81 FR 90762 - Endangered and Threatened Wildlife and Plants; Removing the Black-Capped Vireo From the Federal List of Endangered and Threatened Wildlife

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Federal Register Volume 81, Issue 241 (December 15, 2016)

Page Range		90762-90771
FR Document		2016-29547

Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), propose to remove the black-capped vireo (Vireo atricapilla) from the Federal List of Endangered and Threatened Wildlife (List) due to recovery (``delist''). This determination is based on a thorough review of the best available scientific and commercial information, which indicates that the threats to this species have been eliminated or reduced to the point that the species has recovered and no longer meets the definition of endangered or threatened under the Act. This document also serves as the 12-month finding on a petition to reclassify this species from endangered to threatened on the List.

Federal Register, Volume 81 Issue 241 (Thursday, December 15, 2016)

[Federal Register Volume 81, Number 241 (Thursday, December 15, 2016)]
[Proposed Rules]
[Pages 90762-90771]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-29547]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2016--0110; FXES11130900000 178 FF09E42000]
RIN 1018-BB79

Endangered and Threatened Wildlife and Plants; Removing the
Black-Capped Vireo From the Federal List of Endangered and Threatened
Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and 12-month petition finding; request for
comments.

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SUMMARY: Under the authority of the Endangered Species Act of 1973, as
amended (Act), we, the U.S. Fish and Wildlife Service (Service),
propose to remove the black-capped vireo (Vireo atricapilla) from the
Federal List of Endangered and Threatened Wildlife (List) due to
recovery (``delist''). This determination is based on a thorough review
of the best available scientific and commercial information, which
indicates that the threats to this species have been eliminated or
reduced to the point that the species has recovered and no longer meets
the definition of endangered or threatened under the Act. This document
also serves as the 12-month finding on a petition to reclassify this
species from endangered to threatened on the List.

DATES: We will accept comments received or postmarked on or before
February 13, 2017. Please note that if you are using the Federal
eRulemaking Portal (see ADDRESSES), the deadline for submitting an
electronic comment is 11:59 p.m. Eastern Time on this date. We must
receive requests for public hearings, in writing, at the address shown
in FOR FURTHER INFORMATION CONTACT by January 30, 2017.

ADDRESSES: Written comments: You may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2016-0110,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, click on the
Proposed Rules link to locate this document. You may submit a comment
by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R2-ES-2016-0110, U.S. Fish and Wildlife
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments, below, for more information).
Copies of Documents: This proposed rule and supporting documents
are available on http://www.regulations.gov. In addition, the
supporting file for this proposed rule will be available for public
inspection, by appointment, during normal business hours, at the
Arlington Ecological Services Field Office, 2005 NE Green Oaks Blvd.,
Arlington, TX 76006; telephone 817-277-1100.

FOR FURTHER INFORMATION CONTACT: Debra Bills, Field Supervisor, U.S.
Fish and Wildlife Service, Arlington Ecological Services Field Office,
2005 NE Green Oaks Blvd., Suite 140, Arlington, TX 76006; telephone
817-277-1100; or facsimile 817-277-1129. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Requested

Public Comments

We want any final rule resulting from this proposal to be as
accurate and effective as possible. Therefore, we invite tribal and
governmental agencies, the scientific community, industry, and other
interested parties to submit comments or recommendations concerning any
aspect of this proposed rule. Comments should be as specific as
possible.
To issue a final rule to implement this proposed action, we will
take into consideration all comments and any additional information we
receive. Such communications may lead to a final rule that differs from
this proposal. All comments, including commenters' names and addresses,
if provided to us, will become part of the supporting record.
We are specifically requesting comments on:
(1) New information on the historical and current status, range,
distribution, and population size of the black-capped vireo, including
the locations of any additional populations.
(2) New information on the known and potential threats to the
black-capped vireo.

[[Page 90763]]

(3) New information regarding the life history, ecology, and
habitat use of the black-capped vireo.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C.
1531 et seq.) directs that determinations as to whether any species is
an endangered or threatened species must be made ``solely on the basis
of the best scientific and commercial data available.''
You may submit your comments and materials concerning the proposed
rule by one of the methods listed in ADDRESSES. Comments must be
submitted to http://www.regulations.gov before 11:59 p.m. (Eastern
Time) on the date specified in DATES. We will not consider hand-
delivered comments that we do not receive, or mailed comments that are
not postmarked, by the date specified in DATES.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If you provide
personal identifying information in your comment, you may request at
the top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours at the U.S. Fish and Wildlife
Service, Arlington, Texas, Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).

Public Hearing

Section 4(b)(5)(E) of the Act provides for one or more public
hearings on this proposed rule, if requested. We must receive requests
for public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by the date shown in DATES. We will schedule public
hearings on this proposal, if any are requested, and places of those
hearings, as well as how to obtain reasonable accommodations, in the
Federal Register at least 15 days before the first hearing.

Peer Review

In accordance with our policy, ``Notice of Interagency Cooperative
Policy for Peer Review in Endangered Species Act Activities,'' which
was published on July 1, 1994 (59 FR 34270), we solicited the expert
opinion of at least three appropriate independent specialists regarding
scientific data and interpretations contained in the Species Status
Assessment Report (SSA report) (Service 2016; available at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0110) supporting
this proposed rule. The purpose of such review is to ensure that our
decisions are based on scientifically sound data, assumptions, and
analysis. The peer reviewers had no significant objection to the
analysis provided in the SSA report. In general, the peer-review
comments were largely minor (editorial) or easily addressed.
Substantive comments were specifically addressed, and did not involve
changes to the viability analysis of the SSA report.

Background

Section 4(b)(3)(B) of the Act requires that, for any petition to
revise the Federal Lists of Endangered and Threatened Wildlife and
Plants that contains substantial scientific or commercial information
that reclassifying a species may be warranted, we make a finding within
12 months of the date of receipt of the petition (``12-month Finding).
In this finding, we determine whether the petitioned action is: (1) Not
warranted, (2) warranted, or (3) warranted, but immediate proposal of a
regulation implementing the petitioned action is precluded by other
pending proposals to determine whether species are endangered or
threatened, and expeditious progress is being made to add or remove
qualified species from the Federal Lists of Endangered and Threatened
Wildlife and Plants. We must publish these 12-month findings in the
Federal Register.
This document represents:
Our 12-month warranted finding on a July 16, 2012,
petition to reclassify the black-capped vireo from endangered to
threatened (``downlist'');
Our determination that the black-capped vireo no longer
meets the definition of endangered or threatened under the Act; and
Our proposed rule to remove the black-capped vireo from
the Federal List of Endangered and Threatened Wildlife (``delist'') due
to recovery.

Previous Federal Action

The black-capped vireo was determined to be a candidate for listing
under the Act on December 30, 1982 (47 FR 58454). On October 6, 1987,
the species was listed as endangered, due to various threats including
nest parasitism by brown-headed cowbirds and loss of habitat from
urbanization, grazing, removal of vegetation for range improvement, and
succession (52 FR 37420). Succession is a natural process of change in
vegetation over time and black capped vireo habitat is lost when there
are fewer wildfires maintaining the vegetation in an early successional
stage. Critical habitat was not designated because there was no
demonstrable benefit from the potential designation of critical habitat
to the vireo and such designation was not considered prudent because
additional harassment potentially affecting reproductive success could
occur if critical habitat was designated (52 FR 37420). In addition,
the habitat of the black-capped vireo occurs in scattered, small
patches and occupied habitat would vary over time due to succession of
vegetation, and would therefore be difficult to delineate and provide
no benefit to recovery (52 FR 37420). A status review (``5-year
review'') under section 4(c)(2)(A) of the Act was completed for the
species on July 26, 2007. The 5-year review recommended that the
species be reclassified (``downlisted'') from endangered to threatened
given the increased numbers of known individuals and populations, the
reduction in the magnitude of the threats since the time of listing,
and the effects of conservation measures on the major threats to the
species (USFWS 2007). On July 16, 2012, we received a petition dated
July 11, 2012, from The Pacific Legal Foundation, Jim Chilton, the New
Mexico Cattle Growers' Association, New Mexico Farm & Livestock Bureau,
New Mexico Federal Lands Council, and Texas Farm Bureau requesting that
the black-capped vireo be reclassified as threatened based on the
analysis and recommendation contained in the 5-year review. The Service
published a 90-day finding on September 9, 2013 (78 FR 55046) stating
that the petition contained substantial scientific or commercial
information indicating that the petitioned action may be warranted. On
November 20, 2015, the Service received a complaint (New Mexico Cattle
Growers' Association et al. v. United States Department of the Interior
et al., No. 1:15-cv-01065-PJK-LF (D. N.M.)) for declaratory judgment
and injunctive relief from the New Mexico Cattle Growers' Association,
Jim Chilton, New Mexico Farm & Livestock Bureau, New Mexico Federal
Lands Council, and Texas Farm Bureau to, among other things, compel the
Service to make a 12-month finding on the species.

Species Information

A thorough review of the taxonomy, life history, ecology, and
overall

[[Page 90764]]

viability of the black-capped vireo is presented in the SSA report for
the black-capped vireo (Service 2016; available at http://www.regulations.gov and posted at https://www.fws.gov/southwest/es/ArlingtonTexas/). The SSA report documents the results of the
comprehensive biological status review for the black-capped vireo and
provides an account of the species' overall viability through
forecasting of the species' condition in the future (Service 2016,
entire). In the SSA report, we summarize the relevant biological data
and a description of past, present, and likely future stressors to the
species, and conduct an analysis of the viability of the species. The
SSA report provides the scientific basis that informs our regulatory
determination regarding whether this species should be listed as an
endangered or a threatened species under the Act. This determination
involves the application of standards within the Act, its implementing
regulations, and Service policies (see Finding and Proposed
Determination, below). The SSA report contains the analysis on which
this finding is based, and the following discussion is a summary of the
results and conclusions from the SSA report. We solicited peer review
of the draft SSA report from three objective and independent scientific
experts. We received responses from all three of the reviewers, and we
modified the SSA report as appropriate.

Species Description and Needs

The black-capped vireo is a migratory songbird that breeds and
nests in south central Oklahoma, Texas, and the northern states of
Mexico (Coahuila, Nuevo Le[oacute]n, Tamaulipas), and winters along
Mexico's western coastal states. In general, black-capped vireo
breeding habitat is categorized as shrublands and open woodlands.
The resource needs of the black-capped vireo are described not only
for individuals and populations, but also for the species rangewide in
the SSA report. Life-history needs are generally categorized as
breeding, feeding and sheltering; for migratory species this may also
include habitat for migration and wintering. Individual black-capped
vireos need a suitable breeding habitat patch of at least 1.5 hectares
(ha) (3.7 acres (ac)) of shrublands with between 35 and 55 percent
shrub cover that consists largely of deciduous shrubs, often oaks in
mesic areas, and with a low proportion of junipers. Within breeding
habitat patches, shrubs mottes (groups of shrubs) with deciduous
foliage from ground level to 3 meters (0 to 9.8 feet) in height are
needed for nest concealment and foraging.
Populations of black-capped vireos are described based on the
number of adult males the breeding habitat can support. Those sites
(defined as geographical areas with suitable breeding habitat) capable
of supporting at least 30 adult males are considered ``manageable
populations.'' Those sites with suitable breeding habitat capable of
supporting 100 or more adult males are considered ``likely resilient
populations,'' that have the ability to withstand disturbances of
varying magnitude and duration. Brown-headed cowbird (Molothrus ater)
parasitism rates below 40 percent (Tazik and Cornelius 1993, p. 46;
Wilsey et al. 2014, p. 568) are necessary to sustain and expand vireo
populations.
Information on use of habitat during migration is sparse. In
general, black-capped vireos require airspace for movement and woody
vegetation for stopovers extending from the northernmost portion of the
breeding grounds to the extent of the known wintering grounds.
The winter range of the black-capped vireo occurs entirely on the
slopes of Mexico's Pacific coast. Arid and semi-arid scrub and
secondary growth habitat, generally 0.6 to 3.0 m (2 to 10 ft) in
height, is needed for feeding and sheltering.
Across its range, the black-capped vireo needs suitable breeding
habitat to support manageable and likely resilient populations that are
geographically distributed to allow gene flow and dispersal; low brown-
headed cowbird parasitism rates to allow sufficient productivity;
sufficient airspace and stopover sites (=areas) for migration; and
wintering areas of arid and semi-arid scrub and secondary growth
habitat along the Pacific slopes of western Mexico. During the breeding
season, habitat requirements appear to be more specialized than during
wintering and migration. Given the potential for black-capped vireos to
use a wide range of habitat types during migration and wintering, much
of the subsequent analysis is focused on breeding habitat.

Species Current Conditions

There are no available rangewide population estimates of breeding
black-capped vireos. However, reported occurrences (sightings) of
black-capped vireos are available for comparing abundance and
distribution across timeframes (but see section 4.1, ``Assumptions,''
in the SSA report; Service 2016 regarding inherent differences in
survey effort and the differences between reported occurrences and
population estimates). At the time of listing in 1987, there were
approximately 350 reported black-capped vireo occurrences. From 2009 to
2014 there were 5,244 adult males reported, a 17.5 percent increase
from data used for the last review period (2000 to 2005).
At the time of listing in 1987, approximately 350 individual birds
were known from 4 Oklahoma counties, 21 Texas counties and 1 Mexican
state. The consistency of survey effort has varied throughout the
years; however, it represents the best information available to
evaluate abundance and distribution rangewide. The known breeding
distribution now occurs in 5 Oklahoma counties, 40 Texas counties, and
3 states in Mexico.
Information from 2009 to 2014 indicates there are 14 known
populations with 100 males or more (defined as a likely resilient
population) throughout the breeding range, 9 of which occur on managed
lands (under Federal, State, or municipal ownership, or under
conservation easement) in the United States. An additional 20
manageable populations (30 or more adult males, but fewer than 100), 10
of which occur on managed lands, are distributed throughout the range
in the United States.
Information gathered from annual black-capped vireo monitoring at
four publically-managed areas containing the largest known black-capped
vireo populations represents some of the best data available on the
species' population trends. These four regularly surveyed areas (Fort
Hood Military Installation, Fort Sill Military Installation, Kerr
Wildlife Management Area, and Wichita Mountains Wildlife Refuge) show
stable or increasing population estimates since 2005. Data reported
from 2000 to 2005 indicate these populations represented 64 percent of
the known population. From 2009 to 2014 these four major populations
accounted for 40 percent of the known rangewide breeding population,
which occurs on approximately 27,930 ha (69,000 ac) of habitat. The
difference in percentage suggests the black-capped vireo's distribution
is more diverse and occurs more on private lands than known from the
previous timeframe (2000-2005), indicating that additional unknown
populations likely exist on private lands throughout the breeding
range. The largest increase in known abundance is an additional large
population documented in Val Verde County, Texas. Together, these five
large populations were estimated to consist of 14,418 adult males in
2013-14.

[[Page 90765]]

The levels of gene flow between extant populations indicate
adequate genetic diversity (Vazquez-Miranda et al. 2015, p. 9; Zink et
al. 2010, entire) despite some variation in studies with respect to
genetic diversity, gene flow, and population structuring (e.g., Barr et
al. 2008; Zink et al. 2010; Athrey et al. 2012).
Little is known about the habits of black-capped vireos during
migration; however, most evidence suggests that there is a southerly,
central Mexican migratory route following the Sierra Madre Oriental
(Marshall et al. 1985, p. 4; Farquhar and Gonzalez 2005, entire).
Birds banded on the breeding grounds that return in following years
suggest adequate availability of resources during wintering and
migration. Survival rates (estimated from return rates) for black-
capped vireos at Fort Hood are comparable to the rates of other
passerines (Ricklefs 1973; Martin 1995; Kostecke and Cimprich 2008, p.
254).
Information on migration and wintering of black-capped vireos in
Mexico is limited to a few studies that document the extent of the
wintering range and estimate habitat areas. Winter habitat utilized is
more general and diverse than that of the breeding grounds. While
specific requirements of winter habitat are unknown, tropical dry
forests (areas where arid and semi-arid winter habitats occur) exist in
areas normally inaccessible to development. Habitat modelling has
suggested wintering areas in Mexico occur across 103,000 to 141,000
square kilometers (km\2\) (39,769 to 54,440 square miles (mi\2\)) and
extend further than previous records have identified, including the
states of Guerrero and Chiapas (Vega Rivera et al. 2010, p. 101; Powell
2013, pp. 34-38). Of this area, approximately 7.1 percent (1,000,000 ha
(2,471,053 ac)) occurs on natural protected areas (National parks,
reserves, etc.) (Vega Rivera et al. 2010, pp. 98-102). Additionally,
there are approximately 1,492,400 ha (3,687,801 ac) of lands designated
as ``important bird areas'' in the estimated winter range that receive
varying levels of protection (Vega Rivera et al. 2011, p. 103).
The U.S. portion of the black-capped vireo's range is comprised of
a diversity of landownerships, from private lands to several forms of
public ownership. Various conservation actions and programs have been
developed and implemented in an effort to recover the species. These
conservation actions implemented on publically-managed and private
lands throughout the species' current range have reversed black-capped
vireo declines within several populations. Ongoing active management on
publically-managed lands and those under conservation easements has
resulted in 40 managed populations in Oklahoma and Texas, varying in
size from a single adult male to an estimated 7,478 adult males. Of
these, 9 are considered likely resilient populations and another 10 are
considered manageable populations. Although information on breeding
vireos in Mexico is limited, the vireo is afforded protected status
(SEMARNAT 2015, p. 79), known threats appear to be of less magnitude
than those in the United States, and densities of known populations
have been documented up to six times as high as populations in the
United States (Farquhar and Gonzalez 2005, p. 25; Wilkins et al. 2006,
p. 28).
The contribution of prescribed fire and wildfire to the development
of suitable breeding habitats in Oklahoma and the eastern portion of
the species' Texas range is well documented (USFWS 1991, p. 22;
Campbell 1995, p. 29; Grzybowski 1995, p. 5), although in the western
portion of the species' breeding range in Texas and in Mexico, fire is
not as essential in maintaining habitat suitability. The use of
prescribed fire as a habitat management tool is increasing or remains
constant across most of the United States (Melvin 2015, p. 10). More
than 3,156 ha (7,800 ac) in Oklahoma and more than 48,562 ha (120,000
ac) in Texas have been burned annually (2004-2014) with prescribed
fire, and much additional acreage is burned by unplanned wildfire
(Oklahoma's annual average is approximately 63,940 ha (158,000 ac);
Texas' annual average is approximately 322,939 ha (798,000 ac)) (NIFC
2014). Although the majority of these burns were on Federal lands
outside of the black-capped vireo's range, there has been an overall
increase in the use of prescribed fire as a cost effective tool for
range and wildlife management.
Reduction of brood parasitism by brown-headed cowbirds through
management programs increases black-capped vireo breeding success
(Eckrich et al. 1999, pp. 153-154; Kostecke et al. 2005, p. 57; Wilkins
et al. 2006, p. 84; Campomizzi et al. 2013, pp. 714-715). Brown-headed
cowbird parasitism rates below 40 percent are vital to sustaining and
expanding black-capped vireo populations. The continuation of brown-
headed cowbird trapping on Federal and private properties and expansion
of this practice to other properties would help reduce parasitism rates
and improve black-capped vireo breeding success. In an effort to manage
the brown-headed cowbird populations in Texas, the Texas Parks and
Wildlife Department has implemented a cowbird trapping program, which
provided participating landowners a training and certification process.
Section 10 of the Act provides a regulatory mechanism to permit the
incidental take of federally-listed fish and wildlife species by
private interests and non-Federal government agencies during otherwise
lawful activities. Take, as defined by the Act, means to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct. Incidental take is defined by
the Act as take that is incidental to, and not the purpose of, the
carrying out of an otherwise lawful activity. Section 10(a)(2)(A) of
the Act requires an applicant for an incidental take permit to submit a
``conservation plan'' that specifies, among other things, the impacts
that are likely to result from the taking and the measures the permit
applicant will undertake to minimize and mitigate such impacts.
Conservation plans under the Act have come to be known as ``habitat
conservation plans'' (HCPs). There have been eight approved HCPs
addressing the ``incidental take'' of black-capped vireos for project-
related impacts during the 29 years the species has been listed, all of
which are in Texas. In total, approximately 7,843.2 ha (19,381 ac) of
black-capped vireo habitat may be impacted, either directly or
indirectly, resulting from activities authorized through HCPs. To
mitigate black-capped vireo habitat loss, the permittees must preserve
and provide funding for approximately 8,239.4 ha (20,360 ac) of habitat
restoration and management for off-site black-capped vireo habitats as
conservation actions under these HCPs.

Recovery Planning and Recovery Criteria

Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Recovery plans identify site-
specific management actions that will achieve recovery of the species
and objective, measurable criteria that set a trigger for review of the
species' status. Methods for monitoring recovery progress may also be
included in recovery plans.
Recovery plans are not regulatory documents; instead they are
intended to establish goals for long-term conservation of listed
species and define criteria that are designed to indicate when the
threats facing a species have been removed or reduced to such an extent
that the species may no longer

[[Page 90766]]

need the protections of the Act. There are many paths to accomplishing
recovery of a species, and recovery may be achieved without all
criteria being fully met. Recovery of a species is a dynamic process
requiring adaptive management that may, or may not, fully follow the
guidance provided in a recovery plan.
The black-capped vireo recovery plan was approved by the Service on
September 30, 1991 (USFWS 1991). The prospect of complete recovery of
the species was indeterminable at that time, and therefore, an interim
objective of reclassification from endangered to threatened status was
used to develop recovery criteria (USFWS 1991, p. 36). The recovery
plan includes the following reclassification criteria:
(1) All existing populations are protected and maintained.
(2) At least one viable breeding population exists in each of the
following six locations: Oklahoma, Mexico, and four of six Texas
regions.
(3) Sufficient and sustainable area and habitat on the winter range
exist to support the breeding populations outlined in (1) and (2).
(4) All of the above have been maintained for at least 5
consecutive years and available data indicate that they will continue
to be maintained.
When the recovery plan was approved in 1991, a viable population
was estimated, using population viability analysis, to be at least 500
pairs of breeding black-capped vireos. The recovery plan was intended
to protect and enhance the populations known at that time, while
evaluating the possibility of recovery and developing the necessary
delisting criteria if recovery is found to be feasible. The rangewide
population was unknown, but the Oklahoma population was thought to be
fewer than 300 individual birds. During the 2007 5-year review of the
status of the species, it was determined that the 1991 recovery plan
was outdated and did not reflect the best available information on the
biology of the species and its needs (USFWS 2007, p. 5). Therefore,
rather than use the existing outdated recovery criteria, the Service
assessed the species' viability, as summarized in the SSA report
(Service 2016; available at http://www.regulations.gov, Docket No. FWS-
R2-ES-2016-0110) to inform the process of making the determination that
the black-capped vireo has recovered.

Summary of Factors Affecting the Species

Section 4 of the Act and its implementing regulations (50 CFR part
424) set forth the procedures for listing species, reclassifying
species, or removing species from listed status. A species may be
determined to be an endangered or threatened species due to one or more
of the five factors described in section 4(a)(1) of the Act: (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. A species may be
reclassified or delisted on the same basis. Consideration of these
factors was incorporated in the SSA report (Service 2016; available at
http://www.regulations.gov, Docket No. FWS-R2-ES-2016-0110) as ``causes
and effects,'' and projected in future scenarios to evaluate viability
of the black-capped vireo. The effects of conservation measures
currently in place were also assessed as part of the current condition
of the species in the SSA report and those effects were projected in
future scenarios.

Causes and Effects

When the black-capped vireo was listed in 1987, the known threats
influencing its status were the loss of suitable breeding habitat
(Factor A) and parasitism by brown-headed cowbirds (Factor E). These
continue to be the primary factors affecting the species' viability.
The loss of breeding habitat in the United States has been linked to
changes in vegetation due to fire suppression (vegetational
succession), grazing and browsing from livestock and native and
nonnative ungulates, and the conversion of breeding habitat to other
land uses. In addition, we considered the effects of climate change on
available breeding and wintering habitat and other potential habitat
impacts in the winter range in order to assess the status of the
species throughout its range.

Habitat Loss (Factor A)

Black-capped vireo breeding habitat most likely occurs on lands
categorized in agricultural census data by landowners as ``rangeland.''
Therefore, trends in lands categorized as rangeland is a useful
indirect measure for estimating the effects of land use changes on the
black-capped vireo. There has been a general increasing trend since
1987 for occurrence of rangeland within the black-capped vireo's U.S.
breeding range, based on available Agricultural Census data. That is,
there has been an increase in the amount of lands reported as
rangeland. Since 2002, Oklahoma has reported a 36 percent increase and
Texas has reported a 4.4 percent increase in rangeland (USDA 2002a,
2002b, 2012a, and 2012b).
The prevalence of goats in Texas was specifically considered a
threat to the black-capped vireo in 1987. Goat browsing can eliminate
shrub foliage necessary for black-capped vireo nest concealment. Since
that time, sheep and goats within the U.S. range of the vireo have
dramatically decreased, largely attributed to the repeal of the
National Wool Act of 1954 (7 U.S.C. 1781 et seq.; repealed by Pub. L.
103-130 (dated November 1, 1993), with an effective date of December
31, 1995, under section 3(a) of Pub. L. 103-130). From 1987 to 2012,
reported numbers of goats decreased by 46.8 percent in counties where
black-capped vireos are known to occur (USDC 1987a, 1987b; USDA 2012a,
2012b).
Cattle, white-tailed deer, and nonnative ungulates are also known
to impact black-capped vireo habitat by browsing and eliminating shrub
foliage necessary for nest concealment; however, this impact is to a
lesser extent than the impacts of goats (Graber 1961, p. 316; Shaw et
al. 1989, p. 29; Guilfoyle 2002, p. 8; Wilkins et al. 2006, pp. 52-54).
Cattle numbers reported by county have also decreased across the black-
capped vireo's range from 1987 to 2012 by 37.2 percent (USDC 1987a,
1987b; USDA 2012a, 2012b). While livestock numbers have decreased,
rangeland acres have increased. Wilcox et al. (2012) attribute this
apparent discrepancy to reductions in stocking density. This overall
decline in livestock density has been driven by changing land ownership
and the increasing importance of wildlife conservation (Wilcox et al.
2012). White-tailed deer densities in the species' range in Texas have
increased by 18.3 percent from 2005 to 2014 (TPWD 2015, p. 27), leading
to increased deer browsing, but this increase is considerably less than
the decreases in goats and cattle. In Mexico, a primary economic
activity is livestock ranching within the breeding range (Morrison et
al. 2014, p. 37), although trend data are not available. In some areas
of Mexico, livestock appears to be at low densities (small scale)
(Morrison et al. 2014, p. 37) and may be separated from breeding vireos
by elevation and, therefore, may not be in direct contact with habitat
(Farquhar and Gonzalez 2005, p. 30).
Vegetational succession, or the change in species composition over
time, continues to affect the black-capped

[[Page 90767]]

vireo habitat in the eastern portion of the range in Texas and in
Oklahoma. Habitat that is considered to be early successional in the
eastern portion of the range is created naturally or artificially by
disturbance, usually by fire. In the absence of wildfire or prescribed
fire, early successional habitats in the eastern portion of the range
grow into wooded habitat that provides unsuitable structure for vireo
nesting. In the western portion of the range in Texas and Mexico,
suitable black-capped vireo habitat does not typically grow into wooded
habitat, and succession management is less important (Hayden et al.
2001, p. 32; Farquhar and Gonzalez 2005, p. 32; McFarland et al. 2012,
p. 5).
Overall, the reduction in numbers of goats and cattle compensates
for any increase in deer browsing and contributes to a net increase in
available breeding habitat. Likewise, the increasing amounts of
rangelands also contribute to increased available breeding habitat. In
the eastern portion of the range, breeding habitat is considered early
successional habitat and associated with disturbance such as fire.
Because land managers in the eastern portion of the range are
increasingly using fire as a management tool, available breeding
habitat has likely increased in this portion of the range. In the
western portion of the range, such disturbance is not necessary to
maintain suitable habitat and much of the area is currently considered
suitable breeding habitat.

Winter Range (Factor A)

Black-capped vireos are more general in habitat selection for
wintering, and can use scrub, disturbed habitats, secondary growth
habitats, and tropical dry forests as well as shrubs. Although threats
to the species on its wintering grounds were not identified at the time
of listing or during the 2007 5-year review, they were considered as
part of the species status assessment process to determine whether
winter habitat availability could be a limiting factor. Dry forests in
Mexico are a conservation concern (Miles et al. 2006, p. 502) and have
historically been modified for agricultural and other purposes (Powell
2013, p. 100). The majority of impacts to tropical dry forests (greater
than 55 percent) occurred prior to the listing of the black-capped
vireo (Powell 2013, pp. 101-102). Habitat loss still occurs (Powell
2013, pp. 101-102), but the extent of habitat specifically important to
wintering vireos is unknown, but likely diverse, considering the
variety of habitats used. Habitat models have suggested the winter
range may be as large as 141,000 km\2\ (54,440 mi\2\) in size (Vega
Rivera et al. 2010, p. 101). The remaining habitat may be inaccessible
to most anthropogenic impacts, and thus removed from many potential
stressors, because it occurs on canyons and slopes.

Brood Parasitism (Factor E)

Brown-headed cowbirds are brood parasites; females remove an egg
from a host species nest, lay their own egg to be raised by the adult
hosts, and the result usually causes the death of the remaining host
nestlings (Rothstein 2004, p. 375). Brood parasitism by brown-headed
cowbirds has been documented to affect more than 90 percent of black-
capped vireo nests in some Texas study areas (Grzybowski 1991, p. 4).
Control of cowbirds through trapping has been shown to significantly
reduce parasitism and increase population productivity of vireos
(Eckrich et al. 1999, pp. 153-154; Kostecke et al. 2005, p. 28). An
evaluation of Breeding Bird Survey data shows brown-headed cowbird
detections have been decreasing in Texas and Oklahoma since 1967,
specifically in ecoregions where black-capped vireos are known to occur
(Sauer et al. 2014, entire).
Furthermore, available data suggests geographic differences in the
impact cowbirds have on breeding vireos. Cowbird abundance and
parasitism appears to be less prevalent on the western portion of the
black-capped vireo's range and in Mexico (Bryan and Stuart 1990, p. 5;
Farquhar and Maresh 1996, p. 2; Farquhar and Gonzalez 2005, p. 30;
Smith et al. 2012, p. 281; Morrison et al. 2014, p. 18).
Although cowbird abundance appears to be declining and the effects
of parasitism are reduced in portions of the vireo's range, cowbird
control continues to be necessary to maintain the current number of
black-capped vireo populations and individuals in the eastern portion
of the range in Texas and in Oklahoma.

Climate Change (Factor E)

The effects of climate change are a concern in ecosystems that are
sensitive to warming temperatures and decreased precipitation, such as
arid and semi-arid habitats where the black-capped vireo resides. In
Texas, climate change models generally predict a three to four degree
Fahrenheit (1.6 to 2.2 [deg]C) increase in temperature between 2010 and
2050 (Nielsen-Gammon 2011, p. 2.23; Banner et al. 2010, p. 8, Alder and
Hostetler 2013, entire). Predictions on precipitation trends over Texas
are not as clear (Nielsen-Gammon 2011, p. 2.28), but the models tend to
suggest that Texas weather will become drier (Banner et al. 2010, p. 8,
Alder and Hostetler 2013, entire).
Although the impact from the effects of climate change on shrubland
habitat required by the black-capped vireo for breeding is uncertain,
shrub encroachment into grasslands in North America, primarily due to
fire suppression and livestock grazing, is well documented (Van Auken
2000, entire; Briggs et al. 2005, entire; Knapp et al. 2007, p. 616).
Projected warming temperatures and dry conditions will likely influence
future shrubland dominance (Van Auken 2000, p. 206). Evidence suggests
that within the far west portion of the black-capped vireo's range, the
effects of climate change and fire suppression would result in a
shrubland-dominated landscape (White et al. 2011, p. 541). In this
scenario, the availability of shrub habitat would be the least
affected, and potentially more prevalent on the landscape which may
increase the available amount of suitable breeding habitat.

Species Future Conditions and Viability

We evaluated overall viability of the black-capped vireo in the SSA
report (Service 2016; available at http://www.regulations.gov, Docket
No. FWS-R2-ES-2016-0110) in the context of resiliency, redundancy, and
representation. Species viability, or the ability to survive long term,
is related to the species' ability to withstand catastrophic population
and species-level events (redundancy), the ability to adapt to changing
environmental conditions (representation), and the ability to withstand
disturbances of varying magnitude and duration (resiliency). The
viability of a species is also dependent on the likelihood of new
stressors or continued threats now and in the future that act to reduce
a species' redundancy, representation, and resiliency.
In the SSA report, we forecast the persistence of known populations
of black-capped vireos over the next 50 years. We chose 50 years to
reflect specific climate change models that are relevant to the black-
capped vireo and its habitat. The 50 year timeframe also reflects our
ability to project land management decisions. We developed multiple
future conditions scenarios for the known manageable and likely
resilient populations based on both continued management (i.e.,
continuing the current conditions of habitat and cowbird management)
and decreased management (Factor D). For the decreased management
scenarios, populations on private lands were

[[Page 90768]]

considered to have no management in the future, while habitat and
cowbird management on publically-managed lands was projected to
diminish in scale or frequency that would not continue to provide for
the needs of the species. The decreased management scenario projected
the future conditions of the species without the continued protections
of the Act. All of the scenarios are considered to be within the realm
of reasonable possibility. Even in the worst case scenario, at least 27
of the 34 known manageable and likely resilient populations, have a
moderate to high (i.e. greater than 50 percent) likelihood of
persisting over the next 50 years, indicating adequate redundancy
across the species' range. Likewise, those populations projected in the
worst case scenario are distributed throughout the range as multiple
populations within each of the different areas of representation
indicating adequate redundancy within each of the representative areas
(as described below).
We evaluated several studies with respect to representation in the
black-capped vireo, mostly involving genetic diversity. Although there
is discrepancy between studies, there is evidence that adequate gene
flow for healthy genetic diversity exists across known breeding
populations. Additionally, there is a diversity of habitat types
utilized within both the breeding and wintering ranges. For these
reasons, the black-capped vireo appears to have adequate representation
both genetically and ecologically to allow for adaptability to
environmental changes.
Resiliency, in terms of habitat capable of supporting greater than
100 adult males, for the eastern portion of the black-capped vireo's
breeding range is dependent on vegetation and cowbird management. In
the western portion of the range, populations are more resilient,
because management is not required to maintain suitable breeding
habitat and threats related to cowbirds are less severe. Since 2005,
resiliency has increased in regularly monitored populations and under
future scenarios the number of likely resilient populations either
increases or remains close to current levels (Service 2016), therefore,
we expect that trend in increasing resiliency to continue into the
future.
Currently, we consider the black-capped vireo to be a conservation-
reliant species meaning it is likely that conservation actions, in the
form of habitat and cowbird management, are needed for persistence of
breeding populations in a portion of its range. This is because many
populations require management activities, especially in the eastern
portion of the breeding range, to persist. In considering its
management needs, the forecast of future conditions includes scenarios
based on the needs of the species, stressors, identification of
additional populations, and restoration efforts. Our forecasts that
produce stable or increasing resiliency and redundancy reflect the
differences in the current conditions of the species compared to the
status assessment that was conducted 30 years ago, which led to the
species' listing in 1987.
We consider active management of threats, where necessary, to be
essential to the persistence of the species, as evidenced by the
historical increases in the known population and distribution.
Prescribed fire as a management tool is a cost effective way to restore
prairies and shrublands, reduce impacts of invasive juniper, and often
used to benefit game species (e.g., deer, wild turkey). Such management
actions may directly and indirectly benefit black-capped vireos when
they occur within the breeding range. The Service believes our Federal
and State conservation partners, who are largely responsible for the
recovery of the species, will continue to manage black-capped vireo
populations on publically-managed lands and promote management actions
across the breeding range of the species, particularly given these
compatible goals. In particular, the Integrated Natural Resource
Management Plans for Fort Hood and Fort Sill will continue management
actions that directly benefit black-capped vireos. Likewise, prescribed
fire is being used as a management tool for a variety of species at
most publically-managed areas within the current breeding range of the
black-capped vireo, and those management actions will continue
regardless of the listing status of black-capped vireos. Black-capped
vireo populations existing on properties under management through
public ownership (Federal, state, municipal) or easement are generally
projected to persist under short and long term conditions. Even under
diminished management specific to black-capped vireos, many of these
locations are better suited to provide resources for the black-capped
vireo, often due to the conservation mission of the property (e.g.,
state parks).

Finding and Proposed Determination

We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the black-capped vireo. Our analysis indicates the known threats at
the time of listing, habitat loss (Factor A) through land use changes,
livestock grazing, and vegetation succession, and brown-headed cowbird
parasitism (Factor E), are reduced or adequately managed. Regardless of
the listing status of the black-capped vireo, we expect prescribed fire
and other management actions to continue in the eastern portion of the
range because they represent actions that are necessary for landscape
and rangeland management and are aligned with the conservation mission
of many landowners where large populations of black-capped vireos
currently exist (Factor D). Additionally, no new threats have been
identified (Factors B and C). We find that the species has recovered so
that it no longer meets the definition of endangered or threatened
under the Act.
Since the black-capped vireo was listed, its known abundance and
distribution have increased. Currently, we know of 20 manageable and 14
likely resilient populations (as those terms are defined in the SSA
report) across the species' breeding range. We assessed the likelihood
of persistence of these populations over the next 50 years. In the
worst case scenario, the black-capped vireo would be expected to
diminish, but still remain above the level reported from 2000 to 2005.
The black-capped vireo appears to have adequate redundancy,
representation, and resiliency to persist over the next 50 years.
The primary threats to the species continue to be habitat loss
through land use conversion and vegetational succession, and brown-
headed cowbird parasitism, although most threats have decreased in
magnitude or are adequately managed, particularly through the use of
prescribed fire for various habitat restoration purposes not directly
related to black-capped vireo management. Nevertheless, under current
management, these threats are mitigated such that vireo numbers are
robust and increasing. The wintering area for the black-capped vireo
occurs entirely in Mexico, but many of the existing habitat areas are
buffered from degradation due to limited accessibility and rugged
terrain, so we do not anticipate significant reductions in habitat
quality or quantity even without specific management assurances.
Based on the analysis in the SSA report (Service 2016; available at
http://www.regulations.gov, Docket No. FWS-R2-ES-2016-0110), and
summarized above, the black-capped vireo does not currently meet the
Act's definition of endangered in that it is not in danger of
extinction throughout all of its range. In addition, the black-capped
vireo is not

[[Page 90769]]

a threatened species because it is not likely to become endangered in
the foreseeable future throughout all of its range.

Significant Portion of the Range Analysis

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
throughout all or a significant portion of its range. Having determined
that the black-capped vireo is not endangered or threatened throughout
all of its range, we next consider whether there are any significant
portions of its range in which the black-capped vireo is in danger of
extinction or likely to become so. We published a final policy
interpreting the phrase ``significant portion of its range'' (SPR) (79
FR 37578; July 1, 2014). The final policy states that: (1) If a species
is found to be endangered or threatened throughout a significant
portion of its range, the entire species is listed as endangered or
threatened, respectively, and the Act's protections apply to all
individuals of the species wherever found; (2) a portion of the range
of a species is ``significant'' if the species is not currently
endangered or threatened throughout all of its range, but the
portion's' contribution to the viability of the species is so important
that, without the members in that portion, the species would be in
danger of extinction, or likely to become so in the foreseeable future,
throughout all of its range; (3) the range of a species is considered
to be the general geographical area within which that species can be
found at the time the Service makes any particular status
determination; and (4) if a vertebrate species is endangered or
threatened throughout a significant portion of its range, and the
population in that significant portion is a valid distinct population
segment (DPS), we will list the DPS rather than the entire taxonomic
species or subspecies.
The procedure for analyzing whether any portion is an SPR is
similar, regardless of the type of status determination we are making.
The first step in our analysis of the status of a species is to
determine its status throughout all of its range. If we determine that
the species is in danger of extinction, or likely to become endangered
in the foreseeable future, throughout all of its range, we list the
species as an endangered species or threatened species, and no SPR
analysis will be required. If the species is neither in danger of
extinction, nor likely to become so throughout all of its range, as we
have found here, we next determine whether the species is in danger of
extinction or likely to become so throughout a significant portion of
its range. If it is, we will continue to list the species as an
endangered species or threatened species, respectively; if it is not,
we conclude that listing the species is no longer warranted.
When we conduct an SPR analysis, we first identify any portions of
the species' range that warrant further consideration. The range of a
species can theoretically be divided into portions in an infinite
number of ways. However, there is no purpose in analyzing portions of
the range that have no reasonable potential to be significant or in
analyzing portions of the range in which there is no reasonable
potential for the species to be endangered or threatened. To identify
only those portions that warrant further consideration, we determine
whether substantial information indicates that: (1) The portions may be
``significant''; and (2) the species may be in danger of extinction
there or likely to become so within the foreseeable future. Depending
on the biology of the species, its range, and the threats it faces, it
might be more efficient for us to address the significance question
first or the status question first. Thus, if we determine that a
portion of the range is not ``significant,'' we do not need to
determine whether the species is endangered or threatened there; if we
determine that the species is not endangered or threatened in a portion
of its range, we do not need to determine if that portion is
``significant.'' In practice, a key part of the determination that a
species is in danger of extinction in a significant portion of its
range is whether the threats are geographically concentrated in some
way. If the threats to the species are affecting it uniformly
throughout its range, no portion is likely to have a greater risk of
extinction, and thus would not warrant further consideration. Moreover,
if any concentration of threats apply only to portions of the range
that clearly do not meet the biologically based definition of
``significant'' (i.e., the loss of that portion clearly would not be
expected to increase the vulnerability to extinction of the entire
species), those portions would not warrant further consideration.
We identified portions of the black-capped vireo's range that may
be significant, and examined whether any threats are geographically
concentrated in some way that would indicate that those portions of the
range may be in danger of extinction, or likely to become so in the
foreseeable future. Within the breeding range, distinctions can be made
between Mexico, Texas, and Oklahoma, based on vegetation types and, in
Mexico, based on observed higher densities of birds. Additionally, a
distinction could be made between the eastern and western portion of
the breeding range, based on the importance of the threats of cowbird
parasitism and vegetational succession (both more impactful in the
eastern range). As noted above, observed trends in these threats have
been reduced or are adequately managed. While these geographic
distinctions may be significant, information and analysis indicates
that the species is unlikely to be in danger of extinction or to become
so in the foreseeable future in these portions, given that the
increases in reported rangeland statistics, decreases in cattle and
goats, and ongoing management of cowbirds have occurred across the
range, including within the eastern portion of the range. Therefore,
these portions do not warrant further consideration to determine
whether they are a significant portion of its range.
We also evaluated representation across the black-capped vireo's
range to determine if certain areas were in danger of extinction, or
likely to become so, due to isolation from the larger range. Several
studies have addressed genetic diversity of the black-capped vireo,
particularly due to its fairly restricted breeding range both
historically and currently, and due to the ephemeral nature of its
habitat in portions of its range and its patchy distribution in the
breeding range. Evidence exists that population differentiation has
occurred over the black-capped vireo's breeding range due to limited
gene flow between breeding populations (Barr et al. 2008, entire).
However, other studies have shown no differentiation of populations and
that adequate gene flow exists (Vazquez-Miranda et al. 2015, p. 9; Zink
et al. 2010, entire). Adult black-capped vireos show strong site
fidelity to territories between breeding seasons, especially in larger
populations (USFWS 1991, p. 19). Gene flow between populations is
largely dependent on the proximity of populations, in order to
facilitate dispersal of breeding birds. Dispersal distances for adults
is generally 0.14 to 0.41 kilometers (km) (0.09 to 0.25 miles (mi))
(DeBoer and Kolozar 2001, entire); however, long dispersal distances
have been recorded up to 12.8 km (8 mi) (USFWS 1991, p. 19). Natal
dispersal, the movement from hatch site to breeding site, is known to
be much greater, generally from 21 to 30 km (13 to 19 mi) (Grzybowski
1995, p. 18; Cimprich et al. 2009, p. 46). The longest

[[Page 90770]]

dispersal distance of a banded nestling re-sighted as a breeding adult
was 78 km (48.5 mi) (Cimprich et al. 2009, entire). The known
populations of black-capped vireos are geographically spread widely
across the species' historical range and habitat types, ensuring that
the global population is not singular and isolated. Additionally, the
known distribution demonstrates robust representation when considering
genetic heterozygosity and lack of genetic structuring across these
populations.
Our analysis indicates that there is no significant geographic
portion of the range that is in danger of extinction or likely to
become so in the foreseeable future. Therefore, based on the best
scientific and commercial data available, no portion warrants further
consideration to determine whether the species may be endangered or
threatened in a significant portion of its range.

Conclusion

We have determined that none of the existing or potential stressors
cause the black-capped vireo to be in danger of extinction throughout
all or a significant portion of its range, nor is the species likely to
become endangered within the foreseeable future throughout all or a
significant portion of its range. We may delist a species according to
50 CFR 424.11(d) if the best available scientific and commercial data
indicate that: (1) The species is extinct; (2) the species has
recovered and is no longer endangered or threatened; or (3) the
original scientific data used at the time the species was classified
were in error. On the basis of our evaluation, we conclude that, due to
recovery, the black-capped vireo is not an endangered or threatened
species. We therefore propose to remove the black-capped vireo from the
Federal List of Endangered and Threatened Wildlife at 50 CFR 17.11(h).

Effects of the Rule

This proposal, if made final, would revise 50 CFR 17.11(h) to
remove the black-capped vireo from the Federal List of Endangered and
Threatened Wildlife. The prohibitions and conservation measures
provided by the Act, particularly through sections 7 and 9, would no
longer apply to this species. Federal agencies would no longer be
required to consult with the Service under section 7 of the Act in the
event that activities they authorize, fund, or carry out may affect the
black-capped vireo. There is no critical habitat designated for this
species; therefore, this proposed rule would not affect 50 CFR 17.95.
Removal of the black-capped vireo from the List of Endangered and
Threatened Wildlife would not affect the protection given to all
migratory bird species under the Migratory Bird Treaty Act (MBTA) of
1918 (16 U.S.C. 703-712). The take of all migratory birds, including
the black-capped vireo, is governed by the MBTA. The MBTA makes it
unlawful, at any time and by any means or in any manner, to pursue,
hunt, take, capture, attempt to take or kill, possess, offer for sale,
sell, offer to barter, barter, offer to purchase, purchase, deliver for
shipment, ship, export, import, cause to be shipped, exported, or
imported, deliver for transportation, transport or cause to be
transported, carry or cause to be carried, or receive for shipment,
transportation, carriage, or export, any migratory bird, any part,
nest, or eggs of any such bird, or any product, whether or not
manufactured, which consists, or is composed in whole or part, of any
such bird or any part, nest, or egg thereof (16 U.S.C. 703(a)). The
MBTA regulates the taking of migratory birds for educational,
scientific, and recreational purposes. Section 704 of the MBTA states
that the Secretary of the Interior (Secretary) is authorized and
directed to determine when, and to what extent, if at all, and by what
means, the take of migratory birds should be allowed, and to adopt
suitable regulations permitting and governing the take. In adopting
regulations, the Secretary is to consider such factors as distribution
and abundance to ensure that any take is compatible with the protection
of the species. Modification to black-capped vireo habitat would
constitute a violation of the MBTA only to the extent it directly takes
or kills a black-capped vireo (such as removing a nest with chicks
present).

Post-Delisting Monitoring

Section 4(g)(1) of the Act requires us, in cooperation with the
States, to implement a monitoring program for not less than 5 years for
all species that have been recovered and delisted. The purpose of this
requirement is to develop a program that detects the failure of any
delisted species to sustain itself without the protective measures
provided by the Act. If, at any time during the monitoring period, data
indicate that protective status under the Act should be reinstated, we
can initiate listing procedures, including, if appropriate, emergency
listing.
We will coordinate with other Federal agencies, State resource
agencies, interested scientific organizations, and others as
appropriate to develop and implement an effective post-delisting
monitoring (PDM) plan for the black-capped vireo. We plan to publish a
notice of availability of a draft PDM plan by June 30, 2017 and include
the final PDM plan should this proposed delisting be finalized. The PDM
plan will build upon current research and effective management
practices that have improved the status of the species since listing.
Ensuring continued implementation of proven management strategies, such
as prescribed fire and cowbird control, that have been developed to
sustain extant populations will be a fundamental goal for the PDM plan.
The PDM plan will identify measurable management thresholds and
responses for detecting and reacting to significant changes in the
black-capped vireo's populations, distribution, and persistence. If
declines are detected equaling or exceeding these thresholds, the
Service, in combination with other PDM participants, will investigate
causes of these declines, including considerations of habitat changes,
substantial human persecution, stochastic events, or any other
significant evidence. The investigation will be to determine if the
black-capped vireo warrants expanded monitoring, additional research,
additional habitat protection, or resumption of Federal protection
under the Act.

Required Determinations

Clarity of the Rule

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

National Environmental Policy Act

We have determined that environmental assessments and environmental
impact statements, as

[[Page 90771]]

defined under the authority of the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection with
regulations 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).

References Cited

A complete list of all references cited in this proposed rule is
available at http://www.regulations.gov at Docket No. FWS-R2-ES-2016-
0110, or upon request from the Arlington, Texas, Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this proposed rule are staff members of the
Service's Arlington, Texas, Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

Sec. 17.11 [Amended]

0
2. Amend Sec. 17.11(h) by removing the entry for ``Vireo, black-
capped'' under ``BIRDS'' from the List of Endangered and Threatened
Wildlife.

Dated: November 30, 2016.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-29547 Filed 12-14-16; 8:45 a.m.]
BILLING CODE 4333-15-P

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(3) New information regarding the life of at least three appropriate grazing, removal of vegetation for range
history, ecology, and habitat use of the independent specialists regarding improvement, and succession (52 FR
black-capped vireo. scientific data and interpretations 37420). Succession is a natural process
Please note that submissions merely contained in the Species Status of change in vegetation over time and
stating support for or opposition to the Assessment Report (SSA report) black capped vireo habitat is lost when
action under consideration without (Service 2016; available at http:// there are fewer wildfires maintaining
providing supporting information, www.regulations.gov under Docket No. the vegetation in an early successional
although noted, will not be considered FWS–R2–ES–2016–0110) supporting stage. Critical habitat was not
in making a determination, as section this proposed rule. The purpose of such designated because there was no
4(b)(1)(A) of the Act (16 U.S.C. 1531 et review is to ensure that our decisions demonstrable benefit from the potential
seq.) directs that determinations as to are based on scientifically sound data, designation of critical habitat to the
whether any species is an endangered or assumptions, and analysis. The peer vireo and such designation was not
threatened species must be made reviewers had no significant objection to considered prudent because additional
‘‘solely on the basis of the best scientific the analysis provided in the SSA report. harassment potentially affecting
and commercial data available.’’ In general, the peer-review comments reproductive success could occur if
You may submit your comments and were largely minor (editorial) or easily critical habitat was designated (52 FR
materials concerning the proposed rule addressed. Substantive comments were 37420). In addition, the habitat of the
by one of the methods listed in specifically addressed, and did not black-capped vireo occurs in scattered,
ADDRESSES. Comments must be involve changes to the viability analysis small patches and occupied habitat
submitted to http://www.regulations.gov of the SSA report. would vary over time due to succession
before 11:59 p.m. (Eastern Time) on the of vegetation, and would therefore be
date specified in DATES. We will not Background difficult to delineate and provide no
consider hand-delivered comments that Section 4(b)(3)(B) of the Act requires benefit to recovery (52 FR 37420). A
we do not receive, or mailed comments that, for any petition to revise the status review (‘‘5-year review’’) under
that are not postmarked, by the date Federal Lists of Endangered and section 4(c)(2)(A) of the Act was
specified in DATES. Threatened Wildlife and Plants that completed for the species on July 26,
We will post your entire comment— contains substantial scientific or 2007. The 5-year review recommended
including your personal identifying commercial information that that the species be reclassified
information—on http:// reclassifying a species may be (‘‘downlisted’’) from endangered to
www.regulations.gov. If you provide warranted, we make a finding within 12 threatened given the increased numbers
personal identifying information in your months of the date of receipt of the of known individuals and populations,
comment, you may request at the top of petition (‘‘12-month Finding). In this the reduction in the magnitude of the
your document that we withhold this finding, we determine whether the threats since the time of listing, and the
information from public review. petitioned action is: (1) Not warranted, effects of conservation measures on the
However, we cannot guarantee that we (2) warranted, or (3) warranted, but major threats to the species (USFWS
will be able to do so. immediate proposal of a regulation 2007). On July 16, 2012, we received a
Comments and materials we receive, implementing the petitioned action is petition dated July 11, 2012, from The
as well as supporting documentation we precluded by other pending proposals to Pacific Legal Foundation, Jim Chilton,
used in preparing this proposed rule, determine whether species are the New Mexico Cattle Growers’
will be available for public inspection endangered or threatened, and Association, New Mexico Farm &
on http://www.regulations.gov, or by expeditious progress is being made to Livestock Bureau, New Mexico Federal
appointment, during normal business add or remove qualified species from Lands Council, and Texas Farm Bureau
hours at the U.S. Fish and Wildlife the Federal Lists of Endangered and requesting that the black-capped vireo
Service, Arlington, Texas, Ecological Threatened Wildlife and Plants. We be reclassified as threatened based on
Services Field Office (see FOR FURTHER must publish these 12-month findings the analysis and recommendation
INFORMATION CONTACT). in the Federal Register. contained in the 5-year review. The
This document represents: Service published a 90-day finding on
Public Hearing
• Our 12-month warranted finding on September 9, 2013 (78 FR 55046) stating
Section 4(b)(5)(E) of the Act provides a July 16, 2012, petition to reclassify the that the petition contained substantial
for one or more public hearings on this black-capped vireo from endangered to scientific or commercial information
proposed rule, if requested. We must threatened (‘‘downlist’’); indicating that the petitioned action
receive requests for public hearings, in • Our determination that the black- may be warranted. On November 20,
writing, at the address shown in FOR capped vireo no longer meets the 2015, the Service received a complaint
FURTHER INFORMATION CONTACT by the definition of endangered or threatened (New Mexico Cattle Growers’
date shown in DATES. We will schedule under the Act; and Association et al. v. United States
public hearings on this proposal, if any • Our proposed rule to remove the Department of the Interior et al., No.
are requested, and places of those black-capped vireo from the Federal List 1:15–cv–01065–PJK–LF (D. N.M.)) for
hearings, as well as how to obtain of Endangered and Threatened Wildlife declaratory judgment and injunctive
reasonable accommodations, in the (‘‘delist’’) due to recovery. relief from the New Mexico Cattle
Federal Register at least 15 days before Growers’ Association, Jim Chilton, New
Previous Federal Action
the first hearing. Mexico Farm & Livestock Bureau, New
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The black-capped vireo was Mexico Federal Lands Council, and
Peer Review determined to be a candidate for listing Texas Farm Bureau to, among other
In accordance with our policy, under the Act on December 30, 1982 (47 things, compel the Service to make a 12-
‘‘Notice of Interagency Cooperative FR 58454). On October 6, 1987, the month finding on the species.
Policy for Peer Review in Endangered species was listed as endangered, due to
Species Act Activities,’’ which was various threats including nest Species Information
published on July 1, 1994 (59 FR parasitism by brown-headed cowbirds A thorough review of the taxonomy,
34270), we solicited the expert opinion and loss of habitat from urbanization, life history, ecology, and overall

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The levels of gene flow between management on publically-managed Department has implemented a cowbird
extant populations indicate adequate lands and those under conservation trapping program, which provided
genetic diversity (Vazquez-Miranda et easements has resulted in 40 managed participating landowners a training and
al. 2015, p. 9; Zink et al. 2010, entire) populations in Oklahoma and Texas, certification process.
despite some variation in studies with varying in size from a single adult male Section 10 of the Act provides a
respect to genetic diversity, gene flow, to an estimated 7,478 adult males. Of regulatory mechanism to permit the
and population structuring (e.g., Barr et these, 9 are considered likely resilient incidental take of federally-listed fish
al. 2008; Zink et al. 2010; Athrey et al. populations and another 10 are and wildlife species by private interests
2012). considered manageable populations. and non-Federal government agencies
Little is known about the habits of Although information on breeding during otherwise lawful activities. Take,
black-capped vireos during migration; vireos in Mexico is limited, the vireo is as defined by the Act, means to harass,
however, most evidence suggests that afforded protected status (SEMARNAT harm, pursue, hunt, shoot, wound, kill,
there is a southerly, central Mexican 2015, p. 79), known threats appear to be trap, capture, or collect, or to attempt to
migratory route following the Sierra of less magnitude than those in the engage in any such conduct. Incidental
Madre Oriental (Marshall et al. 1985, p. United States, and densities of known take is defined by the Act as take that
4; Farquhar and Gonzalez 2005, entire). populations have been documented up is incidental to, and not the purpose of,
Birds banded on the breeding grounds to six times as high as populations in the carrying out of an otherwise lawful
that return in following years suggest the United States (Farquhar and activity. Section 10(a)(2)(A) of the Act
adequate availability of resources during Gonzalez 2005, p. 25; Wilkins et al. requires an applicant for an incidental
wintering and migration. Survival rates 2006, p. 28). take permit to submit a ‘‘conservation
(estimated from return rates) for black- The contribution of prescribed fire plan’’ that specifies, among other things,
capped vireos at Fort Hood are and wildfire to the development of the impacts that are likely to result from
comparable to the rates of other suitable breeding habitats in Oklahoma the taking and the measures the permit
passerines (Ricklefs 1973; Martin 1995; and the eastern portion of the species’ applicant will undertake to minimize
Kostecke and Cimprich 2008, p. 254). Texas range is well documented and mitigate such impacts. Conservation
Information on migration and (USFWS 1991, p. 22; Campbell 1995, p. plans under the Act have come to be
wintering of black-capped vireos in 29; Grzybowski 1995, p. 5), although in known as ‘‘habitat conservation plans’’
Mexico is limited to a few studies that the western portion of the species’ (HCPs). There have been eight approved
document the extent of the wintering breeding range in Texas and in Mexico, HCPs addressing the ‘‘incidental take’’
range and estimate habitat areas. Winter fire is not as essential in maintaining of black-capped vireos for project-
habitat utilized is more general and habitat suitability. The use of prescribed related impacts during the 29 years the
diverse than that of the breeding fire as a habitat management tool is species has been listed, all of which are
grounds. While specific requirements of increasing or remains constant across in Texas. In total, approximately 7,843.2
winter habitat are unknown, tropical most of the United States (Melvin 2015, ha (19,381 ac) of black-capped vireo
dry forests (areas where arid and semi- p. 10). More than 3,156 ha (7,800 ac) in habitat may be impacted, either directly
arid winter habitats occur) exist in areas Oklahoma and more than 48,562 ha or indirectly, resulting from activities
normally inaccessible to development. (120,000 ac) in Texas have been burned authorized through HCPs. To mitigate
Habitat modelling has suggested annually (2004–2014) with prescribed black-capped vireo habitat loss, the
wintering areas in Mexico occur across fire, and much additional acreage is permittees must preserve and provide
103,000 to 141,000 square kilometers burned by unplanned wildfire funding for approximately 8,239.4 ha
(km2) (39,769 to 54,440 square miles (Oklahoma’s annual average is (20,360 ac) of habitat restoration and
(mi2)) and extend further than previous approximately 63,940 ha (158,000 ac); management for off-site black-capped
records have identified, including the Texas’ annual average is approximately vireo habitats as conservation actions
states of Guerrero and Chiapas (Vega 322,939 ha (798,000 ac)) (NIFC 2014). under these HCPs.
Rivera et al. 2010, p. 101; Powell 2013, Although the majority of these burns
pp. 34–38). Of this area, approximately Recovery Planning and Recovery
were on Federal lands outside of the
7.1 percent (1,000,000 ha (2,471,053 ac)) Criteria
black-capped vireo’s range, there has
occurs on natural protected areas been an overall increase in the use of Section 4(f) of the Act directs us to
(National parks, reserves, etc.) (Vega prescribed fire as a cost effective tool for develop and implement recovery plans
Rivera et al. 2010, pp. 98–102). range and wildlife management. for the conservation and survival of
Additionally, there are approximately Reduction of brood parasitism by endangered and threatened species
1,492,400 ha (3,687,801 ac) of lands brown-headed cowbirds through unless we determine that such a plan
designated as ‘‘important bird areas’’ in management programs increases black- will not promote the conservation of the
the estimated winter range that receive capped vireo breeding success (Eckrich species. Recovery plans identify site-
varying levels of protection (Vega Rivera et al. 1999, pp. 153–154; Kostecke et al. specific management actions that will
et al. 2011, p. 103). 2005, p. 57; Wilkins et al. 2006, p. 84; achieve recovery of the species and
The U.S. portion of the black-capped Campomizzi et al. 2013, pp. 714–715). objective, measurable criteria that set a
vireo’s range is comprised of a diversity Brown-headed cowbird parasitism rates trigger for review of the species’ status.
of landownerships, from private lands below 40 percent are vital to sustaining Methods for monitoring recovery
to several forms of public ownership. and expanding black-capped vireo progress may also be included in
Various conservation actions and populations. The continuation of recovery plans.
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programs have been developed and brown-headed cowbird trapping on Recovery plans are not regulatory
implemented in an effort to recover the Federal and private properties and documents; instead they are intended to
species. These conservation actions expansion of this practice to other establish goals for long-term
implemented on publically-managed properties would help reduce parasitism conservation of listed species and define
and private lands throughout the rates and improve black-capped vireo criteria that are designed to indicate
species’ current range have reversed breeding success. In an effort to manage when the threats facing a species have
black-capped vireo declines within the brown-headed cowbird populations been removed or reduced to such an
several populations. Ongoing active in Texas, the Texas Parks and Wildlife extent that the species may no longer

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90766 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Proposed Rules

need the protections of the Act. There 424) set forth the procedures for listing amount of lands reported as rangeland.
are many paths to accomplishing species, reclassifying species, or Since 2002, Oklahoma has reported a 36
recovery of a species, and recovery may removing species from listed status. A percent increase and Texas has reported
be achieved without all criteria being species may be determined to be an a 4.4 percent increase in rangeland
fully met. Recovery of a species is a endangered or threatened species due to (USDA 2002a, 2002b, 2012a, and
dynamic process requiring adaptive one or more of the five factors described 2012b).
management that may, or may not, fully in section 4(a)(1) of the Act: (A) The The prevalence of goats in Texas was
follow the guidance provided in a present or threatened destruction, specifically considered a threat to the
recovery plan. modification, or curtailment of its black-capped vireo in 1987. Goat
The black-capped vireo recovery plan habitat or range; (B) overutilization for browsing can eliminate shrub foliage
was approved by the Service on commercial, recreational, scientific, or necessary for black-capped vireo nest
September 30, 1991 (USFWS 1991). The educational purposes; (C) disease or concealment. Since that time, sheep and
prospect of complete recovery of the predation; (D) the inadequacy of goats within the U.S. range of the vireo
species was indeterminable at that time, existing regulatory mechanisms; or (E) have dramatically decreased, largely
and therefore, an interim objective of other natural or manmade factors attributed to the repeal of the National
reclassification from endangered to affecting its continued existence. A Wool Act of 1954 (7 U.S.C. 1781 et seq.;
threatened status was used to develop species may be reclassified or delisted repealed by Pub. L. 103–130 (dated
recovery criteria (USFWS 1991, p. 36). on the same basis. Consideration of November 1, 1993), with an effective
The recovery plan includes the these factors was incorporated in the date of December 31, 1995, under
following reclassification criteria: SSA report (Service 2016; available at section 3(a) of Pub. L. 103–130). From
(1) All existing populations are http://www.regulations.gov, Docket No. 1987 to 2012, reported numbers of goats
protected and maintained. FWS–R2–ES–2016–0110) as ‘‘causes decreased by 46.8 percent in counties
(2) At least one viable breeding and effects,’’ and projected in future where black-capped vireos are known to
population exists in each of the scenarios to evaluate viability of the occur (USDC 1987a, 1987b; USDA
following six locations: Oklahoma, black-capped vireo. The effects of 2012a, 2012b).
Mexico, and four of six Texas regions. conservation measures currently in Cattle, white-tailed deer, and
(3) Sufficient and sustainable area and place were also assessed as part of the nonnative ungulates are also known to
habitat on the winter range exist to current condition of the species in the impact black-capped vireo habitat by
support the breeding populations SSA report and those effects were browsing and eliminating shrub foliage
outlined in (1) and (2). projected in future scenarios. necessary for nest concealment;
(4) All of the above have been however, this impact is to a lesser extent
maintained for at least 5 consecutive Causes and Effects than the impacts of goats (Graber 1961,
years and available data indicate that When the black-capped vireo was p. 316; Shaw et al. 1989, p. 29; Guilfoyle
they will continue to be maintained. listed in 1987, the known threats 2002, p. 8; Wilkins et al. 2006, pp. 52–
When the recovery plan was approved influencing its status were the loss of 54). Cattle numbers reported by county
in 1991, a viable population was suitable breeding habitat (Factor A) and have also decreased across the black-
estimated, using population viability parasitism by brown-headed cowbirds capped vireo’s range from 1987 to 2012
analysis, to be at least 500 pairs of (Factor E). These continue to be the by 37.2 percent (USDC 1987a, 1987b;
breeding black-capped vireos. The primary factors affecting the species’ USDA 2012a, 2012b). While livestock
recovery plan was intended to protect viability. The loss of breeding habitat in numbers have decreased, rangeland
and enhance the populations known at the United States has been linked to acres have increased. Wilcox et al.
that time, while evaluating the changes in vegetation due to fire (2012) attribute this apparent
possibility of recovery and developing suppression (vegetational succession), discrepancy to reductions in stocking
the necessary delisting criteria if grazing and browsing from livestock and density. This overall decline in
recovery is found to be feasible. The native and nonnative ungulates, and the livestock density has been driven by
rangewide population was unknown, conversion of breeding habitat to other changing land ownership and the
but the Oklahoma population was land uses. In addition, we considered increasing importance of wildlife
thought to be fewer than 300 individual the effects of climate change on conservation (Wilcox et al. 2012).
birds. During the 2007 5-year review of available breeding and wintering habitat White-tailed deer densities in the
the status of the species, it was and other potential habitat impacts in species’ range in Texas have increased
determined that the 1991 recovery plan the winter range in order to assess the by 18.3 percent from 2005 to 2014
was outdated and did not reflect the status of the species throughout its (TPWD 2015, p. 27), leading to
best available information on the range. increased deer browsing, but this
biology of the species and its needs increase is considerably less than the
Habitat Loss (Factor A) decreases in goats and cattle. In Mexico,
(USFWS 2007, p. 5). Therefore, rather
than use the existing outdated recovery Black-capped vireo breeding habitat a primary economic activity is livestock
criteria, the Service assessed the most likely occurs on lands categorized ranching within the breeding range
species’ viability, as summarized in the in agricultural census data by (Morrison et al. 2014, p. 37), although
SSA report (Service 2016; available at landowners as ‘‘rangeland.’’ Therefore, trend data are not available. In some
http://www.regulations.gov, Docket No. trends in lands categorized as rangeland areas of Mexico, livestock appears to be
FWS–R2–ES–2016–0110) to inform the is a useful indirect measure for at low densities (small scale) (Morrison
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process of making the determination estimating the effects of land use et al. 2014, p. 37) and may be separated
that the black-capped vireo has changes on the black-capped vireo. from breeding vireos by elevation and,
recovered. There has been a general increasing therefore, may not be in direct contact
trend since 1987 for occurrence of with habitat (Farquhar and Gonzalez
Summary of Factors Affecting the rangeland within the black-capped 2005, p. 30).
Species vireo’s U.S. breeding range, based on Vegetational succession, or the change
Section 4 of the Act and its available Agricultural Census data. That in species composition over time,
implementing regulations (50 CFR part is, there has been an increase in the continues to affect the black-capped

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a threatened species because it is not extinction or likely to become so Oklahoma, based on vegetation types
likely to become endangered in the throughout a significant portion of its and, in Mexico, based on observed
foreseeable future throughout all of its range. If it is, we will continue to list the higher densities of birds. Additionally,
range. species as an endangered species or a distinction could be made between the
threatened species, respectively; if it is eastern and western portion of the
Significant Portion of the Range
not, we conclude that listing the species breeding range, based on the importance
Analysis
is no longer warranted. of the threats of cowbird parasitism and
Under the Act and our implementing When we conduct an SPR analysis, vegetational succession (both more
regulations, a species may warrant we first identify any portions of the impactful in the eastern range). As
listing if it is in danger of extinction or species’ range that warrant further noted above, observed trends in these
likely to become so throughout all or a consideration. The range of a species threats have been reduced or are
significant portion of its range. Having can theoretically be divided into adequately managed. While these
determined that the black-capped vireo portions in an infinite number of ways. geographic distinctions may be
is not endangered or threatened However, there is no purpose in significant, information and analysis
throughout all of its range, we next analyzing portions of the range that indicates that the species is unlikely to
consider whether there are any have no reasonable potential to be be in danger of extinction or to become
significant portions of its range in which significant or in analyzing portions of so in the foreseeable future in these
the black-capped vireo is in danger of the range in which there is no portions, given that the increases in
extinction or likely to become so. We reasonable potential for the species to be reported rangeland statistics, decreases
published a final policy interpreting the endangered or threatened. To identify in cattle and goats, and ongoing
phrase ‘‘significant portion of its range’’ only those portions that warrant further management of cowbirds have occurred
(SPR) (79 FR 37578; July 1, 2014). The consideration, we determine whether across the range, including within the
final policy states that: (1) If a species substantial information indicates that: eastern portion of the range. Therefore,
is found to be endangered or threatened (1) The portions may be ‘‘significant’’; these portions do not warrant further
throughout a significant portion of its and (2) the species may be in danger of consideration to determine whether
range, the entire species is listed as extinction there or likely to become so they are a significant portion of its
endangered or threatened, respectively, within the foreseeable future. range.
and the Act’s protections apply to all Depending on the biology of the species,
individuals of the species wherever We also evaluated representation
its range, and the threats it faces, it
found; (2) a portion of the range of a might be more efficient for us to address across the black-capped vireo’s range to
species is ‘‘significant’’ if the species is the significance question first or the determine if certain areas were in
not currently endangered or threatened status question first. Thus, if we danger of extinction, or likely to become
throughout all of its range, but the determine that a portion of the range is so, due to isolation from the larger
portion’s’ contribution to the viability of not ‘‘significant,’’ we do not need to range. Several studies have addressed
the species is so important that, without determine whether the species is genetic diversity of the black-capped
the members in that portion, the species endangered or threatened there; if we vireo, particularly due to its fairly
would be in danger of extinction, or determine that the species is not restricted breeding range both
likely to become so in the foreseeable endangered or threatened in a portion of historically and currently, and due to
future, throughout all of its range; (3) its range, we do not need to determine the ephemeral nature of its habitat in
the range of a species is considered to if that portion is ‘‘significant.’’ In portions of its range and its patchy
be the general geographical area within practice, a key part of the determination distribution in the breeding range.
which that species can be found at the that a species is in danger of extinction Evidence exists that population
time the Service makes any particular in a significant portion of its range is differentiation has occurred over the
status determination; and (4) if a whether the threats are geographically black-capped vireo’s breeding range due
vertebrate species is endangered or concentrated in some way. If the threats to limited gene flow between breeding
threatened throughout a significant to the species are affecting it uniformly populations (Barr et al. 2008, entire).
portion of its range, and the population throughout its range, no portion is likely However, other studies have shown no
in that significant portion is a valid to have a greater risk of extinction, and differentiation of populations and that
distinct population segment (DPS), we thus would not warrant further adequate gene flow exists (Vazquez-
will list the DPS rather than the entire consideration. Moreover, if any Miranda et al. 2015, p. 9; Zink et al.
taxonomic species or subspecies. concentration of threats apply only to 2010, entire). Adult black-capped vireos
The procedure for analyzing whether portions of the range that clearly do not show strong site fidelity to territories
any portion is an SPR is similar, meet the biologically based definition of between breeding seasons, especially in
regardless of the type of status ‘‘significant’’ (i.e., the loss of that larger populations (USFWS 1991, p. 19).
determination we are making. The first portion clearly would not be expected to Gene flow between populations is
step in our analysis of the status of a increase the vulnerability to extinction largely dependent on the proximity of
species is to determine its status of the entire species), those portions populations, in order to facilitate
throughout all of its range. If we would not warrant further dispersal of breeding birds. Dispersal
determine that the species is in danger consideration. distances for adults is generally 0.14 to
of extinction, or likely to become We identified portions of the black- 0.41 kilometers (km) (0.09 to 0.25 miles
endangered in the foreseeable future, capped vireo’s range that may be (mi)) (DeBoer and Kolozar 2001, entire);
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throughout all of its range, we list the significant, and examined whether any however, long dispersal distances have
species as an endangered species or threats are geographically concentrated been recorded up to 12.8 km (8 mi)
threatened species, and no SPR analysis in some way that would indicate that (USFWS 1991, p. 19). Natal dispersal,
will be required. If the species is neither those portions of the range may be in the movement from hatch site to
in danger of extinction, nor likely to danger of extinction, or likely to become breeding site, is known to be much
become so throughout all of its range, as so in the foreseeable future. Within the greater, generally from 21 to 30 km (13
we have found here, we next determine breeding range, distinctions can be to 19 mi) (Grzybowski 1995, p. 18;
whether the species is in danger of made between Mexico, Texas, and Cimprich et al. 2009, p. 46). The longest

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90770 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Proposed Rules

dispersal distance of a banded nestling Removal of the black-capped vireo monitoring (PDM) plan for the black-
re-sighted as a breeding adult was 78 km from the List of Endangered and capped vireo. We plan to publish a
(48.5 mi) (Cimprich et al. 2009, entire). Threatened Wildlife would not affect notice of availability of a draft PDM
The known populations of black-capped the protection given to all migratory plan by June 30, 2017 and include the
vireos are geographically spread widely bird species under the Migratory Bird final PDM plan should this proposed
across the species’ historical range and Treaty Act (MBTA) of 1918 (16 U.S.C. delisting be finalized. The PDM plan
habitat types, ensuring that the global 703–712). The take of all migratory will build upon current research and
population is not singular and isolated. birds, including the black-capped vireo, effective management practices that
Additionally, the known distribution is governed by the MBTA. The MBTA have improved the status of the species
demonstrates robust representation makes it unlawful, at any time and by since listing. Ensuring continued
when considering genetic any means or in any manner, to pursue, implementation of proven management
heterozygosity and lack of genetic hunt, take, capture, attempt to take or strategies, such as prescribed fire and
structuring across these populations. kill, possess, offer for sale, sell, offer to cowbird control, that have been
Our analysis indicates that there is no barter, barter, offer to purchase, developed to sustain extant populations
significant geographic portion of the purchase, deliver for shipment, ship, will be a fundamental goal for the PDM
range that is in danger of extinction or export, import, cause to be shipped, plan. The PDM plan will identify
likely to become so in the foreseeable exported, or imported, deliver for measurable management thresholds and
future. Therefore, based on the best transportation, transport or cause to be responses for detecting and reacting to
scientific and commercial data transported, carry or cause to be carried, significant changes in the black-capped
available, no portion warrants further or receive for shipment, transportation, vireo’s populations, distribution, and
consideration to determine whether the carriage, or export, any migratory bird, persistence. If declines are detected
species may be endangered or any part, nest, or eggs of any such bird, equaling or exceeding these thresholds,
threatened in a significant portion of its or any product, whether or not the Service, in combination with other
range. manufactured, which consists, or is PDM participants, will investigate
Conclusion composed in whole or part, of any such causes of these declines, including
bird or any part, nest, or egg thereof (16 considerations of habitat changes,
We have determined that none of the U.S.C. 703(a)). The MBTA regulates the substantial human persecution,
existing or potential stressors cause the taking of migratory birds for stochastic events, or any other
black-capped vireo to be in danger of educational, scientific, and recreational significant evidence. The investigation
extinction throughout all or a significant purposes. Section 704 of the MBTA will be to determine if the black-capped
portion of its range, nor is the species states that the Secretary of the Interior vireo warrants expanded monitoring,
likely to become endangered within the (Secretary) is authorized and directed to
foreseeable future throughout all or a additional research, additional habitat
determine when, and to what extent, if protection, or resumption of Federal
significant portion of its range. We may at all, and by what means, the take of
delist a species according to 50 CFR protection under the Act.
migratory birds should be allowed, and
424.11(d) if the best available scientific to adopt suitable regulations permitting Required Determinations
and commercial data indicate that: (1) and governing the take. In adopting
The species is extinct; (2) the species Clarity of the Rule
regulations, the Secretary is to consider
has recovered and is no longer such factors as distribution and We are required by Executive Orders
endangered or threatened; or (3) the abundance to ensure that any take is 12866 and 12988 and by the
original scientific data used at the time compatible with the protection of the Presidential Memorandum of June 1,
the species was classified were in error. species. Modification to black-capped 1998, to write all rules in plain
On the basis of our evaluation, we vireo habitat would constitute a language. This means that each rule we
conclude that, due to recovery, the violation of the MBTA only to the extent publish must:
black-capped vireo is not an endangered it directly takes or kills a black-capped (1) Be logically organized;
or threatened species. We therefore vireo (such as removing a nest with (2) Use the active voice to address
propose to remove the black-capped chicks present). readers directly;
vireo from the Federal List of (3) Use clear language rather than
Endangered and Threatened Wildlife at Post-Delisting Monitoring jargon;
50 CFR 17.11(h). Section 4(g)(1) of the Act requires us, (4) Be divided into short sections and
in cooperation with the States, to sentences; and
Effects of the Rule implement a monitoring program for not (5) Use lists and tables wherever
This proposal, if made final, would less than 5 years for all species that have possible.
revise 50 CFR 17.11(h) to remove the been recovered and delisted. The If you feel that we have not met these
black-capped vireo from the Federal List purpose of this requirement is to requirements, send us comments by one
of Endangered and Threatened Wildlife. develop a program that detects the of the methods listed in ADDRESSES. To
The prohibitions and conservation failure of any delisted species to sustain better help us revise the rule, your
measures provided by the Act, itself without the protective measures comments should be as specific as
particularly through sections 7 and 9, provided by the Act. If, at any time possible. For example, you should tell
would no longer apply to this species. during the monitoring period, data us the numbers of the sections or
Federal agencies would no longer be indicate that protective status under the paragraphs that are unclearly written,
rmajette on DSK2TPTVN1PROD with PROPOSALS

required to consult with the Service Act should be reinstated, we can initiate which sections or sentences are too
under section 7 of the Act in the event listing procedures, including, if long, the sections where you feel lists or
that activities they authorize, fund, or appropriate, emergency listing. tables would be useful, etc.
carry out may affect the black-capped We will coordinate with other Federal
vireo. There is no critical habitat agencies, State resource agencies, National Environmental Policy Act
designated for this species; therefore, interested scientific organizations, and We have determined that
this proposed rule would not affect 50 others as appropriate to develop and environmental assessments and
CFR 17.95. implement an effective post-delisting environmental impact statements, as

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$Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Proposed Rules 90771 defined under the authority of the Authors PART 17—ENDANGERED AND National Environmental Policy Act of THREATENED WILDLIFE AND PLANTS 1969 (42 U.S.C. 4321 et seq.), need not The primary authors of this proposed be prepared in connection with rule are staff members of the Service’s ■ 1. The authority citation for part 17 regulations pursuant to section 4(a) of Arlington, Texas, Ecological Services continues to read as follows: the Act. We published a notice outlining Field Office (see FOR FURTHER Authority: 16 U.S.C. 1361–1407; 1531– our reasons for this determination in the INFORMATION CONTACT). 1544; and 4201–4245, unless otherwise Federal Register on October 25, 1983 noted. List of Subjects in 50 CFR Part 17 (48 FR 49244). § 17.11 [Amended] Endangered and threatened species, References Cited Exports, Imports, Reporting and ■ 2. Amend § 17.11(h) by removing the entry for ‘‘Vireo, black-capped’’ under A complete list of all references cited recordkeeping requirements, ‘‘BIRDS’’ from the List of Endangered in this proposed rule is available at Transportation. and Threatened Wildlife. http://www.regulations.gov at Docket Proposed Regulation Promulgation Dated: November 30, 2016. No. FWS–R2–ES–2016–0110, or upon Accordingly, we propose to amend Stephen Guertin, request from the Arlington, Texas, part 17, subchapter B of chapter I, title Acting Director, U.S. Fish and Wildlife Ecological Services Field Office (see FOR Service. FURTHER INFORMATION CONTACT). 50 of the Code of Federal Regulations, [FR Doc. 2016–29547 Filed 12–14–16; 8:45 a.m.] as set forth below: BILLING CODE 4333–15–P rmajette on DSK2TPTVN1PROD with PROPOSALS VerDate Sep<11>2014 14:40 Dec 14, 2016 Jkt 241001 PO 00000 Frm 00019 Fmt 4702 Sfmt 9990 E:\FR\FM\15DEP1.SGM 15DEP1$

Document Created: 2016-12-15 01:10:47
Document Modified: 2016-12-15 01:10:47

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule and 12-month petition finding; request for comments.
Dates		We will accept comments received or postmarked on or before February 13, 2017. Please note that if you are using the Federal
Contact		Debra Bills, Field Supervisor, U.S. Fish and Wildlife Service, Arlington Ecological Services Field Office, 2005 NE Green Oaks Blvd., Suite 140, Arlington, TX 76006; telephone 817-277-1100; or facsimile 817-277-1129. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
FR Citation		81 FR 90762
RIN Number		1018-BB79
CFR Associated		Endangered and Threatened Species; Exports; Imports; Reporting and Recordkeeping Requirements and Transportation

81 FR 90762 - Endangered and Threatened Wildlife and Plants; Removing the Black-Capped Vireo From the Federal List of Endangered and Threatened Wildlife

DEPARTMENT OF THE INTERIORFish and Wildlife Service

Federal Register Volume 81, Issue 241 (December 15, 2016)

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service