VINP, an area of mature secondary dry forest located
on the northeastern shore of St. John. The site is located on a slope
approximately 60 m (196.85 ft) from shore and the population is
composed of a single natural individual and planted individuals that
were part of a 2009 population enhancement using material propagated
from the Nanny Point population. The Brown Bay Trail population has low
resilience due to high presence of feral ungulates, high insect
predation, and a declining population trend.
Reef Bay Trail (St. John, USVI)
The Reef Bay Trail locality is a relatively new population located
during a 2017 population assessment (Service 2017a, p. 11). A
population assessment in 2017 discovered seven wild individuals, 85
percent in flower and some individuals producing fruits. The Reef Bay
Trail population has moderately low resilience due to high presence of
feral ungulates that are causing an overall decline across all
populations (Roberts 2017, entire).
Base Hill (St. John, USVI)
The population at Base Hill consists of one natural individual (Ray
and Stanford 2005, p. 16). There have been no subsequent visits to this
population since 2005; thus, no further data on the status of this
individual are known. The current condition of this population is
unknown.
Brown Bay Ridge (St. John, USVI)
In 2017, one wild individual was discovered on top of a ridge
approximately 0.25 miles (mi) (0.40 kilometers (km)) from the Brown Bay
Trail population (Cecilia Rogers 2017, pers. comm.). The Brown Bay
Ridge population has moderately low resilience because, while there is
a high presence of feral ungulates in the area, the area harbors
suitable habitat and the single documented wild individual was a
juvenile plant, which indicates recruitment has occurred at this
location.
Sabbat Point (St. John, USVI)
This population was reported as a single natural individual in 2005
(Ray and Stanford 2005, p. 16). The individual was never relocated in a
subsequent site visit, and the site showed evidence of disturbance
based on the abundance of river tamarind (Leucaena leucocephala),
roving prickly pear cactus (Opuntia repens), and wild pineapple
(Bromelia pinguin) (Service 2017a, p. 4). This population is considered
extirpated.
Reef Bay Valley (St. John, USVI)
This population is on the southern coast of St. John, along the
shore near White Cliffs. In 2005, 6 wild and 60 introduced individuals
were reported at the Reef Bay site (Ray and Stanford 2005, p. 16).
Further assessments of this area were unsuccessful in detecting any
marron bacora (Service 2017a, p. 11). Thus, the best available
information indicates this population is extirpated, and no individuals
are known in its proximity.
Europa Ridge (St. John, USVI)
The Europa Ridge population was a single individual when documented
in the early 1990s (Acevedo-Rodriguez, P. 1996, p. 415). Based on the
latest habitat assessments by the Service, this population is likely
extirpated (Service 2017a, p. 11).
Sabbath Hill (Tortola, BVI)
In 2018, surveys on Tortola identified a plant morphologically
consistent with marron bacora, near Sabbath Hill. On a follow-up trip
to confirm marron bacora in the area, a population of approximately 46
to 48 individuals was identified with most plants described as small
and only about 7 as large. The Sabbath Hill population has low
resilience due to a high presence of feral ungulates and the location
of the population not being associated with any protected lands.
There is little evidence of sustained natural recruitment in any of
the known populations of marron bacora. The population structure at
Nanny Point and Johns Folly is characterized by the absence of
individuals smaller than 3.2 ft (1 m) high, with little evidence of
seedlings or juveniles (three for Nanny Point and one for Johns Folly)
(Service 2017a, p. 7). These populations consist primarily of
reproductive individuals, as 92 percent and 75 percent of the plants,
respectively, were recorded in flower during a recent survey (Service
2017a, p. 7). The Johns Folly population was composed of 4 natural
adult individuals (reproductive size individuals naturally occurring at
this site) or 36 percent of the total (11 plants) (Service 2017a, p.
9).
All eight extant populations are declining and have moderately low
to low resiliency; many populations are on the brink of extirpation.
The entire species consists of 324 known individuals, with 201 of those
plants located within a single population (Nanny Point).
Redundancy and Representation
The species is showing very low to no natural recruitment across
all populations. Only three populations have more than 18 individuals,
two populations have 18 individuals, and the three remaining
populations have 7 or fewer individuals. Most of the populations are
small and isolated with little to no connectivity. Marron bacora
currently shows overall low numbers of individuals, low numbers of
populations, and low numbers of individuals at each population site.
The overall resiliency, redundancy, and representation of this species
are low.
Future Conditions
As part of the SSA, we developed multiple future condition
scenarios to capture the range of uncertainties regarding future
threats and the projected responses by marron bacora. Our scenarios
included a status quo scenario, which incorporated the current risk
factors continuing on the same trajectory that they are on now. We also
evaluated two additional future scenarios, one that considered
increasing levels of risk factors resulting in elevated negative
effects on marron bacora populations. The other scenario considered
improved environmental and habitat conditions through conservation
actions including land management and invasive plant and animal
management. However, we determined that the current condition of marron
bacora and the projections for all scenarios are consistent with an
endangered species status (see Determination of Marron Bacora's
[[Page 36232]]
Status, below); we are not presenting the results of the future
scenarios in this rule. Please refer to the SSA report (Service 2020,
pp. 53-63) for the full analysis of future conditions and descriptions
of the associated scenarios.
Please refer to the proposed listing rule (85 FR 5216) and the SSA
report (Service 2020, entire) for a more detailed information regarding
the evaluation of the marron bacora's biological status, the influences
that may affect its continued existence, and the modeling efforts
undertaken to further inform our analysis.
Summary of Comments and Recommendations
In the proposed rule published on August 26, 2020 (85 FR 52516), we
requested that all interested parties submit written comments on the
proposal by October 26, 2020. We received eight comments, of which four
were substantive. We also contacted appropriate Federal (NPS) and
State/Territory (USVI Department of Planning and Natural Resources
(DPNR)) agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. We did
not receive any comments from NPS regarding the SSA report or the
proposed rule. The DPNR comments are summarized below. A newspaper
notice inviting general public comments was published in The Virgin
Islands Daily News on August 28, 2020. We did not receive any requests
for a public hearing. All substantive information provided during the
comment period has either been incorporated directly into the SSA
report or this final rule or is addressed below.
Peer Reviewer Comments
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from knowledgeable
individuals with scientific expertise that included familiarity with
the marron bacora and its habitat, biological needs, and threats.
During development of the SSA report, we reached out to six peer
reviewers and received responses from one. We reviewed all comments
received from the peer reviewer for substantive issues and new
information regarding the marron bacora. All comments were incorporated
into the SSA report prior to the proposed rule. The reviewer provided
editorial and technical comments that were generally supportive of our
approach; the commenter made suggestions and comments that strengthened
our analysis and improved the SSA report. Peer reviewer comments are
addressed in the following summary and were incorporated into the SSA
report and, accordingly, in this final rule as appropriate.
(1) Comment: One peer reviewer noted that the Service did not
consider pollinator loss as a threat to the species. Most Solanum spp.
require a specific type of bee for ``buzz'' pollination, where the
motion of vibrating bees facilitates pollen exchange. The peer reviewer
suggested pollinator limitation (or bee die-off) could be another cause
of marron bacora's rarity. The reviewer provided a reference regarding
morphology of the genus that facilitated pollination (Falc[atilde]o et
al. 2016, entire).
Response: We acknowledge declines in pollinators across the globe
due to a multitude of environmental stressors; however, fruit
production has been observed in wild populations and cultivated plants
indicative of successful pollination. The reference provided,
Falc[atilde]o et al. 2016, describes the reproductive morphology and
pollen release mechanisms in the congener, Solanum luridifuscescens.
Some of the information in the paper provides descriptions for Solanum
in general that support information in the SSA report, such as the lack
of nectaries and pollen as the only reward (Service 2020, p. 31). The
SSA report acknowledges observations by Service staff of abundant
activity of the native carpenter bees (Xylocopa mordax) visiting the
flowers of marron bacora consistent with a massive flowering and
fruiting event (Service 2017a, p. 7). At present, the island of St.
John no longer implements large-scale agriculture using pesticides,
which may contribute to the loss of pollinators. In addition, the
majority of the habitat on St. John is a forested landscape designated
as a National Park and managed by NPS. Therefore, the best available
science does not indicate pollinator loss is a current threat to the
species.
Territory Comments
(2) Comment: The USVI DPNR supported our decision that marron
bacora is in danger of extinction and highlighted the need to address
the possible adverse effects on the species' viability due to predation
by feral animals. The agency also provided comments on the proposed
critical habitat designation that acknowledge much of the proposed
critical habitat is located within protected lands currently managed by
NPS. However, the comment indicated that there are areas adjacent to
NPS lands zoned for development that fall within the proposed
designated critical habitat and recommended that the Service make every
effort to avoid including in the critical habitat designation any
developed areas where land is covered by buildings, pavement, or other
structures. The area identified by the agency also includes areas that
are not yet developed but are zoned for development under U.S. Virgin
Islands Code, title 29 ``Public Planning and Development,'' chapter 3
``Virgin Islands Zoning and Subdivision Law'' (see section 228 for all
uses).
Response: As described in the proposed critical habitat rule,
critical habitat does not include human made structures (such as
buildings, aqueducts, runways, roads, and other paved areas) or the
land on which they are located, so these features within designated
units are not considered critical habitat.
Regarding the adjacent areas that are zoned but not yet developed,
the DPNR did not provide specific information regarding how critical
habitat may impact those areas or how the benefits of exclusion
outweigh the benefits of inclusion. Therefore, in the absence of
supporting information about the benefits of exclusion, we determined
that these areas meet the definition of critical habitat and have no
basis to exclude those areas.
Public Comments
(3) Comment: One commenter stated that the proposed critical
habitat designation improperly characterized ``unoccupied habitat'' in
Nanny Point as ``occupied habitat.'' The commenter claimed the Service
proposed to designate areas that are not currently occupied by the
species without going through the analysis required by the Act and
Service regulations regarding the designation of unoccupied habitat.
The commenter further stated that the Service cannot designate these
private parcels and easements as ``unoccupied'' critical habitat
because they are not reasonably certain to contribute to the
conservation of the species, given the best available science in the
record regarding the plant's reproduction, recruitment, and dispersion.
Response: The best available science supports our conclusion that
the Nanny Point unit is occupied. It contains the largest known
population of marron bacora. Data from Nanny Point (2017, 2018, and
2019) show that individuals of marron bacora occur on both sides of the
access corridor (easements), and likely occur along the boundaries of
adjacent private parcels.
Our regulations at 50 CFR 424.02 define the ``geographical area
occupied by the species'' as an area that may generally be delineated
around species'
[[Page 36233]]
occurrences, as determined by the Secretary (i.e., range). For marron
bacora, we delineated the two units based on the species' occurrences
and contiguous suitable habitat that may support the species; the area
within the units contain one or more of the physical and biological
features that were identified as essential to the conservation of the
species. Additionally, consistent with the regulations at 50 CFR
424.12(d), when several habitats, each satisfying the requirements for
designation as critical habitat, are located in proximity to one
another, the Secretary may designate an inclusive area as critical
habitat. The unit in question contains multiple occurrences of marron
bacora that are in close proximity to one another and are connected by
continuous forested habitat. Thus, we are designating an inclusive area
as critical habitat. The species occurs within the boundaries of the
entire unit; therefore, the unit is occupied by marron bacora at the
time of listing.
We are designating critical habitat based on the best available
commercial and scientific information. As indicated in the proposed
rule, we based this critical habitat designation on the species'
occurrence data and a habitat suitability model (Palumbo et al. 2016,
p. 5; Service 2020, pp. 15-16, 28), which used elevation, slope, soil
association, and vegetation types as variables defining the habitat of
the species. The needs of the species and its habitat are described in
more detail in the SSA report (Service 2020, pp. 12-16). We revised the
boundaries of the critical habitat designation based on new elevation
data from a recently discovered marron bacora population at Reef Bay
Trail, and on the continuity of forested habitat. This approach is
consistent with the definition of ``geographical area occupied by the
species'' at 50 CFR 424.02.
(4) Comment: A landowner stated that a private parcel and an
associated private easement should be excluded from the South Unit
because the benefits of exclusion outweigh the benefits of inclusion
and the exclusion will not result in extinction of the species. The
commenter explained that the conservation efforts already undertaken by
the landowner, including ``captive propagation from seed and cutting,
population enhancement, translocation of plants, and subsequent
monitoring,'' have demonstrably improved and enhanced the survival of
the known marron bacora populations, particularly the Nanny Point
population, included in a conservation agreement. The commenter
indicated there is a reasonable expectation that the remaining
conservation management strategies and actions in the agreement will be
implemented and will continue to protect the Nanny Point population.
Response: We have taken into consideration the conservation efforts
by the landowner and conducted an exclusion analysis to determine if
the area described warrants exclusion from the designated critical
habitat. We found that the benefits of exclusion outweigh the benefits
of inclusion, and we have excluded this parcel from the final critical
habitat designation. Please see Private or Other Non-Federal
Conservation Plans or Agreements and Partnerships, below, for the
details and analysis.
Determination of Marron Bacora's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of endangered species
or threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) Overutilization for commercial, recreational,
scientific, or educational purposes; (C) Disease or predation; (D) The
inadequacy of existing regulatory mechanisms; or (E) Other natural or
manmade factors affecting its continued existence.
We have determined that the primary threats acting on marron bacora
are habitat destruction or modification by exotic mammal species (e.g.,
white-tailed deer, goats, pigs, and donkeys) and invasive plants and
exotic, plants (e.g., guinea grass) (Factor A); herbivory by nonnative,
feral ungulates and insect pests (Factor C); and the lack of natural
recruitment, absence of dispersers, fragmented distribution and small
population size, lack of genetic diversity, and climate change (Factor
E).
Status Throughout All of Its Range
After evaluating threats acting on the species and the species'
response to those threats, we found that the species is currently in
danger of extinction throughout its range.
Marron bacora is adapted for life in the dry forests of St. John,
USVI, and Tortola, BVI. These islands have endured landscape changes
over time and will continue to be affected by human visitation and
development. The largest extant population on St. John is within the
VINP boundaries and is protected from future development; however,
neighboring areas are vulnerable to development as the human population
increases. Depredation from ungulates, which occurs even in the VINP,
is largely responsible for the low levels of seedling recruitment that
have caused the lack of natural recruitment. The species is also
affected by insect pests along with habitat degradation by nonnative
plants and animals.
There are currently 11 known historical and current populations.
Three of these populations are considered extirpated, two are
represented by only a single individual (possibly functionally
extirpated), and five are represented by very low numbers of
individuals. Only the single population at Nanny Point has more than
100 individuals, and between 2010 and 2017, this population declined by
over half. Seedlings were discovered at this site, likely assisted by
release/reproduction due to opening of canopy/moist soil conditions
from the hurricanes, but those seedlings were being affected by
ungulate herbivory that was reducing survival. Despite having the
greatest number of individuals, Nanny Point is in danger of extirpation
due to little or no reproductive output, the continued presence of
nonnative mammals, and habitat degradation from recent hurricanes and
invasive plant species. Additionally, it has seen an almost 50 percent
reduction in the number of individuals over the last 10 years. Across
the entire range, the lack of evidence of reproduction/recruitment is
resulting in the continued decline of all populations. Reintroductions
to date have resulted in limited survival (28 percent) and have not
yielded any increase in reproductive success (either have not achieved
reproductive status or have not successfully reproduced). Resiliency
for all extant populations is low as are redundancy and representation.
There is very little evidence of natural recruitment, with recent
seedling evidence from only two populations. Due to the lack of
recruitment across all populations, the species is at risk of
extinction.
Further, the threats acting on the species are likely to continue
at the existing rate or increase without management of marron bacora
and the
[[Page 36234]]
identified threats, such as nonnative, invasive species. The species is
a narrow endemic and has suffered extirpation of populations across its
limited range; most remaining populations have only a single or few
individuals. The species has lost redundancy, and remaining populations
have low resiliency. The impacts from herbivory by nonnative species
have impaired the viability of marron bacora to the point of imminent
decline across the species' entire range. Despite efforts to propagate
the species and re-establish it in the wild, plants are not reproducing
offspring sufficiently to support adequately resilient populations.
Thus, after assessing the best available information, we conclude that
marron bacora is in danger of extinction throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that marron bacora is in danger of
extinction throughout all of its range, and accordingly, did not
undertake an analysis to determine whether there may be any significant
portion of its range. Because marron bacora warrants listing as
endangered throughout all of its range, our determination does not
conflict with the decision in Center for Biological Diversity v.
Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), because that decision
related to significant portion of the range analyses for species that
warrant listing as threatened, not endangered, throughout all of its
range.
Determination of Status
Our review of the best scientific and commercial data information
indicates that marron bacora meets the Act's definition of an
endangered species. Therefore, we are listing marron bacora as an
endangered species in accordance with sections 3(6) and 4(a)(1) of the
Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act calls for the Service to develop
and implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public. The recovery outline guides the immediate
implementation of urgent recovery actions and describes the process to
be used to develop a recovery plan. Revisions of the plan may be done
to address continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(<a href="https://www.fws.gov/endangered">https://www.fws.gov/endangered</a>), or from our Caribbean Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Once this species is listed (see DATES, above), funding for
recovery actions will be available from a variety of sources, including
Federal budgets, State programs, and cost share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the Territory of the
U.S. Virgin Islands will be eligible for Federal funds to implement
management actions that promote the protection or recovery of marron
bacora. Information on our grant programs that are available to aid
species recovery can be found at: <a href="https://www.fws.gov/grants">https://www.fws.gov/grants</a>.
Please let us know if you are interested in participating in
recovery efforts for this species. Additionally, we invite you to
submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2)
of the Act requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of any endangered or threatened species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require
conference, consultation, or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by NPS (Virgin Islands
National Park) and privately owned lands that may require a Federal
permit.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered plants.
The prohibitions
[[Page 36235]]
of section 9(a)(2) of the Act, codified at 50 CFR 17.61, make it
illegal for any person subject to the jurisdiction of the United States
to import or export; remove and reduce to possession from areas under
Federal jurisdiction; maliciously damage or destroy on any such area;
remove, cut, dig up, or damage or destroy on any other area in knowing
violation of any law or regulation of a State or in the course of an
violation of a State criminal trespass law; deliver, receive, carry,
transport, or ship in interstate or foreign commerce, by any means
whatsoever and in the course of commercial activity; or sell or offer
for sale in interstate or foreign commerce an endangered plant. Certain
exceptions apply to employees of the Service, the National Marine
Fisheries Service, other Federal land management agencies, and State
conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered plants under certain circumstances. Regulations
governing permit issuance are codified at 50 CFR 17.62. With regard to
endangered plants, a permit may be issued for scientific purposes or
for enhancing the propagation or survival of the species. There are
also certain statutory exemptions from the prohibitions, which are
found in section 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that will or will not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a listing on
proposed and ongoing activities within the range of the listed species.
Based on the best available information, the following actions are
unlikely to result in a violation of section 9, if these activities are
carried out in accordance with existing Federal and Territorial
regulations and permit requirements; this list is not comprehensive:
<bullet> Recreational use of existing trails and pathways.
<bullet> Routine maintenance of existing public roads, trails, and
pathways.
<bullet> Archeological activities that minimize impacts to native
species.
<bullet> Landscaping activities within residential areas that do
not extend to native vegetation.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable laws (this list is not
comprehensive):
<bullet> Modifying the habitat of the species on Federal lands
without authorization (e.g., unauthorized opening of trails within NPS
lands); and
<bullet> Removing, cutting, digging up, or damaging or destroying
of the species on any non-Federal lands in knowing violation of any law
or regulation of the Territory of the U.S. Virgin Islands or in the
course of any violation of the Territory of U.S. Virgin Islands'
criminal trespass law.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Caribbean
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
II. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals). Additionally, our regulations
at 50 CFR 424.02 define the word ``habitat'' as, for the purposes of
designating critical habitat only, the abiotic and biotic setting that
currently or periodically contains the resources and conditions
necessary to support one or more life processes of a species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas
[[Page 36236]]
outside the geographical area occupied by the species at the time it is
listed, upon a determination that such areas are essential for the
conservation of the species. The implementing regulations at 50 CFR
424.12(b)(2) further delineate unoccupied critical habitat by setting
out three specific parameters: (1) when designating critical habitat,
the Secretary will first evaluate areas occupied by the species; (2)
the Secretary will only consider unoccupied areas to be essential where
a critical habitat designation limited to geographical areas occupied
by the species would be inadequate to ensure the conservation of the
species; and (3) for an unoccupied area to be considered essential, the
Secretary must determine that there is a reasonable certainty both that
the area will contribute to the conservation of the species and that
the area contains one or more of those physical or biological features
essential to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act published in the
Federal Register on July 1, 1994 (59 FR 34271), the Information Quality
Act (section 515 of the Treasury and General Government Appropriations
Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our
associated Information Quality Guidelines provide criteria, establish
procedures, and provide guidance to ensure that our decisions are based
on the best scientific data available. They require our biologists, to
the extent consistent with the Act and with the use of the best
scientific data available, to use primary and original sources of
information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States (Territories) and counties; scientific status
surveys and studies; biological assessments; other unpublished
materials; or experts' opinions or personal knowledge.
As the regulatory definition of ``habitat'' reflects (50 CFR
424.02), habitat is dynamic, and species may move from one area to
another over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of this species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of a species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or a particular level of
nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
The specific physical or biological features required for marron
bacora were derived from available observations and current information
on the species' habitat, ecology, and life history as described below.
To identify the physical and biological needs of the species, we have
relied on current conditions at locations where marron bacora occurs.
In addition, available literature on the species' genetics,
reproductive biology, and habitat modeling were used (Stanford et al.
2013; Anderson et al. 2015; Palumbo et al. 2016).
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the marron bacora from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (Service 2020, entire),
[[Page 36237]]
which is available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-
R4-ES-2019-0050. We have determined that the following physical or
biological features are essential to the conservation of marron bacora:
(i) Native forest within the subtropical dry forest life zone in
St. John.
(ii) Dry scrubland, deciduous forest, and semi-deciduous forest
vegetation at elevations lower than 150 m (492 ft).
(iii) Continuous native forest cover with low abundance of exotic
plant species (e.g., Leucaena leucocephala and Megathyrsus maximus) and
that provides the availability of pollinators to secure cross-
pollination between populations.
(iv) Habitat quality evidenced by the presence of regional endemic
plant species, including Zanthoxylum thomasianum, Peperomia wheeleri,
Eugenia earhartii, Eugenia sessiliflora, Cordia rickseckeri, Croton
fishlockii, Malpighia woodburyana, Bastardiopsis eggersii, Machaonia
woodburyana, and Agave missionum.
(v) Open understory with appropriate microhabitat conditions,
including shaded conditions and moisture availability, to support seed
germination and seedling recruitment.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. All the designated units are occupied by the species at the
time of listing (i.e., are currently occupied) and have mixed ownership
of predominantly Federal lands (97 percent) and private lands (3
percent) (see Table 4, below).
The features essential to the conservation of marron bacora may
require special management considerations or protection to ameliorate
the following stressors: habitat modification and fragmentation
(development); erosion (from storm water runoff); feral ungulates
(predation); and invasive, exotic plants (habitat intrusion). Special
management considerations or protection may be required within critical
habitat areas to ameliorate these stressors, and include, but are not
limited to: (1) Protect and restore native forests to provide
connectivity between known populations and secure availability of
pollinators and dispersers; (2) reduce density of feral ungulates; (3)
remove and control invasive plants; and (4) avoid physical alterations
of habitat to secure microhabitat conditions.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not designating any areas
outside the geographical area occupied by the species because we have
not identified any unoccupied areas that meet the definition of
critical habitat. The critical habitat designation includes all
currently occupied areas within the historical range that have retained
the necessary physical or biological features to allow for the
maintenance and expansion of these existing populations. The occupied
areas are sufficient for the conservation of the species.
For areas within the geographic area occupied by the species at the
time of listing (i.e., areas that are currently occupied), we
delineated critical habitat unit boundaries as described below. The
primary sources of data used to define marron bacora critical habitat
include a habitat suitability model (by selecting areas identified as
containing moderate- and high-quality habitat for the species) (Palumbo
et al. 2016, entire), and validated by recent habitat assessments
throughout the species' range. The habitat suitability model included
elevation, slope, soil association, and vegetation types and identified
approximately 1,717.23 ac (694.94 ha) of high-quality habitat, 3,150.45
ac (1,274.94 ha) of moderate-quality habitat, 3,875.92 ac (1,568.53 ha)
of low-quality habitat, 3,319.16 ac (1,343.16 ha) of poor-quality
habitat, and 461.79 ac (186.88 ha) of unsuitable habitat (Palumbo et
al. 2016, p. 5) on St. John. When adding all hectares of high- and
moderate-quality habitat, approximately 32 percent of the land area of
VINP may be suitable habitat for marron bacora (Palumbo et al. 2016, p.
5). However, the latest discovered population of marron bacora on St.
John at Reef Bay Trail (Service 2017a, p. 11) occurs at elevations
higher than what was provided by the model results; thus, the amount of
suitable habitat for marron bacora at St. John may include areas higher
in elevation, indicating more suitable habitat than previously reported
(Palumbo et el. 2016, p. 5). Therefore, the boundaries were slightly
expanded to include habitat at higher elevations consistent with the
recently discovered population (Reef Bay Trail).
We analyzed recent satellite images to identify areas dominated by
native forest vegetation associated with known localities for the
species within St. John. Finally, we adjusted the elevation to 492 ft
(150 m), as the latest discovered population of marron bacora was at an
elevation higher than the records available to Palumbo et al. (2016).
We further cropped the units using the contour of the coastline,
excluding wetland areas (e.g., ponds) and developed areas. Critical
habitat units were then mapped using ArcGIS Desktop version 10.6.1, a
geographic information system (GIS) program. We identified two units,
North and South, falling within these parameters.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features necessary for marron bacora. The scale of the maps
we prepared under the parameters for publication within the Code of
Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this rule have been excluded by text in
the rule and are not designated as critical habitat. Therefore, a
Federal action involving these lands will not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action will affect the
physical or biological features in the adjacent critical habitat.
We are designating as critical habitat areas that we have
determined are occupied at the time of listing (i.e., are currently
occupied), that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species, and that may require special management considerations or
protections. The two units, South and North, each contain the physical
or biological features that support multiple life-history processes for
marron bacora.
Units are designated based on one or more of the physical or
biological features being present to support marron bacora's life-
history processes. All units contain all of the identified physical or
biological features and support multiple life-history processes.
The critical habitat designation is defined by the map or maps, as
[[Page 36238]]
modified by any accompanying regulatory text, presented at the end of
this document under Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. We will make the coordinates or plot
points or both on which each map is based available to the public on
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R4-ES-2019-0050, or on
our website, <a href="https://www.fws.gov/office/caribbean-ecological-services/library">https://www.fws.gov/office/caribbean-ecological-services/library</a>.
Final Critical Habitat Designation
We are designating two units as critical habitat for marron bacora.
The critical habitat areas we describe below constitute our current
best assessment of areas that meet the definition of critical habitat
for marron bacora. The two units we are designating as critical habitat
are: (1) South and (2) North. Table 4 shows the critical habitat units,
the land ownership, and the approximate area of each unit. Both units
are occupied at the time of listing.
Table 4--Critical Habitat Units for Marron Bacora With Ownership, Area, and Occupied Status
[Area estimates reflect all land within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
Size of unit in acres
Critical habitat unit Land ownership by type (hectares) * Occupied?
----------------------------------------------------------------------------------------------------------------
1. South............................ Federal (NPS) Private.. 1,634 ac (661 ha), 70 Yes.
ac (28 ha), Unit
total: 1,704 ac (690
ha).
2. North............................ Federal (NPS).......... 844 ac (341 ha)........ Yes.
---------------------------------------------------------------------------
Total........................... ....................... 2,548 ac (1,031 ha)....
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum exactly due to rounding.
We present brief descriptions of both units, and reasons why they
meet the definition of critical habitat for marron bacora, below.
Unit 1: South
Unit 1 consists of 1,704 ac (690 ha). Approximately 1,634 ac (661
ha) are managed by NPS within the VINP, and approximately 70 ac (28 ha)
are in private ownership adjacent to the east corner of VINP. This unit
is within the geographical area occupied by marron bacora at the time
of the listing. This unit harbors the largest population and core of
known individuals of marron bacora in St. John, USVI. It contains all
of the identified physical or biological features essential to the
conservation of marron bacora. We have excluded 1.33 ac (0.54 ha) acres
from this unit (see Exclusions Based on Other Relevant Impacts, below).
Ongoing and potential threats or activities that occur in this unit
are urban development, trampling and predation by feral ungulates, and
forest management actions (e.g., conservation/restoration, recreation,
trail maintenance, roads, control of feral mammals, and fire management
control). Special management considerations or protection measures to
reduce or alleviate the threats may include minimizing or avoiding
habitat modification or fragmentation from urban and recreational
development, protecting and restoring native forests to provide
connectivity between known populations and to secure availability of
pollinators and dispersers, reducing the density of feral ungulates,
and removing and controlling invasive plants.
Unit 2: North
Unit 2 consists of 844 ac (341 ha) of federally owned land managed
by NPS within the VINP. This unit is within the geographical area
occupied by marron bacora at the time of listing and harbors the
habitat structure that supports marron bacora's viability. This unit
contains all of the identified physical or biological features
essential to the conservation of marron bacora.
Ongoing and potential threats or activities that occur in this unit
are roaming feral mammals and forest management actions (e.g.,
conservation/restoration, recreation, trails, roads, control of feral
mammals, and fire management control). Special management
considerations or protection measures to reduce or alleviate the
threats may include protecting and restoring native forests to provide
connectivity between known populations and to secure availability of
pollinators and dispersers, reducing density of feral ungulates,
removing and controlling invasive plants, and avoiding physical
modification of habitat to secure microhabitat conditions.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must consult
with us. Examples of actions that are subject to the section 7
consultation process are actions on State, Tribal, local, or private
lands that require a Federal permit (such as a permit from the U.S.
Army Corps of Engineers under section 404 of the Clean Water Act (33
U.S.C. 1251 et seq.) or a permit from the Service under section 10 of
the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2), is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent
[[Page 36239]]
alternatives to the project, if any are identifiable, that would avoid
the likelihood of jeopardy and/or destruction or adverse modification
of critical habitat. We define ``reasonable and prudent alternatives''
(at 50 CFR 402.02) as alternative actions identified during
consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (1) if the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
In such situations, Federal agencies may need to request
reinitiation of consultation with us, but the regulations also specify
some exceptions to the requirement to reinitiate consultation on
specific land management plans after subsequently listing a new species
or designating new critical habitat. See the regulations for a
description of those exceptions.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate 7(a)(2)
of the Act by destroying or adversely modifying such habitat, or that
may be affected by such designation.
Activities that the Service may, during a consultation under
section 7(a)(2) of the Act, consider likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would significantly alter the structure of the
native forest. Such activities could include, but are not limited to,
habitat fragmentation and development (e.g., from recreational
facilities and activities like trails, hiking, bicycling, using all-
terrain vehicles (ATVs); herbicide and pesticide use on private lands;
and urban and tourist developments). In addition, habitat modification
may promote habitat encroachment by invasive plant species, thus
promoting favorable conditions for human-induced fires. These
activities could degrade the habitat necessary for marron bacora
populations to expand.
(2) Actions that would increase habitat modification. Such
activities could include, but are not limited to, predation and erosion
caused by feral animals, and risk of human-induced fires. These
activities could significantly reduce the species' recruitment and
could exacerbate the vulnerability of the species to stochastic events
(e.g., hurricanes).
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation. There are no
DoD lands with a completed INRMP within the final critical habitat
designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making the determination to exclude a particular area, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor.
On December 18, 2020, we published a final rule in the Federal
Register (85 FR 82376) revising portions of our regulations pertaining
to exclusions of critical habitat. The final regulations became
effective on January 19, 2021, and apply to critical habitat rules for
which a proposed rule was published after January 19, 2021.
Consequently, these new regulations do not apply to this final rule.
We describe below the process that we undertook for taking into
consideration each category of impacts and our analyses of the relevant
impacts.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive due to the
protection from destruction of adverse modification as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation or in the continuation, strengthening, or encouragement
of partnerships. In the case of marron bacora, the benefits of critical
habitat include public awareness
[[Page 36240]]
of the presence of the species and the importance of habitat
protection, and, where a Federal nexus exists, increased habitat
protection for marron bacora due to the protection from destruction or
adverse modification of critical habitat. Additionally, continued
implementation of an ongoing management plan that provides equal to or
more conservation than a critical habitat designation would reduce the
benefits of including that specific area in the critical habitat
designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical or biological features;
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Exclusions Based on Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
our economic analysis of the critical habitat designation and related
factors (IEc 2019, entire). The analysis, dated October 15, 2019 (IEc
2019, entire), was made available for public review from August 26,
2020, through October 26, 2020 (85 FR 52516; August 26, 2020). The
economic analysis addressed probable economic impacts of critical
habitat designation for marron bacora. We did not receive any
additional information on economic impacts during the public comment
period to inform whether any specific areas should be excluded from the
final critical habitat designation under authority of section 4(b)(2)
and our implementing regulations at 50 CFR 424.19. The IEM and economic
screening analysis with supporting documents may be found on <a href="https://www.regulations.gov">https://www.regulations.gov</a> in Docket No. FWS-R4-ES-2019-0050.
We considered the economic impacts of the critical habitat
designation. The Secretary is not exercising her discretion to exclude
any areas from this designation of critical habitat for the marron
bacora based on economic impacts.
Exclusions Based on Impacts to National Security and Homeland Security
In preparing this final rule, we have determined that there are no
lands within the critical habitat designation for marron bacora that
are owned or managed by the DoD or Department of Homeland Security;
therefore, we anticipate no impact on national security. Additionally,
we did not receive any information through the public comment period on
the impacts of the proposed designation on national security or
homeland security that would support excluding any specific areas from
this final critical habitat designation under authority of section
4(b)(2) and our implementing regulations at 50 CFR 424.19.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether there are
permitted conservation plans covering the species in the area such as
HCPs, safe harbor agreements, or candidate conservation agreements with
assurances (CCAAs), or whether there are non-permitted conservation
agreements and partnerships that would be encouraged by designation of,
or exclusion from, critical habitat. In addition, we look at the
existence of Tribal conservation plans and partnerships and consider
the government-to-government relationship of the United States with
Tribal entities. We also consider any social impacts that might occur
because of the designation.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive due to the
protection from destruction or adverse modification as a result of
actions with a Federal nexus, the educational benefits of mapping
essential habitat for recovery of the listed species, and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation, or in the continuation, strengthening, or
encouragement of partnerships. In preparing this final rule, we
determined that there are currently no HCPs or other management plans
for the marron bacora and the final designation does not include any
Tribal lands or trust resources. Therefore, we anticipate no impacts on
Tribal lands, partnerships, or HCPs from this final critical habitat
designation.
In the paragraphs below, we provide a detailed balancing analysis
of the areas we evaluated for exclusion from critical habitat under
section 4(b)(2) of the Act.
Private or Other Non-Federal Conservation Plans or Agreements and
Partnerships
During the development of this final designation, we considered
additional information we received through the public comment period
regarding other relevant impacts to determine whether any specific
areas should be excluded from this final critical habitat designation
under authority of section 4(b)(2) and our implementing regulations at
50 CFR 424.19. As described above in Summary of Comments and
Recommendations, we received one request to exclude an area from the
final critical habitat designation that provided sufficient information
to conduct an exclusion analysis of the area.
Based on the information provided by entities seeking exclusion, as
well as additional public comments we received, and the best scientific
data available, we evaluated whether certain lands in the proposed
critical habitat (South Unit) are appropriate for exclusion from this
final designation under section 4(b)(2) of the Act. If the analysis
indicates that the benefits of excluding lands from the final
designation outweigh the benefits of designating those lands as
critical habitat, then the Secretary may exercise her discretion to
exclude the lands from the final designation. In the paragraphs below,
we provide a detailed analysis of whether the benefits of excluding
this area outweigh the benefits of including it under section 4(b)(2)
of the Act.
[[Page 36241]]
South Unit
The subject area is a 1.33-ac (0.54-ha) private parcel and easement
extending onto NPS lands at Nanny Point for access, parking, fencing,
and utilities corridors. The parcel of land includes use restrictions,
which ensure that 79 percent of the land will remain forested with
native vegetation. The landowner has implemented conservation efforts,
including captive propagation from seed and cutting, population
enhancement, translocation of plants, and subsequent monitoring, and
has demonstrably improved and enhanced the survival of the Nanny Point
population. As part of the acquisition of this parcel, the landowner
also negotiated a separate purchase and donation of an additional
parcel to NPS of approximately 5.36 ac (2.17 ha) and the above
referenced easements. Additionally, further land use covenants and
restrictions were imposed on adjacent private parcels, covering
approximately 15 ac (6.1 ha) of land surrounding the marron bacora
population at Nanny Point. The restrictions limit the development of
these parcels and ensure the habitat will remain at least 75 percent
forested. Through the years, the private landowner has demonstrated
commitment to the conservation of marron bacora through efforts such as
propagating the species, providing us with information about the
species, and ongoing conservation efforts such as fencing to exclude
feral mammals from the Nanny Point population.
Benefits of Inclusion--1.33-ac (0.54-ha) parcel: The principal
benefit of including an area in critical habitat designation is the
requirement of Federal agencies to ensure that actions that they fund,
authorize, or carry out are not likely to result in the destruction or
adverse modification of any designated critical habitat, which is the
regulatory standard of section 7(a)(2) of the Act under which
consultation is completed.Federal agencies must consult with the
Service on actions that may affect a listed species and refrain from
actions that are likely to jeopardize the continued existence of such
species.The analysis of effects to critical habitat is a separate and
different analysis from that of the effects to the species.Thus,
critical habitat designation may provide greater benefits to the
recovery of a species than listing would alone.
Accordingly, a critical habitat designation may provide a
regulatory benefit for marron bacoraon the 1.33-ac (0.54-ha) private
parcel when there is a Federal nexus present for a project that might
adversely modify critical habitat. However, as stated above, adverse
modification considers whether implementation of a proposed Federal
action directly or indirectly alters the designated critical habitat in
a way that appreciably diminishes the value of the critical habitat as
a whole. Given the small size of the area and existing land use
restrictions, which ensure 79 percent of the area will remain suitable
habitat for marron bacora, even if an action were proposed that had a
Federal nexus, it is highly unlikely that such an action could affect
the area in a way that would adversely modify it. Accordingly, the
benefit of inclusion of this parcel is limited.
As mentioned previously, the landowner has a proven track record of
implementing conservation actions for marron bacora, which further
reduces the benefits of inclusion of this parcel in critical habitat.
These conservation actions provide a greater benefit to the species
than a designation of critical habitat because the landowner's actions
include implementing affirmative conservation actions, including
propagation, planting, and monitoring activities, as well as exclusion
of feral animals. Therefore, the existing conservation activities on
this parcel will provide greater benefit than the regulatory
designation of critical habitat, which requires only the avoidance of
adverse modification and does not require implementation of the types
of conservation activities that are currently being conducted at this
site.
Another potential benefit of including lands in a critical habitat
designation is that doing so raises the awareness of landowners, State
and local governments, and the public regarding the potential
conservation value of an area. This increased public awareness of the
importance of areas to marron bacora can help to focus attention of
those areas that are of high conservation value. However, we find that
the landowner's track record of implemented conservation actions for
marron bacora demonstrate awareness of the conservation value of the
area, and the benefits of inclusion of this parcel in critical habitat
are significantly reduced. Additionally, the inclusion of the larger
amount of adjacent NPS lands within critical habitat will provide
sufficient opportunity for us to raise public awareness of the
imperiled status of the marron bacora for this area generally.
Benefits of Exclusion--1.33-ac (0.54-ha) parcel: The benefits of
excluding the 1.33 ac (0.54 ha) of land from the designation of
critical habitat are substantial. The parcel will continue to provide
conservation to the species by contributing to educational benefits and
public awareness through the following ways: (1) Continuing and
strengthening of our effective working relationship with private
landowners within the Nanny Point population to promote voluntary,
proactive conservation and recovery of the marron bacora and its
habitat; and (2) fostering future collaboration with private parties
for other federally listed and sensitive species.
In the case here, the substantial benefits of excluding the 1.33-ac
(0.54-ha) private parcel include the recognition of the important role
of voluntary conservation actions in the conservation of marron bacora,
facilitating cooperation with neighboring landowners, and acknowledging
the good faith efforts on their part to date in conserving marron
bacora. The landowner of the 1.33-ac (0.54-ha) parcel has implemented
and collaborated on conservation efforts, including captive propagation
from seed and cutting, population enhancement, translocation of plants,
and subsequent monitoring. These efforts have demonstrably improved and
enhanced the survival of the Nanny Point population. Although the
landowner is likely to continue to collaborate with us even if we do
not exclude the private parcel and associated easements from
designation, recognizing the collaborative relationship with the
private landowner can create a substantial incentive for other
landowners interested in voluntarily conserving marron bacora and other
listed or unlisted species in need of conservation but might be
concerned that their efforts might result in additional future
regulation. Because we value the voluntary and collaborative
conservation efforts that have occurred to date and that likely will
continue, we place great weight on the maintenance of this conservation
partnership. Thus, excluding this area from the critical habitat
designation will maintain the valuable collaborative relationship with
the landowner of the parcel and foster partnerships with other
landowners within the range of marron bacora. Additionally, the
exclusion of this parcel from critical habitat designation may also
serve as a model for the advantages of voluntary and proactive
conservation efforts, thereby fostering future cooperative
relationships with non-Federal parties for the benefit of other
endangered or threatened species. For these reasons, we consider the
positive effect of excluding the 1.33-ac (0.54-ha) parcel from critical
habitat to be a significant benefit.
[[Page 36242]]
Benefits of Exclusion Outweigh the Benefits of Inclusion--1.33-ac
(0.54-ha) parcel: The primary benefit of including this parcel as
critical habitat for marron bacora is the regulatory requirement for
Federal agencies to consult with us under section 7 of the Act to
ensure actions they carry out, authorize, or fund do not adversely
modify designated critical habitat. The additional regulatory benefits
of including these lands as critical habitat are limited due to the
small size of the parcel and long-term protection of the parcel
conferred by existing land use restrictions and covenants. Furthermore,
these lands are occupied by marron bacora, and we anticipate that if a
Federal nexus exists and triggers the need for section 7 consultation,
there will be no difference between conservation recommendations to
avoid jeopardy and conservation recommendations to avoid adverse
modification in occupied areas of critical habitat. The benefits of
including this parcel in critical habitat are reduced due to the prior
and ongoing conservation actions on this parcel, which provide a
greater benefit than the regulatory designation of critical habitat.
Another benefit of including this parcel in critical habitat is the
opportunity to educate the landowner and the public regarding potential
conservation value of the area. However, we have determined that the
educational benefits of a designation of critical habitat are minimal
due to the prior and ongoing conservation activities on this parcel and
the greater relative contribution that adjacent NPS lands provide for
educational opportunities.
In contrast, the benefits of excluding this parcel are significant
and greater than inclusion for the following reasons. Because voluntary
conservation efforts for the benefit of listed species on non-Federal
lands are so valuable, we consider the maintenance and encouragement of
conservation partnerships to reduce or mitigate negative effects on the
species caused by activities on or adjacent to the area covered by a
plan. Including the parcel could undermine the collaborative and
valuable partnership with the private landowner, as the landowner has
worked with us in good faith to further the conservation of the
species. Given concerns from the landowner about added regulation
imposed by critical habitat designation, inclusion of the parcel may be
perceived as lack of good faith on the part of the Service and a lack
of appreciation for the landowner's efforts towards conservation.
Excluding the area from critical habitat, on the other hand, recognizes
and will strengthen the collaborative partnership and aid in fostering
future cooperative relationships with other parties for the benefit of
marron bacora. Furthermore, excluding the 1.33-ac (0.54-ha) parcel will
demonstrate the significant advantages of proactive, voluntary efforts
for other imperiled species by providing positive incentives and
removing real or perceived disincentives for landowners who might be
considering implementing conservation activities. Thus, we find the
partnership benefits are significant and outweigh the small potential
regulatory benefits of including the land in the final critical habitat
designation.
Therefore, for the reasons stated above, the Secretary has
determined that the benefits of excluding the 1.33-ac (0.54-ha) parcel
outweigh the benefits of including this area in a designation of
critical habitat.
Exclusion Will Not Result in Extinction of the Species--1.33-ac
(0.54-ha) parcel: We determined that the exclusion of 1.33 ac (0.54 ha)
of land within the boundaries of the South Unit will not result in
extinction of the taxon. The small size of the parcel and the long-term
protection conferred by the land use restrictions and covenants provide
assurances that marron bacora will not go extinct as a result of
excluding the area from the critical habitat designation. Furthermore,
for any projects having a Federal nexus and potentially affecting the
marron bacora, the jeopardy standard of the Act will provide a level of
assurance that this species will not go extinct as a result of
excluding this parcel from the critical habitat designation.
Summary of Exclusions
As discussed above, based on the information provided by a
landowner seeking exclusion, we evaluated whether certain lands in the
proposed critical habitat were appropriate for exclusion from this
final designation pursuant to section 4(b)(2) of the Act. As displayed
below in Table 5, we are excluding the following area from the critical
habitat designation for the marron bacora: 1.33 ac (0.54 ha) of land
within the boundaries of Unit 1 (South Unit). The excluded area falls
within State Concordia in southeastern St. John, in an area known as
Nanny Point and located in the proximity of the biggest know population
of marron bacora in lands recently donated to NPS.
Table 5--Areas Excluded From Critical Habitat Designation by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of Area excluded from critical
Unit Specific area critical habitat, in habitat, in acres (hectares)
acres (hectares)
----------------------------------------------------------------------------------------------------------------
Unit 1............................ South Unit, St. 1,704 ac (690 ha)... 1.33 ac (0.54 ha).
John, U.S. Virgin
Islands.
----------------------------------------------------------------------------------------------------------------
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget will review
all significant rules. The Office of Information and Regulatory Affairs
has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory
[[Page 36243]]
Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.),
whenever an agency is required to publish a notice of rulemaking for
any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effects of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a certification statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies will be directly
regulated by this critical habitat designation. There is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated. Moreover, Federal agencies are not small entities.
Therefore, because no small entities will be directly regulated by this
rulemaking, we certify that this critical habitat designation will not
have a significant economic impact on a substantial number of small
entities.
In summary, we have considered whether this designation will result
in a significant economic impact on a substantial number of small
entities. For the above reasons and based on currently available
information, we certify that this critical habitat designation will not
have a significant economic impact on a substantial number of small
business entities. Therefore, a regulatory flexibility analysis is not
required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that this
designation of critical habitat will significantly affect energy
supplies, distribution, or use due to the absence of any energy supply
or distribution lines in the critical habitat designation. Therefore,
this action is not a significant energy action, and no Statement of
Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because the lands designated as critical
habitat are primarily Federal lands (97 percent), with a small amount
of private land (3 percent). Small governments will be affected only to
the extent that any
[[Page 36244]]
programs involving Federal funds, permits, or other authorized
activities must ensure that their actions would not adversely affect
the designated critical habitat. Therefore, a Small Government Agency
Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for marron bacora in a takings implications assessment. The Act
does not authorize the Service to regulate private actions on private
lands or confiscate private property as a result of critical habitat
designation. Designation of critical habitat does not affect land
ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
designation of critical habitat for marron bacora, and it concludes
that this designation of critical habitat does not pose significant
takings implications for lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this final rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate Territorial resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, this rule does not have
substantial direct effects either on the States or Territory, or on the
relationship between the Federal Government and the Territory, or on
the distribution of powers and responsibilities among the various
levels of government. The designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist Territory and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where Territory and local governments require approval or
authorization from a Federal agency for actions that may affect
critical habitat, consultation under section 7(a)(2) of the Act will be
required. While non-Federal entities that receive Federal funding,
assistance, or permits, or that otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this rule
identifies the elements of physical or biological features essential to
the conservation of the species. The areas of designated critical
habitat are presented on maps, and the rule provides several options
for the interested public to obtain more detailed location information,
if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations
adopted pursuant to section 4(a) of the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This position was upheld by the U.S.
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that no Tribal
lands fall within the range of the marron bacora or the boundaries of
the designated critical habitat, so no Tribal lands will be affected by
the listing or critical habitat designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> in Docket No. FWS-R4-ES-
2019-0050 and upon mailed request to the Caribbean Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this rule are the staff members of the Fish
and Wildlife Service's Caribbean Ecological Services Field Office and
Species Assessment Team.
[[Page 36245]]
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 STAT. 3500; unless otherwise noted.
0
2. Amend Sec. 17.12, in paragraph (h), by adding an entry for
``Solanum conocarpum'' to the List of Endangered and Threatened Plants
in alphabetical order under FLOWERING PLANTS to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Scientific name Common name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Solanum conocarpum............... Marron bacora....... Wherever found...... E 87 FR [Insert
Federal Register
page where the
document begins],
6/16/2022; 50 CFR
17.96(a).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.96, in paragraph (a), by adding an entry for ``Family
Solanaceae: Solanum conocarpum (marron bacora)'' in alphabetical order
to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) * * *
Family Solanaceae: Solanum conocarpum (marron bacora)
(1) Critical habitat units are depicted for St. John, U.S. Virgin
Islands, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of marron bacora consist of the following
components:
(i) Native forest within the subtropical dry forest life zone in
St. John.
(ii) Dry scrubland, deciduous forest, and semi-deciduous forest
vegetation at elevations lower than 150 meters (492 feet).
(iii) Continuous native forest cover with low abundance of exotic
plant species (e.g., Leucaena leucocephala and Megathyrsus maximus) and
that provides the availability of pollinators to secure cross-
pollination between populations.
(iv) Habitat quality evidenced by the presence of regional endemic
plant species, including Zanthoxylum thomasianum, Peperomia wheeleri,
Eugenia earhartii, Eugenia sessiliflora, Cordia rickseckeri, Croton
fishlockii, Malpighia woodburyana, Bastardiopsis eggersii, Machaonia
woodburyana, and Agave missionum.
(v) Open understory with appropriate microhabitat conditions,
including shaded conditions and moisture availability, to support seed
germination and seedling recruitment.
(3) Critical habitat does not include human-made structures (such
as buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
July 18, 2022.
(4) Data layers defining map units were created using ArcMap
version 10.6.1 (Environmental Systems Research Institute, Inc.), a
Geographic Information Systems program on a base of USA Topo Map and
the program world imagery. Critical habitat units were then mapped
using NAD 1983, State Plane Puerto Rico and Virgin Islands FIPS 5200
coordinates. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at the Service's internet site at
<a href="https://www.fws.gov/office/caribbean-ecological-services/library">https://www.fws.gov/office/caribbean-ecological-services/library</a>, at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R4-ES-2019-0050, and at
the field office responsible for this designation. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
(5) Note: Index map follows:
[[Page 36246]]
[GRAPHIC] [TIFF OMITTED] TR16JN22.000
(6) Unit 1: South Unit, St. John, U.S. Virgin Islands.
(i) Unit 1 consists of 1,704 acres (ac) (690 hectares (ha)) in
estates Rustenberg & Adventure, Sieben, Mollendal & Little Reef Bay,
Hope, Reef Bay, Lameshur Complex, Mandal, Concordia A, Concordia B, St.
Quaco & Zimmerman, Hard Labor, Johns Folly and Friis. Lands are
composed of 1,634 ac (661 ha) of Federal lands managed by the U.S.
National Park Service and 70 ac (28 ha) of privately owned lands.
(ii) Map of Unit 1 follows:
[[Page 36247]]
[GRAPHIC] [TIFF OMITTED] TR16JN22.001
(7) Unit 2: North Unit, St. John, U.S. Virgin Islands.
(i) Unit 2 consists of 844 ac (341 ha) in estates Leinster Bay,
Browns Bay, Zootenvaal, Hermitage, Mt. Pleasant and Retreat, Haulover,
and Turner Point. The unit is composed entirely of Federal lands
managed by the U.S. National Park Service.
(ii) Map of Unit 2 follows:
[GRAPHIC] [TIFF OMITTED] TR16JN22.002
[[Page 36248]]
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-12944 Filed 6-15-22; 8:45 am]
BILLING CODE 4333-15-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on June 16, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.