[Federal Register Volume 88, Number 84 (Tuesday, May 2, 2023)]
[Proposed Rules]
[Pages 27427-27430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09025]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0043; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BD13


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Black-Capped Petrel With a Section 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; document availability and reopening of comment 
period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on our October 9, 2018, proposed 
rule to list the black-capped petrel (Pterodroma hasitata) as a 
threatened species under the Endangered Species Act of 1973, as amended 
(Act), with a rule issued under section 4(d) of the Act to provide for 
the conservation of this species. We are reopening the comment period 
to present significant new information we have received since 2018 that 
is relevant to our consideration of the status of the black-capped 
petrel and allow interested parties to comment. Comments submitted 
during the 2018 comment period do not need to be resubmitted and will 
be fully considered in preparation of our final rule. We encourage 
those who may have commented previously to submit additional comments, 
if appropriate, in light of this new information.

DATES: The comment period for the proposed rule published on October 9, 
2018, at 83 FR 50560 is reopened. We will accept comments received or 
postmarked on or before June 1, 2023. Comments submitted electronically 
using the Federal eRulemaking Portal (see ADDRESSES, below) must be 
received by 11:59 p.m. eastern time on the closing date.

ADDRESSES: 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-R4-ES-2018-0043, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R4-ES-2018-0043, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, below, for more information).
    Availability of supporting materials: Supporting materials 
including the new information are available at https://www.regulations.gov at Docket No. FWS-R4-ES-2018-0043.

FOR FURTHER INFORMATION CONTACT: Edwin Mu[ntilde]iz, Field Supervisor, 
U.S. Fish and Wildlife Service, Caribbean Ecological Services Field 
Office, [email protected]; telephone 786-244-0081. Individuals in 
the United States who are deaf, deafblind, hard of hearing, or have a 
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION: 

Background

    On October 9, 2018, we proposed to list the black-capped petrel as 
a threatened species with a rule issued under section 4(d) of the Act 
to provide for the conservation of this species (83 FR 50560). Please 
refer to the 2018 proposed rule for information about the black-capped 
petrel, its status, its threats, and a summary of factors affecting the 
species. The proposed rule also includes detailed descriptions of 
previous Federal actions concerning this species. At the time of the 
proposed rule, we also publicly made available the Species Status 
Assessment (SSA) report that includes additional details regarding the 
species. The SSA report (version 1.1; Service 2018) can be found at 
https://www.regulations.gov, docket no. FWS-R4-ES-2018-0043, as 
Supporting and Related Materials.
    Since the 2018 proposed rule, we have received new or updated 
information regarding the black-capped petrel's life history, range, 
habitat, and factors influencing the species' viability. The 
information indicates the magnitude of threats is likely greater than 
we had previously assessed. A

[[Page 27428]]

description of the new information is provided below.

New Information

    New information associated with the species' occurrence at sea 
indicates an expansion of the species' range within the northern Gulf 
of Mexico. Recent sightings of individual black-capped petrels in the 
central and northeastern Gulf of Mexico show greater use of this marine 
region by the species than previously documented, resulting in a 
confirmed range expansion (Jodice et al. 2021, entire). Additionally, 
recent satellite tracking studies of individual black-capped petrels 
identified near-shore areas off the northern coast of Central and South 
America as areas where the species forages during the breeding season, 
and these areas may have previously been overlooked or underestimated 
(Leopold et al. 2019, entire).
    The new information also includes updated data on the amount and 
condition of the species' nesting areas. The black-capped petrel is 
known to nest only on the island of Hispaniola in high-elevation areas 
in Haiti and Dominican Republic. The currently known nesting areas 
include three in Haiti (Pic Macaya, Pic La Visite, and Morne Vincent) 
and three in Dominican Republic (Sierra de Bahoruco/Loma del Toro, 
Valle Nuevo National Park, and Loma Quemada). The amount of suitable 
nesting habitat is 70 percent less than what we previously estimated in 
2018 (Satg[eacute] et al. 2021, pp. 583-586). We also now have recent 
nesting data from survey results on Hispaniola for years beyond 2018; 
however, not all sites were surveyed each year (Brown and Jean 2020, 
entire; Brown and Jean 2021, entire; International Black-capped Petrel 
Conservation Group (IBPCG) 2019, pp. 2-4; IBPCG 2020, pp. 3-4; IBPCG 
2021, pp. 3-4; IBPCG 2022, pp. 3-4). Across all nesting colonies, the 
total number of breeding adults at each site is uncertain.
    The nesting colony at Pic Macaya in Haiti once accounted for 5 
percent of the total breeding population; however, the habitat 
conditions have deteriorated, and no nesting has been detected here in 
the past 20 years. Ongoing impacts to the species and its nesting 
habitat in this area include fires, invasive mammals, deforestation, 
and habitat loss (Goetz et al. 2012, p. 5; Wheeler et al. 2021, p. A2-
84), with up to 56 percent of total forest cover lost in the period 
2000-2018 (Satg[eacute] et al. 2021, p. 586). This site is considered 
extirpated, based on recent surveys that did not detect any nesting 
activity at this site.
    Pic La Visite in Haiti includes the most significant breeding 
colony of the black-capped petrel and includes nearly half of the total 
known breeding population for the species. In 2021, one study found low 
nest success with only 16 of 35 nests fledging a chick (Brown and Jean 
2021, pp. 2, 4). All known nests are concentrated in an area of roughly 
2.5 acre (ac) (1 hectare (ha)) (IBPCG 2021, entire; Wheeler et al. 
2021, pp. 10, A2-73). New information regarding the Pic La Visite 
nesting area indicates the ongoing deforestation due to agricultural 
encroachment is accelerating (Hedges et al. 2018, entire).
    The Morne Vincent nesting area in Haiti is approximately 32 ac (13 
ha) (Wheeler et al. 2021, p. A2-75). During the most recent surveyed 
nesting season (2020-2021), an 87 percent success rate was reported for 
the 15 nests monitored (Brown and Jean 2020, p. 3; IBPCG 2021, p. 4). 
The primary cause of nest failure is predation (Wheeler et al. 2021, p. 
16).
    The Loma del Toro nesting area is in the Sierra de Bahoruco of the 
Dominican Republic and is approximately 370 ac (150 ha) (Wheeler et al. 
2021, p. A2-77). Since 2018, cumulative monitoring of 95 petrel nesting 
attempts suggests that overall success rates (53 percent) are lower 
than the nearby Morne Vincent nesting area in Haiti (IBPCG 2018, 
entire; IBPCG 2019, entire; IBPCG 2020, entire; IBPCG 2021, entire). 
During the recent petrel nesting season (2021-2022), nest success 
estimated from the 23 nests monitored in this colony declined to 22 
percent (E. Rupp, Grupo Jaragua, in litt). Historical estimates of nest 
success in this area are unavailable prior to the introduction of 
exotic mammals into black-capped petrel habitat. Deforestation is 
occurring in the vicinity of the known black-capped petrel nesting 
area, where an 11 percent decrease in forest cover was documented from 
2000 through 2018 (Satg[eacute] et al. 2021, p. 583). Moreover, 
extensive forest fires and severe nest predation by stray dogs have 
occurred in this nesting area (IBPCG 2021, p. 1).
    Valle Nuevo National Park, Dominican Republic, was a suspected 
nesting area prior to 2017 when nesting was confirmed. To date, 13 
black-capped petrel nests have been identified within an area of 
approximately 35 ac (14 ha) (Wheeler et al. 2021, p. A2-81; IBPCG 2021, 
p. 4). As with all other black-capped petrel nesting colonies, petrels 
nesting in Valle Nuevo face the threats of agricultural activities, 
invasive mammals, habitat loss, and communication towers (Goetz et al. 
2012, p. 5; Wheeler et al. 2021, pp. 12-16), in addition to the 
increasing threat posed by encroachment of invasive ferns, which block 
access to nest sites (Wheeler et al. 2021, p. 14; Davis 2019, p. 58). 
All nests at Valle Nuevo failed to fledge young during both the 2020 
(n=13) and 2021 (n=17) nesting seasons, and predation by the invasive 
mongoose is believed to be the cause (IBPCG 2021, p. 4; E. Rupp, Grupo 
Jaragua, in litt).
    Loma Quemada, Dominican Republic, is the lowest elevation petrel 
nesting colony (Wheeler et al. 2021, p. A2-80). The habitat at Loma 
Quemada is similar to Loma del Toro, located approximately 12.4 mi (20 
km) to the west, and it shares many of the same threats from habitat 
loss and degradation, anthropogenic fires, and predation and nest 
destruction by invasive mammals such as feral pigs (Wheeler et al. 
2021, p. A2-80). As of October 2020, seven petrel nests have been 
discovered within the approximately 27-ac (11-ha) area. Two (29 
percent) of these nests fledged young during the 2020-2021 nesting 
season (IBPCG 2021, p. 4). In the previous (2019-2020) season, 33 
percent of nests (2 of 6) were successful (IBPCG 2020, p. 5). 
Preliminary data from the 2021-2022 season indicates a further decline 
in nest success to 17 percent (E. Rupp, Grupo Jaragua, in litt).
    The threats acting on the species on its breeding grounds on 
Hispaniola were described in detail in the proposed rule (83 FR 50560) 
and the SSA report (Service 2018, pp. 14-28). We received new 
information regarding invasive mammalian predators, harvesting of tree 
ferns, development, primary forest loss, terrestrial mining, coastal 
and offshore energy development, and climate change that provide a 
better understanding of the imminence and magnitude of the threats 
acting on the species and its habitat.
    Introduced mammals such as mongoose, dogs, cats, and pigs on the 
breeding grounds cause direct and indirect mortality to adult petrels 
and chicks on the nest. New information from camera trap studies near 
nest burrows shows the threat is more prevalent and imminent than 
previously described. Some of the survey results documented dogs and 
mongoose depredating black-capped petrel chicks and adults. Abandonment 
of an active petrel nest (i.e., a nest with an egg or chick) due to 
repeated incursions by a mongoose was recently documented in the 
Dominican Republic (IBPCG 2019, p. 4). Mongoose predation was observed 
between early March and late May, resulting in the mortality of at 
least seven petrel chicks in Valle Nuevo during the 2020-2021 breeding 
season

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(Grupo Jaragua 2021, pp. 3-4). No nests in Valle Nuevo were known to be 
successful over two recent seasons (2020 and 2021), largely due to 
mongoose predation (IBPCG 2021, p 1; E. Rupp, Grupo Jaragua, in litt).
    Recent camera trapping in the Pic La Visite colony showed that a 
single dog depredated 18 of 35 known active nests in 2021 (Brown and 
Jean 2021, pp. 4-5). At least nine dogs also killed at least 11 adult 
black-capped petrels during the 2020-2021 breeding season (Brown and 
Jean 2021, p. 5; Satg[eacute] 2021, p. 2; Grupo Jaragua 2021, p. 2).
    Feral cats also affect the petrels on their nesting grounds. The 
recent loss of at least nine active petrel nests in the Dominican 
Republic was attributed to a single feral cat (IBPCG 2019, p. 4). 
Across the nesting sites that have been surveyed in Haiti and Dominican 
Republic, new information indicates the threat of introduced mammals on 
the black-capped petrel is more imminent than described in the 2018 
proposed rule. The magnitude of this threat is greater than previously 
documented with potential catastrophic effects to reproduction during a 
nesting season.
    In petrel nesting areas of Haiti, harvesting of tree ferns to sell 
as substrate for ornamental plants has increased (A. Brown, in litt.). 
This activity disrupts and destabilizes soil in the vicinity of nest 
burrows, directly disturbing nests and potentially leading to burrow 
collapse. At least 14 active nests at 1 site were destroyed during the 
2020-2021 nesting season due to tree fern harvesting activities (Brown 
and Jean 2021, p. 4).
    We have new information associated with development on Hispaniola, 
particularly around Pedernales, Dominican Republic, a coastal area 
along the southwestern border of Dominican Republic and Haiti (DGAPP 
2021, entire). Construction has begun on a large-scale development that 
will include an international airport, hotels, roads, and other 
infrastructure associated with tourism and recreation. This development 
is about 18 mi (29 km) from two nesting areas (Loma del Toro and Loma 
Quemada) and is along the petrel's flight path between nesting and 
foraging areas at sea. Impacts to the species may include those 
associated with artificial lighting and collisions with structures and 
aircraft.
    Loss and degradation of nesting habitat due to deforestation 
continues to be one of the most significant and persistent threats to 
the black-capped petrel (Goetz et al. 2012, entire; Wheeler et al. 
2021, pp. 12-16). Primary mechanisms of deforestation in the region 
include urbanization, clearing of land for pastures or agriculture, 
felling of trees for building materials, and charcoal production. 
Estimates of current deforestation, which were considered in our 2018 
proposed rule, on Hispaniola range from over 90 percent for the Haitian 
portion to slightly less than 90 percent for the Dominican Republic 
portion (Castro et al. 2005, p. 7; Simons et al. 2013, p. S31; Churches 
et al. 2014, entire). Deforestation in the Haitian nesting areas is 
particularly significant for the black-capped petrel, given that up to 
70 percent of all active nest sites of the species occur within Haiti 
(Goetz et al. 2012, p. 5; Wheeler et al. 2021, p. 10). New information 
projects that all primary forests within Haiti are to be lost by 2035 
(Hedges et al. 2018, entire).
    Recent quantitative assessments of deforestation in the Dominican 
Republic also indicate that the rate of deforestation in and around 
petrel nesting colonies and areas of suitable nesting habitat has 
accelerated in recent years, ranging from 3.8 percent to 56 percent in 
the period 2000-2018 (Lloyd and Leon 2019, p. 5; Satg[eacute] et al. 
2021, p. 583). We also received new information regarding deforestation 
due to fires in the Dominican Republic. The frequency and intensity of 
fires in and around petrel nesting areas has increased in recent years, 
further exacerbating and contributing to deforestation and habitat 
degradation in the region (Batlle and Ramon 2021, p. 36; IBPCG 2021, p. 
1). The impacts from forest fires create conditions for invasive plant 
species, such as the terrestrial fern (Dicranopteris pectinata), to 
colonize and block access to nesting substrate and burrows (Wheeler et 
al. 2021, p. 14).
    New information has been provided regarding mining of rare earth 
elements (REE) on Hispaniola. ``Economically significant'' amounts of 
REE were recently discovered in Sierra del Bahoruco, Dominican 
Republic, in association with former bauxite mines and adjacent areas 
within 5 mi (8 km) of the Loma Quemada nesting area (Proenza et al. 
2017, p. 1321; Proenza et al. 2021, p. 21). These products are in high 
demand globally, as they are essential for production of numerous 
modern technologies, including cell phones, solar cells, and electric 
vehicles (Dutta et al. 2016, p. 183; Proenza et al. 2017, p. 1321). 
Global demand of REE is increasing at the rate of 5 percent per year, 
requiring a steady and dependable supply of these minerals in the 
future (Dutta et al. 2016, p. 184). At the time of our 2018 proposal, 
we noted that the rapidly increasing global demand for REE, and the 
substantial economic importance of the mining sector to the Dominican 
Republic, likely foretold a resurgence and expansion of large-scale 
mineral exploration and extraction in the region (Dutta et al. 2016, p. 
185; Redwood 2015, p. 12). Since that time, the Government of the 
Dominican Republic established the ``Reserva Fiscal [Aacute]vila'', an 
area of 36,744 ac (14,876 ha) designated for the exploration, 
evaluation, and development of REE reserves in the Sierra del Bahoruco 
(Proenza et al. 2021, p. 22). This area is approximately 3 miles (5 km) 
from the Loma Quemada nesting area.
    We also received new information regarding planned offshore wind 
energy projects that fall within the black-capped petrel's range. An 
area currently proposed for development off the coast of North Carolina 
overlaps with the species' core foraging area along the Gulf Stream and 
nutrient-rich waters (Avangrid 2022, p. 5). Future wind energy 
development in the Gulf of Mexico is anticipated. Studies have been 
completed to identify areas for potential renewable energy development; 
Texas and Louisiana have some of the highest wind capacity in the 
northern Gulf of Mexico (BOEM 2022a, entire; BOEM 2022b, entire). 
Offshore wind projects may affect the species through collisions with 
turbines, artificial lighting, displacement, and disturbance to the 
marine environment and prey species near turbines. For example, changes 
in turbidity may influence predator-prey interactions, with predators 
being attracted and prey avoiding affected areas (Van Berkel et al. 
2020, pp. 113-114).
    Offshore oil and gas activity may also affect the species while on 
its foraging grounds at sea. Extensive oil and gas activity occurs in 
the northern Gulf of Mexico. With the expansion of the species' 
documented range to include this area, the species may be at greater 
risk of encountering impacts from oil and gas activities than 
previously described (Satg[eacute] et al. 2019, entire).

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed rule to list the black-capped 
petrel as a threatened species. We will consider information from all 
interested parties. We intend that any final action resulting from this 
proposed rule will be based on the best scientific and commercial data 
available and be as accurate and as effective as possible. Therefore, 
we request comments or information from other governmental agencies, 
Native American Tribes, the scientific community, industry, or any 
other interested parties concerning the new

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information associated with this proposed rule.
    We particularly seek comments concerning new information presented 
in this Federal Register document and its relationship to the status of 
the black capped petrel and any other information. Please include 
sufficient information with your submission (such as scientific journal 
articles or other publications) to allow us to verify any scientific or 
commercial information you include. We encourage those who may have 
commented previously to submit additional comments, if appropriate, in 
light of this new information.
    Comments should be as specific as possible. Please note that 
submissions merely stating support for, or opposition to, the action 
under consideration without providing supporting information, although 
noted, do not provide substantial information necessary to support a 
determination. Section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or a 
threatened species must be made solely on the basis of the best 
scientific and commercial data available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Because we will consider all comments and information we receive 
during the comment period, our final determination may differ from the 
proposal. Based on the new information we receive (and any comments on 
that new information), we may conclude that the species is endangered 
instead of threatened, or we may conclude that the species does not 
warrant listing as either an endangered species or a threatened 
species. In addition, we may change the parameters of the prohibitions 
or the exceptions to those prohibitions in the 4(d) rule if we conclude 
it is appropriate in light of comments and new information received. 
For example, we may expand the prohibitions to include prohibiting 
additional activities if we conclude that those additional activities 
are not compatible with conservation of the species. Conversely, we may 
establish additional exceptions to the prohibitions in the final rule 
if we conclude that the activities would facilitate or are compatible 
with the conservation and recovery of the species.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov at Docket No. FWS-R4-ES-
2018-0043 and upon request from the Caribbean Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

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

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-09025 Filed 5-1-23; 8:45 am]
BILLING CODE 4333-15-P