Endangered and Threatened Wildlife and Plants; Removing the Black-Capped Vireo From the Federal List of Endangered and Threatened Wildlife, 90762-90771 [2016-29547]
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Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Proposed Rules
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BILLING CODE 6560–50–P
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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 BlackCapped Vireo From the Federal List of
Endangered and Threatened Wildlife
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule and 12-month
petition finding; request for comments.
AGENCY:
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 12month 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: https://
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–
SUMMARY:
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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 https://
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 https://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 blackcapped vireo.
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(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 https://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 https://
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 https://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
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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 https://
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 blackcapped 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,
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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 12month finding on the species.
Species Information
A thorough review of the taxonomy,
life history, ecology, and overall
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viability of the black-capped vireo is
presented in the SSA report for the
black-capped vireo (Service 2016;
available at https://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.
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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 Leon, 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 blackcapped 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
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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, blackcapped 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 semiarid 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 semiarid 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 blackcapped 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 blackcapped 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
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occurrences and population estimates).
At the time of listing in 1987, there were
approximately 350 reported blackcapped 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.
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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 blackcapped 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 semiarid 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
(km2) (39,769 to 54,440 square miles
(mi2)) 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
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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 blackcapped 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
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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 projectrelated 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 sitespecific 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
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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
https://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
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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
https://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
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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 blackcapped 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
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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
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large as 141,000 km2 (54,440 mi2) 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 blackcapped 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 °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.
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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 https://
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 specieslevel 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
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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 blackcapped 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 blackcapped vireo to be a conservationreliant 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
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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 blackcapped 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 blackcapped 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
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(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 blackcapped 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 https://
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
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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
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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 blackcapped 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
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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 (VazquezMiranda 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
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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.
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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
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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
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monitoring (PDM) plan for the blackcapped 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
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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
https://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
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.
§ 17.11
[Amended]
2. Amend § 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.]
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Agencies
[Federal Register Volume 81, Number 241 (Thursday, December 15, 2016)]
[Proposed Rules]
[Pages 90762-90771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29547]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: https://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 https://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 https://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 https://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 https://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 https://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 https://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 https://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 https://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
https://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 https://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
https://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 https://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