[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]



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 

AGENCY: Fish and Wildlife Service, Interior.

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


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 

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

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


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 
    To issue a final rule to implement this proposed action, we will 
take into consideration all comments and any additional information we 
receive. Such communications may lead to a final rule that differs from 
this proposal. All comments, including commenters' names and addresses, 
if provided to us, will become part of the supporting record.
    We are specifically requesting comments on:
    (1) New information on the historical and current status, range, 
distribution, and population size of the black-capped vireo, including 
the locations of any additional populations.
    (2) New information on the known and potential threats to the 
black-capped vireo.

[[Page 90763]]

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

Public Hearing

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

Peer Review

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


    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 

[[Page 90764]]

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

Species Description and Needs

    The black-capped vireo is a migratory songbird that breeds and 
nests in south central Oklahoma, Texas, and the northern states of 
Mexico (Coahuila, Nuevo Le[oacute]n, Tamaulipas), and winters along 
Mexico's western coastal states. In general, black-capped vireo 
breeding habitat is categorized as shrublands and open woodlands.
    The resource needs of the black-capped vireo are described not only 
for individuals and populations, but also for the species rangewide in 
the SSA report. Life-history needs are generally categorized as 
breeding, feeding and sheltering; for migratory species this may also 
include habitat for migration and wintering. Individual black-capped 
vireos need a suitable breeding habitat patch of at least 1.5 hectares 
(ha) (3.7 acres (ac)) of shrublands with between 35 and 55 percent 
shrub cover that consists largely of deciduous shrubs, often oaks in 
mesic areas, and with a low proportion of junipers. Within breeding 
habitat patches, shrubs mottes (groups of shrubs) with deciduous 
foliage from ground level to 3 meters (0 to 9.8 feet) in height are 
needed for nest concealment and foraging.
    Populations of black-capped vireos are described based on the 
number of adult males the breeding habitat can support. Those sites 
(defined as geographical areas with suitable breeding habitat) capable 
of supporting at least 30 adult males are considered ``manageable 
populations.'' Those sites with suitable breeding habitat capable of 
supporting 100 or more adult males are considered ``likely resilient 
populations,'' that have the ability to withstand disturbances of 
varying magnitude and duration. Brown-headed cowbird (Molothrus ater) 
parasitism rates below 40 percent (Tazik and Cornelius 1993, p. 46; 
Wilsey et al. 2014, p. 568) are necessary to sustain and expand vireo 
    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 

[[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. 
    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 
    (3) Sufficient and sustainable area and habitat on the winter range 
exist to support the breeding populations outlined in (1) and (2).
    (4) All of the above have been maintained for at least 5 
consecutive years and available data indicate that they will continue 
to be maintained.
    When the recovery plan was approved in 1991, a viable population 
was estimated, using population viability analysis, to be at least 500 
pairs of breeding black-capped vireos. The recovery plan was intended 
to protect and enhance the populations known at that time, while 
evaluating the possibility of recovery and developing the necessary 
delisting criteria if recovery is found to be feasible. The rangewide 
population was unknown, but the Oklahoma population was thought to be 
fewer than 300 individual birds. During the 2007 5-year review of the 
status of the species, it was determined that the 1991 recovery plan 
was outdated and did not reflect the best available information on the 
biology of the species and its needs (USFWS 2007, p. 5). Therefore, 
rather than use the existing outdated recovery criteria, the Service 
assessed the species' viability, as summarized in the SSA report 
(Service 2016; available at http://www.regulations.gov, Docket No. FWS-
R2-ES-2016-0110) to inform the process of making the determination that 
the black-capped vireo has recovered.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing species, reclassifying 
species, or removing species from listed status. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1) of the Act: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence. A species may be 
reclassified or delisted on the same basis. Consideration of these 
factors was incorporated in the SSA report (Service 2016; available at 
http://www.regulations.gov, Docket No. FWS-R2-ES-2016-0110) as ``causes 
and effects,'' and projected in future scenarios to evaluate viability 
of the black-capped vireo. The effects of conservation measures 
currently in place were also assessed as part of the current condition 
of the species in the SSA report and those effects were projected in 
future scenarios.

Causes and Effects

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

Habitat Loss (Factor A)

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

[[Page 90767]]

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

Winter Range (Factor A)

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

Brood Parasitism (Factor E)

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

Climate Change (Factor E)

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

Species Future Conditions and Viability

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

[[Page 90768]]

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

Finding and Proposed Determination

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

[[Page 90769]]

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

Significant Portion of the Range Analysis

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

[[Page 90770]]

dispersal distance of a banded nestling re-sighted as a breeding adult 
was 78 km (48.5 mi) (Cimprich et al. 2009, entire). The known 
populations of black-capped vireos are geographically spread widely 
across the species' historical range and habitat types, ensuring that 
the global population is not singular and isolated. Additionally, the 
known distribution demonstrates robust representation when considering 
genetic heterozygosity and lack of genetic structuring across these 
    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.


    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 

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 
    We will coordinate with other Federal agencies, State resource 
agencies, interested scientific organizations, and others as 
appropriate to develop and implement an effective post-delisting 
monitoring (PDM) plan for the black-capped vireo. We plan to publish a 
notice of availability of a draft PDM plan by June 30, 2017 and include 
the final PDM plan should this proposed delisting be finalized. The PDM 
plan will build upon current research and effective management 
practices that have improved the status of the species since listing. 
Ensuring continued implementation of proven management strategies, such 
as prescribed fire and cowbird control, that have been developed to 
sustain extant populations will be a fundamental goal for the PDM plan. 
The PDM plan will identify measurable management thresholds and 
responses for detecting and reacting to significant changes in the 
black-capped vireo's populations, distribution, and persistence. If 
declines are detected equaling or exceeding these thresholds, the 
Service, in combination with other PDM participants, will investigate 
causes of these declines, including considerations of habitat changes, 
substantial human persecution, stochastic events, or any other 
significant evidence. The investigation will be to determine if the 
black-capped vireo warrants expanded monitoring, additional research, 
additional habitat protection, or resumption of Federal protection 
under the Act.

Required Determinations

Clarity of the Rule

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

National Environmental Policy Act

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

[[Page 90771]]

defined under the authority of the National Environmental Policy Act of 
1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection with 
regulations pursuant to section 4(a) of the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244).

References Cited

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


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

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:


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]

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

    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.]