[Federal Register Volume 88, Number 248 (Thursday, December 28, 2023)]
[Rules and Regulations]
[Pages 89611-89626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28456]


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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 245]
RIN 1018-BD13


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Black-Capped Petrel

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered species status under the Endangered Species Act of 1973 
(Act), as amended, for the black-capped petrel (Pterodroma hasitata), a 
pelagic seabird species that nests on the island of Hispaniola and 
spends the rest of its life at sea. The species forages in high 
concentration off the coast of North Carolina; however, the marine 
range extends across much of the western Atlantic (Nova Scotia to 
Venezuela) and into the Caribbean Sea and northern Gulf of Mexico. This 
rule extends the protections of the Act to the black-capped petrel.

DATES: This rule is effective January 29, 2024.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R4-ES-2018-0043.
    Supporting materials we used in preparing this rule, such as the 
species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-R4-ES-2018-0043.

FOR FURTHER INFORMATION CONTACT: Jos[eacute] Cruz-Burgos, Fish and 
Wildlife Biologist, U.S. Fish and Wildlife Service, Caribbean 
Ecological Services Field Office; email: [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: 

Executive Summary

    Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et 
seq.), a species warrants listing if it meets the definition of an 
endangered species (in danger of extinction throughout all or a 
significant portion of its range) or a threatened species (likely to 
become endangered within the foreseeable future throughout all or a 
significant portion of its range). If we determine that a species 
warrants listing, we must list the species promptly and designate the 
species' critical habitat to the maximum extent prudent and 
determinable. We have determined that the black-capped petrel meets the 
Act's definition of an endangered species; therefore, we are listing it 
as such. Listing a species as an endangered or threatened species can 
be completed only by issuing a rule through the Administrative 
Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. This rule lists the black-capped petrel 
(Pterodroma hasitata) as an endangered species under the Act.

[[Page 89612]]

    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the black-capped petrel is 
an endangered species due to the following threats: habitat loss due to 
deforestation and forest fires (Factor A) and predation by nonnative 
mammals (Factor C). Other factors that affect the species now to a 
lesser degree or could affect the species in the future include 
development (Factor A), offshore oil and gas infrastructure and 
activities (Factor E), offshore and coastal wind energy infrastructure 
and activities (Factor E), collisions with communication towers (Factor 
E), and disorientation and grounding due to artificial lighting (Factor 
E). The effects of climate change are also expected to affect the 
species through increased storm intensity and frequency, resulting in 
flooding of burrows and erosion of suitable nesting habitat (Factor E). 
Historically, human predation for consumption (Factor B) and natural 
disasters (Factor E), such as earthquakes and volcanic eruptions, 
affected the viability of the species.

Previous Federal Actions

    On October 9, 2018, we published in the Federal Register (83 FR 
50560) a proposed rule to list the black-capped petrel as a threatened 
species with a rule issued under section 4(d) of the Act. Please refer 
to that proposed rule for a detailed description of previous Federal 
actions concerning this species.
    On May 2, 2023, we published in the Federal Register (88 FR 27427) 
a document reopening the comment period on the October 9, 2018, 
proposed rule as a result of significant new information we received 
after the publication of the 2018 proposal that is relevant to our 
consideration of the status of the black-capped petrel. That document 
described the new information and requested comments on it, as well as 
on all other aspects of our proposal to list the black-capped petrel.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the black-capped petrel. The SSA team was composed of Service 
biologists, in consultation with other black-capped petrel experts. The 
SSA report represents a compilation of the best scientific and 
commercial data available concerning the status of the species, 
including the impacts of past, present, and future factors (both 
negative and beneficial) affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the 2018 black-capped petrel SSA 
report. We sent the 2018 SSA report to three independent peer reviewers 
and received responses from all three; we incorporated the results of 
that review into the SSA report, as appropriate. More recently, we 
solicited independent scientific review of the 2023 black-capped petrel 
SSA report. We sent the 2023 SSA report to five peer reviewers and 
received responses from three; we incorporated the results of the peer 
review into the 2023 SSA report, as appropriate. The peer reviews can 
be found at https://www.regulations.gov. In preparing the proposed rule 
and this final rule, we incorporated the results of these reviews, as 
appropriate, into the SSA report, which was the foundation for the 
proposed rule (version 1.1, Service 2018) and this final rule (version 
1.3, Service 2023).

Summary of Changes From the Proposed Rule

    We considered all relevant substantive comments we received on the 
October 9, 2018, proposed rule, and we incorporate new information into 
this final rule that was not available when the proposed rule 
published. We discussed the new information in the document we 
published on May 2, 2023 (88 FR 27427); that document made the new 
information available to the public and reopened the comment period on 
the proposed listing of the black-capped petrel.
    After reviewing the new information we made available in the 
document we published on May 2, 2023 (88 FR 27427), we have determined 
that the black-capped petrel meets the Act's definition of an 
endangered species. Information provided during the public comment 
periods on the October 9, 2018, proposed rule and new science made 
available after the proposal's publication in 2018 provided additional 
data that were analyzed and considered in the updated SSA report 
(version 1.3, Service 2023). The new information demonstrates that the 
threats acting on the species are more imminent, thus indicating a 
lower overall viability, i.e., current condition, of the species.
    Updated habitat suitability models indicate there is 70 percent 
less available nesting habitat than was calculated for the October 9, 
2018, proposed rule (Satg[eacute] et al. 2021, entire). Additionally, 
the loss of primary forests on Haiti is accelerating at a greater rate 
than previously described (Hedges et al. 2018, entire).
    In this rule, we also provide updated information on the conditions 
of nesting areas on Hispaniola and the more rapid declines in nesting 
activity and reproductive success than were described in the October 9, 
2018, proposed rule. Further, we present information that shows the 
nesting population of the Pic Macaya, Haiti, area is now extirpated.
    We have new information on the threats acting on the species on 
Hispaniola, including more documented occurrences of predation by 
nonnative species; impending development near Pedernales, Dominican 
Republic; and terrestrial mining of rare earth minerals (Service 2023, 
pp. 60-61). These threats are contributing to a reduction in the 
resiliency of the nesting populations on Hispaniola.
    New information gathered and evaluated since the publication of the 
October 9, 2018, proposed rule includes confirmed occurrences of black-
capped petrels in the northern Gulf of Mexico, which extends the known 
range to include the northern Gulf of Mexico (Jodice et al. 2021, 
entire). In addition, recent records of individual black-capped petrels 
in the central and northeastern Gulf of Mexico show greater use of this 
marine region by the species than was previously documented, resulting 
in a larger range than previously described (Jodice et al. 2021, 
entire). Further, 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).
    Additionally, in the October 9, 2018, proposed listing rule, we 
determined the designation of critical habitat for the species to be 
not prudent. After considering public comments we received, new 
information on the threats acting on the black-capped petrel at sea, 
and our regulations at 50 CFR 424.12(a) regarding when the Secretary of 
the Interior (Secretary) may, but is not required to, determine that a 
critical habitat designation would not be

[[Page 89613]]

prudent (see 84 FR 45020; August 27, 2019), we now find that 
designating critical habitat for the black-capped petrel is prudent, 
but not determinable at this time. Critical habitat is not determinable 
because the data sufficient to perform the required consideration of 
economic impacts are lacking at this time.
    Finally, since we are listing the black-capped petrel as an 
endangered species, the rulemaking process to establish regulations 
that are necessary and advisable to provide for the conservation of a 
threatened species under section 4(d) of the Act no longer applies. 
When a species is listed as an endangered species, protections are 
automatically extended to that species under section 9 of the Act.

Summary of Comments and Recommendations

    In our October 9, 2018, proposed rule (83 FR 50560), we requested 
that all interested parties submit written comments on the proposal by 
December 10, 2018. We also contacted appropriate Federal and State 
agencies, scientific experts and organizations, and other interested 
parties and invited them to comment on the proposal. Newspaper notices 
inviting general public comment were published in the Primera Hora 
(Puerto Rico), and Virginia Pilot (Virginia-Carolinas). We did not 
receive any requests for a public hearing. Later, on May 2, 2023, we 
published in the Federal Register (88 FR 27427) a document reopening 
the proposed rule's comment period and providing new information 
received since the publication of the proposed rule. We published this 
document to allow the public the opportunity to review the new 
information and provide comments prior to our final determination on 
the proposed action. We requested comments to be submitted on the new 
information by June 1, 2023. All substantive information received 
during both comment periods has been incorporated directly into the SSA 
report or this final determination, or is addressed below.

Peer Reviewer Comments

    As discussed above under Peer Review, peer reviewer comments were 
incorporated into version 1.1 of the SSA report as appropriate, which 
served as the foundation for the October 9, 2018, proposed rule (83 FR 
50560).
    After revising version 1.1 of the SSA report to include new 
information, we provided version 1.3 of the SSA report to five 
independent peer reviewers and received responses from three. We 
reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding the information 
contained in version 1.3 of the SSA report.
    The peer reviewers generally concurred with our methods and 
conclusions and provided support for thorough and descriptive 
narratives of assessed issues, additional information, clarifications, 
and suggestions to improve the final SSA report. Peer reviewer comments 
are incorporated into version 1.3 of the SSA report (Service 2023, 
entire) and addressed below.
    (1) Comment: One peer reviewer provided input regarding an 
increased risk from activities associated with offshore wind energy 
development in the Central Atlantic, as more areas have been proposed 
for offshore wind energy development. The peer reviewer stated there 
are several areas off the coast of North Carolina and Virginia, if 
developed, that would pose substantial collision risks to the petrels 
that may use this area outside the breeding season.
    Our response: Impacts of wind energy development and infrastructure 
were included in the SSA report (version 1.3, Service 2023) and 
considered in the evaluation for this final listing rule.
    (2) Comment: One peer reviewer sought clarification regarding the 
definition of the exclusive economic zone (EEZ) and noted that Federal 
jurisdiction does not extend beyond the EEZ.
    Our response: The U.S. EEZ includes waters that are no more than 
200 nautical miles (nmi) (370.4 km) from the territorial sea baseline; 
it begins at the 12 nmi (22.2 km) territorial sea of the U.S., its 
Territories, and Commonwealths. U.S. jurisdiction to manage resources 
is within the EEZ but does not extend beyond the 200 nmi border. 
However, under Section 9 of the Act (codified at 50 CFR 17.21), it is 
unlawful for any person subject to the jurisdiction of the United 
States to (A) import any such species into, or export any such species 
from the United States; (B) take any such species within the United 
States or the territorial sea of the United States; and (C) take any 
such species upon the high seas (emphasis added). Therefore, while U.S. 
jurisdiction to manage resources extends only to the edge of the U.S. 
EEZ, the Act's prohibition of take applies to any person subject to the 
jurisdiction of the U.S. on the high seas.
    (3) Comment: One peer reviewer noted that the impacts to black-
capped petrels by a large oil spill in the Gulf of Mexico would be 
difficult to document, such as in the case of the Deepwater Horizon 
spill in 2010. If petrels expired at sea, oceanic currents, tidal 
regimes, and wind regimes would make shoreline deposition and carcass 
detection difficult.
    Our response: We recognize the difficulty of recovering and 
documenting animals in the offshore environment due to variable 
environmental and oceanographic influences. With the black-capped 
petrel's range now including a portion of the northern Gulf of Mexico, 
the risk of an accidental oil spill affecting the species is dependent 
on the amount of offshore petroleum structures and activities. The 
effects of an accidental oil spill depend on the timing of the spill, 
location of the spill, type of product spilled, and amount of product 
spilled. The severity and magnitude of the effects of accidental oil 
spills on the black-capped petrel cannot be quantified for this 
assessment due to the variable nature of each spill event. Accidental 
oil spills can be catastrophic but are not considered a persistent 
threat acting on the species due to the variable nature of an 
individual spill. In version 1.3 of the SSA report, we address the 
potential impact to the species from contact with oil and include a 
discussion of the species' overlap with the Deepwater Horizon oil 
spill's footprint in the northern Gulf of Mexico (Service 2023, pp. 29-
30). We also include the information provided by the commenter in 
version 1.3 of the SSA report (Service 2023, pp. 29-30).
    (4) Comment: One peer reviewer noted that the marine fisheries 
section in the SSA report seems to focus on mortality to petrels from 
fisheries, but asked why there was not a discussion about a reduction 
in or change of prey due to fisheries. They noted that this has been 
documented for the Hawaiian petrel (Pterodroma sandwichensis) (Wiley et 
al. 2013, entire).
    Our response: While the Hawaiian petrel and black-capped petrel are 
congeners and may share similar responses to environmental changes, the 
best available information does not indicate that there is prey 
reduction or a change in prey due to fisheries in the black-capped 
petrel's range.
    (5) Comment: One peer reviewer suggested we include information 
indicating it is likely the species breeds in Dominica and possibly in 
Guadeloupe.
    Our response: We recognize the potential for the species to breed 
on Dominica and Guadeloupe, and we are aware of ongoing surveys to 
determine the species' occurrence on additional Caribbean islands other 
than Hispaniola. At this time, however, there

[[Page 89614]]

is no confirmed evidence the black-capped petrel is nesting on Dominica 
or Guadeloupe, and the species is considered extirpated on both 
islands.

Comments From States on the Proposed Rule

    (6) Comment: The North Carolina Wildlife Resources Commission 
(NCWRC) offered collaboration opportunities for data and support if the 
species is listed. The agency also noted the importance to the species 
of the offshore areas between Cape Lookout and Nags Head, North 
Carolina, with peaks in usage during the spring and fall.
    Our response: We value our partnerships and continued cooperation 
with State agencies to improve the science and recovery of listed 
species. The information regarding the area of high concentration for 
foraging off the coast of North Carolina is included in the SSA report 
describing the marine habitat of the black-capped petrel (Service 2023, 
pp. 4-8). The report emphasizes the importance of this area off the 
eastern United States for black-capped petrel foraging.

Public Comments

    (7) Comment: Two commenters requested justification for the 
threatened status when black-capped petrel abundance is much lower than 
several similar species that were listed as endangered species, such as 
the Hawaiian petrel, band-rumped storm-petrel (Hydrobates castro), 
Bermuda petrel (Pterodroma cahow; listed with the common name 
``cahow''), and whooping crane (Grus americana).
    Our response: Determinations of whether or not a species warrants 
listing as an endangered or a threatened species under the Act are 
species-specific. They are based on the best available science, after 
considering the species' life history and the factors listed in section 
4(a)(1) of the Act that may impact the species as well as how the 
species may respond to those factors. Accordingly, we can reach 
different determinations for similar species, depending on the 
circumstances. However, after review of new information, we have 
determined that the black-capped petrel meets the Act's definition of 
an endangered species.
    (8) Comment: One commenter noted that species' representation was 
described in the SSA report, version 1.1, as having a 43 percent 
reduction in geographic representation. The commenter provided 
information that densities of nests are much lower today than 
historically and that change in density should be factored into the 
current condition analysis.
    Our response: We did not consider nest densities in the 
representation analysis, but we applied the available information 
regarding nest densities in our analysis of the species' resiliency. We 
assessed representation as the limited current distribution on a single 
island compared to historically, when the species was geographically 
represented more broadly across at least three other islands in the 
Caribbean (Dominica, Guadeloupe, and Martinique) (Service 2023, pp. 53-
61).
    (9) Comment: Several commenters stated that the Service did not 
consider current threats related to major shipping lanes that overlap 
with the species' foraging habitat, which currently exposes individuals 
to the presence of contaminants from the shipping industry (Halpern et 
al. 2008, entire).
    Our response: We discuss the effects of certain contaminants under 
Offshore Oil and Gas on black-capped petrel below, however, we did not 
specifically identify contaminants from the shipping industry as a 
threat to the species. Future updates to the SSA report could include 
this factor if more information becomes available.
    (10) Comment: One commenter noted information in the proposed rule 
described the species' specific needs and preferences for the offshore 
habitat elements as relatively flexible, plentiful, and widely 
distributed, and as stated there are no habitat-based threats to the 
species in the foraging range. The commenter was concerned the 
importance of specific areas in the offshore range was not recognized. 
They noted that the SSA report mentions that the offshore region from 
southern Florida to Cape Hatteras, North Carolina, is the only marine 
area where regular and sizable concentrations of the species occur. 
They add that Simons et al. (2013, p. S23) specify that ``apparently 
most of the world's population of black-capped petrels forages off the 
coast of the southeastern [United States], making this area important 
for the survival of the species.'' The commenter notes that other 
possible concentrations do not diminish the importance of the foraging 
area off the southeastern United States.
    Our response: We did not intend to diminish the importance of the 
species' foraging area off the southeastern United States. We recognize 
the importance of this area for prey and foraging. We describe a core 
foraging area along the outer continental shelf off Cape Hatteras, 
North Carolina, where there is a steep shelf that contributes to 
nutrient-rich waters from upwelling that contain a concentration of 
prey. While this is the primary foraging area of the species, this is 
not the only area where the species forages, as black-capped petrels 
have been found in waters off the eastern coast of North America from 
latitude 40[deg] N (approximately New Jersey) south to latitude 10[deg] 
N (approximately northern South America). Additionally, new information 
associated with the species' occurrence at sea indicates an expansion 
of the species' range within the northern Gulf of Mexico.
    (11) Comment: One commenter noted the proposed rule states that the 
impact of terrestrial wind farms on nesting petrels is unquantified. 
The commenter indicated that while there are problems with quantifying 
the impacts of terrestrial wind farms, the impact on nesting petrels 
has been quantified. They provided the example of multiple terrestrial 
wind energy habitat conservation plans in Hawaii where the Service 
participated in quantifying the numbers of nesting Hawaiian petrels and 
Newell's shearwaters (Puffinus newelli) allowed to be taken by 
incidental take permits.
    Our response: We have included the information regarding impacts 
from wind energy on the Hawaiian petrel in the SSA report (Service 
2023, p. 26) and considered the relevant information in our analyses 
presented in this final rule.
    (12) Comment: One commenter mentioned that entities under U.S. 
jurisdiction (i.e., Texas Petroleum Company for Chevron Texaco 
Petroleum Company) use the high seas and the southern Caribbean waters 
(such as Colombia) for oil extraction. The commenter questioned whether 
regulations implementing the Act apply in the U.S. EEZ.
    Our response: Presidential Proclamation 5030 (48 FR 10605; March 
14, 1983) from 1983 defines the United States' jurisdictional waters as 
the EEZ of the United States. The EEZ Proclamation confirms U.S. 
sovereign rights and control over the living and non-living natural 
resources of the seabed, subsoil and superjacent waters beyond the 
territorial sea but within 200 nautical miles of the United States 
coasts. NOAA's Office of Coast Survey, U.S. Maritime Limits and 
Boundaries website provides a detailed description (NOAA 2023, entire). 
The northern portion of the Gulf of Mexico is within U.S. jurisdiction; 
however, the southern Gulf of Mexico and the high seas are outside of 
that EEZ boundary. The protections of the Act apply in the EEZ, with 
the Service responsible for the management of bird species within U.S. 
jurisdiction, including the U.S. EEZ.

[[Page 89615]]

Additionally, the prohibitions of section 9(a)(1) of the Act, codified 
at 50 CFR 17.21, make it illegal for any person subject to the 
jurisdiction of the United States to take endangered wildlife within 
the United States or on the high seas.
    (13) Comment: One commenter expressed concern that we did not 
include a description of survival of the different life stages of the 
black-capped petrel, including juveniles and immature petrels. They 
describe the survival of younger birds at sea as being lower in the 
first few years of life.
    Our response: We were unable to quantify or describe the species' 
survival at sea based on age and concur with the commenters statement 
that younger seabirds in general do have a lower survival at sea than 
mature birds due to lack of foraging experience (Beauchamp 2022, 
entire). We did represent survival of the age classes in the nest 
success and nesting survival rate (Service 2023, p. 13).
    (14) Comment: One commenter requested clarification regarding the 
age of maturity and generation times that were used in the SSA report. 
They expressed concern that our description of 5 years to maturity 
contradicts other papers that provide a range of 5 to 8 years. The 
commenter asserted that the age of maturity and generation times vary 
among sources and that these nuances are not discussed in the proposed 
rule.
    Our response: We describe the age of sexual maturity, or first 
breeding, for black-capped petrels at 5 to 8 years based on the best 
available science (Goetz et al. 2012, p. 5; Simons et al. 2013, p. S22; 
Service 2023, p. 52). This is consistent with information that 
describes the age of sexual maturity is 5.3 years for the order 
Procellariiformes, in general (Hamer et al. 2002, p. 247).

I. Final Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
black-capped petrel (Pterodroma hasitata) is presented in the SSA 
report (Service 2023, entire); available at https://www.fws.gov/program/southeast-region and at https://www.regulations.gov under 
Docket No. FWS-R4-ES-2018-0043.
    The black-capped petrel is a pelagic seabird that is in the order 
Procellariiformes, family Procellariidae. It is a medium-sized seabird 
in the Pterodroma or gadfly genus with long slender wings and markings 
of a black cap and dark mantle separated by a white collar. The wings 
are black or darker in color on the top surface as well as the edges of 
the underwing. Certain morphological characteristics may vary across 
the species with ``black-faced,'' ``white-face,'' and ``intermediate'' 
variations of the species having different plumage coloration and 
patterns (Howell and Patteson 2008, p. 70).
    The estimated breeding population size for black-capped petrels is 
between 500 to 1,000 breeding pairs (Simons et al. 2013, p. S22; 
BirdLife International 2022, unpaginated). Petrels tend to maintain a 
strong relationship with their breeding grounds and return to the same 
nesting areas each year (Warham 1990, pp. 231-234). This site fidelity 
of nesting birds tends to isolate breeding populations and can 
influence genetic, behavioral, and morphological variation due to 
limited genetic exchange.
    Black-capped petrels currently breed only in the highest elevations 
on the island of Hispaniola; recent nesting areas included three sites 
in Haiti (Pic Macaya, Pic La Visite, and Morne Vincent) and three sites 
in Dominican Republic (Sierra de Bahoruco/Loma del Toro, Valle Nuevo 
National Park, and Loma Quemada). The Pic Macaya site is likely 
extirpated. The Morne Vincent and Loma del Toro sites are physically 
contiguous areas and ecologically the same nesting area but are on 
different sides of the border between Haiti and Dominican Republic. In 
the proposed rule, the Loma Quemada site was included with the Loma de 
Toro site, as they are both within the Sierra de Bahoruco. Therefore, 
effectively, there are only four current active nesting sites. 
Historically, the species also nested in Martinique, Dominica, 
Guadeloupe, and, possibly, Cuba (Simons et al. 2013, pp. S11-S19). 
Currently, nearly 50 percent of the known nests are found within Parc 
National La Visite (Pic la Visite) in the Massif de la Selle mountain 
range in Haiti (Goetz et al. 2012, p. 5).
    Based on recent habitat suitability modelling for the species, 
there are an estimated 563 square kilometers (km\2\) (139,120 acres 
(ac)) of potentially suitable nesting habitat (suitability indices> 
0.65) throughout Hispaniola, with only about 167 km\2\ (41,267 ac) 
considered ``highly suitable'' with indices >0.9 (Satg[eacute] et al. 
2021, p. 581)., The occupied area of currently known nest sites only 
includes approximately 2 km\2\ (494 ac) of that highly suitable habitat 
(Wheeler et al. 2021, pp. 73-82).
    Black-capped petrels spend most of their time at sea in the 
northwestern Atlantic. The at-sea geographic distribution (marine 
range) of the species includes waters off the eastern coast of North 
America from latitude 40[deg] N (approximately New Jersey) south to 
latitude 10[deg] N (approximately northern South America) and includes 
waters of the countries of Aruba, Bahamas, Bermuda, Bonaire, Canada, 
Colombia, Cuba, Curacao Caymans, Dominica, Dominican Republic, 
Guadeloupe, Guyana, Haiti, Jamaica, Nicaragua, Panama, St. Lucia, St. 
Vincent, Trinidad and Tobago, Turks and Caicos, United States, 
Venezuela and beyond to areas in the high seas (Goetz et al. 2012, p. 
4; Jodice et al. 2015, entire). Off the eastern coast of the United 
States, petrels forage primarily in the Gulf Stream, from northern 
North Carolina to northern Florida, in areas of upwelling; off the 
coast of North Carolina, the species is most commonly observed offshore 
seaward from the western edge of the Gulf Stream and in areas of deeper 
waters. Near-shore waters off the northern coast of Central and South 
America also serve as foraging areas for some black-capped petrels 
during the breeding season (Jodice et al. 2015, pp. 26-27).
    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).
    Black-capped petrels feed mostly at night and pick their food from 
the water surface either solitarily or in close proximity to other 
foraging seabird species. The diet of black-capped petrels is not fully 
understood; however, stomach content studies found squid, fish, 
crustaceans, and Sargassum or marine algae (Haney 1987, pp. 163-164; 
Simons et al. 2013, p. S30). The plant materials in the stomach suggest 
the species may forage around Sargassum mats, which tend to attract 
prey species and lead to the ingestion of the algae materials while the 
petrels feed on their preferred prey. The limited amount of algae found 
within digestive tracts further suggests that petrels may only be 
incidentally foraging at the Sargassum (Moser and Lee 1992, p. 67).

[[Page 89616]]

    Black-capped petrels are ground-nesters that use existing cavities 
under rocks or vegetation in areas of high elevation (greater than or 
equal to 1,500 meters (4,921 feet)). The nesting habitat is described 
as montane forests with steep slopes and rocky substrate, with or 
without vegetation or humus cover that provides underground pockets and 
cavities for excavating nests. They may also burrow at the base of 
native arborescent ferns (Brown and Jean 2021, p. 5). The nesting 
season begins around January, with high parental investment in the nest 
and chick rearing. The female lays only one egg each season, with an 
alternating male and female incubation period of 50 to 53 days, 
followed by shared parenting of the chick for a minimum of 80 days. 
Adults that are raising young may travel 500 to 1,500 kilometers (km) 
(310 to 932 miles (mi)) to obtain food for the young and have been 
found foraging in the Caribbean Sea (Jodice et al. 2015, pp. 26-27). 
Chicks fledge between May and July, and head out to sea to feed on 
their own (Simons et al. 2013, pp. S21-S22). When adult birds leave the 
nesting areas, they may migrate up to 2,200 km (1,367 mi) from the 
breeding grounds to primary offshore foraging areas off the mid-
Atlantic and southern coasts of the United States (Jodice et al. 2015, 
p. 23).
    The adults travel from nests to marine feeding areas during 
foraging bouts for the young, which generally occur at night; this 
makes visual observations difficult. The nests are also in rugged 
montane areas that are not easily accessed, and burrows are difficult 
to detect. The species was historically used as a food source for the 
island inhabitants, as the young chicks are easily captured once a 
burrow is located. The petrels were also drawn in using manmade fires 
(Sen Sel) intended to disorient the birds, causing them to fly towards 
the light of the fire and ultimately crashing into the land nearby 
where they were captured for food (Wingate 1964, p. 154).
    Due to the high elevation and rough terrain of the nesting habitat, 
the species was rarely observed and thought to be extinct until it was 
rediscovered by Wingate in 1963, in the Massif de la Selle mountain 
range in Haiti. The estimated population at that time was around 2,000 
pairs, based on potential occupied suitable habitat; however, there is 
some uncertainty of the accuracy of this estimate due to the methods 
used to extrapolate and it has been suggested that the population may 
have been even higher (Wingate 1964, p. 154).

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR part 424 regarding how we add, remove, and reclassify 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019). On the 
same day, the Service also issued final regulations that, for species 
listed as threatened species after September 26, 2019, eliminated the 
Service's general protective regulations automatically applying to 
threatened species the prohibitions that section 9 of the Act applies 
to endangered species (84 FR 44753; August 27, 2019).
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Services can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define the foreseeable 
future as a particular number of years. Analysis of the foreseeable 
future uses the best scientific and commercial data available and 
should consider the timeframes applicable to the relevant threats and 
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically

[[Page 89617]]

relevant to assessing the species' biological response include species-
specific factors such as lifespan, reproductive rates or productivity, 
certain behaviors, and other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be listed as an endangered or threatened 
species under the Act. However, it does provide the scientific basis 
that informs our regulatory decisions, which involve the further 
application of standards within the Act and its implementing 
regulations and policies.
    To assess the black-capped petrel's viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years); redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events), 
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment 
(for example, climate conditions, pathogens). In general, species 
viability will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). Using these principles, we 
identified the species' ecological requirements for survival and 
reproduction at the individual, population, and species levels, and 
described the beneficial and risk factors influencing the species' 
viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report can be found at Docket FWS-R4-ES-
2018-0043 on https://www.regulations.gov.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability. We provide an overview of 
the main threats impacting the black-capped petrel's viability, both in 
its terrestrial breeding habitat and its marine range. Most threats are 
the result of anthropogenic activities, and the species' apparently 
finite availability of suitable breeding areas presents a major 
limiting factor in its ability to maintain viability. We include not 
only factors negatively affecting the species or its habitat, but also 
include conservation efforts that have a positive effect on the 
species. Additional details regarding the threats can be found in the 
SSA report (Service 2023, entire).
    We reviewed the threats that are affecting the black-capped petrel 
now, and potentially into the future. Due to the pelagic nature of the 
species, and its dependency on both terrestrial and marine habitats 
during different life stages, threats act on the species during 
breeding/nesting/chick rearing and also at sea when not on the nesting 
grounds. The primary threats to the species on the breeding grounds 
(terrestrial life stages and habitat) are habitat loss and degradation 
due to deforestation, anthropogenic forest fires, and development 
(Factor A) and depredation by introduced mammals (Factor C); additional 
factors affecting the species for both terrestrial and marine life 
stages and/or its habitat include collisions with communication towers 
(Factor E) and artificial lighting that causes disorientation 
(grounding and collisions) (Factor E). At sea, the species uses areas 
that may overlap with coastal and offshore wind infrastructure and 
development (Factor E), and offshore oil and gas development (Factor 
E). In addition, marine fisheries bycatch may occur when black-capped 
petrels are incidentally caught in fishing gear and the artificial 
lighting on fishing vessels may cause disorientation (Factor E). The 
effects of climate change are also expected to affect the species 
through increased storm intensity and frequency, resulting in flooding 
of burrows and erosion of suitable nesting habitat (Factors A E). The 
predicted increase in strong Atlantic storms or hurricane frequency due 
to climate change is also expected to lead to an increase in land 
strandings (Factor E). We discuss each of these factors in more detail 
below, however, additional information on the threats can be found in 
the SSA report (Service 2023, pp. 15-37).

Deforestation

    Deforestation, and associated loss and degradation of nesting 
habitat, is considered one of the most significant threats to the 
black-capped petrel (Goetz et al. 2012, entire; Wheeler et al. 2021, 
pp. 12-16). Many of the Caribbean islands where petrels were 
historically reported have experienced extremely high rates of forest 
conversion and loss since European colonization (Goetz et al. 2012, 
entire; Simons et al. 2013, p. S31). Urbanization, agricultural 
development, charcoal production, and tree fern harvesting are driving 
the changes in the forested areas where the petrels breed.
    On Hispaniola, where all known currently active black-capped petrel 
nesting sites occur, estimates of deforestation range from nearly 90 
percent of primary forests removed in the Dominican Republic portion to 
more than 90 percent removed in the Haitian portion (Castro et al. 
2005, p. 7; Simons et al. 2013, p. S31; Churches et al. 2014, entire). 
Recent quantitative assessments 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 from 2000 to 2018 in areas known or likely to 
contain petrel nests (Lloyd and Leon 2019, p. 5; Satg[eacute] et al. 
2021, p. 583).
    Deforestation in the Haitian nesting areas is particularly 
significant for the black-capped petrel given that 50 percent of all 
active nest sites of the species may occur there (Goetz et al. 2012, p. 
5; Wheeler et al. 2021, p. 10). Although deforestation in petrel 
nesting areas of the Dominican Republic has been comparatively lower, 
recent increases in forest clearing for subsistence agriculture and 
charcoal production in the Sierra de Bahoruco and other areas adjacent 
to the Haitian border have resulted in concomitant increases in nesting 
habitat loss and degradation there (Checo 2009, entire; Grupo Jaragua 
2011, entire; Goetz et al. 2012, p. 7; Simons et al. 2013, p. S31).
    Charcoal, along with firewood, is used for cooking and is one of 
the primary sources of energy in Haiti. The overwhelming dependence on 
wood-

[[Page 89618]]

based cooking fuels in parts of Hispaniola has resulted in substantial 
deforestation and forest conversion in both Haiti and adjacent regions 
of the Dominican Republic.
    Recently, the harvesting of tree ferns to sell as substrate for 
ornamental plants has been increasingly occurring in black-capped 
petrel nesting areas of Haiti. The harvesting of these ferns disrupts 
and destabilizes soil in the vicinity of the nest burrow. At least 14 
active nests were destroyed due to this activity during the 2020-2021 
nesting season (Brown and Jean 2021, p. 4).

Anthropogenic Fires

    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). Effects to the 
terrestrial habitat from fire may be significant and potentially long-
term, as fires set to clear land for agricultural development can 
result in substantial loss and conversion of forested nesting habitat. 
Moreover, fires during the incubation and brooding phase can cause 
injury or mortality for adults and nestlings within nest burrows.
    The frequency and intensity of fires in and around black-capped 
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; International Black-capped 
Petrel Conservation Group (IBPCG) 2021, p. 1). Natural fires resulting 
from lightning strikes also occur, but these tend to occur mainly 
during the wetter summer months (Robbins et al. 2008, entire). 
Naturally occurring fires may help maintain open, pine savannahs at 
higher elevations, which may be more accessible to petrels (Simons et 
al. 2013, p. S31). In contrast, most anthropogenic fires occur during 
the winter dry season, when black-capped petrels are actively nesting 
(Simons et al. 2013, p. S31) and thereby constitute more of a direct 
threat. Dry season fires also tend to be more intense, delaying or 
inhibiting forest recovery due to destruction of seed banks and organic 
humus layers (Rupp and Garrido 2013, entire).
    Fires indirectly affect black-capped petrel nesting habitat by 
increasing erosion and mudslides following elimination of previously 
existing vegetation and ground cover. In the Massif de la Selle in 
Haiti, deliberately set fires likely caused increased erosion of cliffs 
used for nesting by black-capped petrels; the fires were set to 
facilitate clearing of land and for fuel wood harvesting (Woods et al. 
1992, pp. 196-205; Simons et al. 2013, p. S33). For years, such fires 
have also denuded large swaths of forest cover in the black-capped 
petrel nesting areas of Pic Macaya in the Massif de la Selle of Haiti 
(Sergile et al. 1992, pp. 5-12). In the black-capped petrel nesting 
areas of the Dominican Republic, fires are also at times deliberately 
set in retaliation for actions taken by government officials to evict 
or otherwise deter Haitian migrants engaged in illegal land-clearing 
activities (Rupp and Garrido 2013, entire).

Development

    As a Caribbean Island, Hispaniola has desirable coastal property 
with high potential for recreational and tourist development. Although 
the high-elevation areas where the black-capped petrel nests are 
currently among the most remote and sparsely populated areas of 
Hispaniola, the government of the Dominican Republic has initiated 
long-term plans to promote major tourism development in the region 
(Ministerio de Turismo 2012, entire; Direcci[oacute]n General de 
Alianzas P[uacute]blico Privadas (DGAPP) 2021, entire). These plans are 
focused immediately south of the petrel nesting areas in the Sierra del 
Bahoruco, on the coastal area of Pedernales/Cabo Rojo, and include 
several major resort hotels, apartment complexes, golf courses, a major 
international airport, and a large marina (DGAPP 2021, entire). The 
airport is expected to become the second largest in the Dominican 
Republic in terms of passenger traffic, with an estimated 1.6 million 
passengers per year at project completion (DGAPP 2021, pp. 89-107). 
According to official statements and published plans by the Dominican 
government, this development will consist of a major international 
airport, large marina or cruise ship terminal, luxury apartment 
buildings, and several major resort hotels. The area under development 
is not directly affecting the nesting habitat, as it is not in the 
highest elevation areas, but it is located along petrel flight paths 
between the nesting areas in the Sierra del Bahoruco and foraging in 
the Caribbean Sea, which could affect petrels heading out to sea for 
foraging bouts. These foraging bouts are important for sustaining 
brooding adults incubating the nests and returning food to the chicks 
on the nests. While likely needed for the economic welfare of the local 
citizens, the infrastructure associated with such developments also 
inevitably results in a substantial increase in artificial lighting, 
including that of commercial and private aircraft during nighttime 
arrivals and departures. Indeed, concerns have recently been raised by 
local residents over the potential for environmental damage and 
degradation resulting from this development project (DRS 2022, 
unpaginated). Concomitant with this development will be an increase in 
human presence and electric power needs. Wind turbines, as well as a 
new 138-kilovolt electrical transmission grid parallel to the coast, 
will be installed to supply power to the region (DGAPP 2021, pp. 57-
64). In Hawaii, powerline collisions are a main threat that have 
contributed to the decline of the Newell's shearwater and Hawaiian 
petrel (L. Nagatani 2022, pers. comm.). The significant increase in 
local human population, and associated increases in artificial 
lighting, will be located between petrel nesting areas in the Sierra 
del Bahoruco and Caribbean Sea, which also align with petrel flight 
paths to and from such areas. This could result in direct or indirect 
mortality of black-capped petrels.
    The recent discovery of economically significant sources of Rare 
Earth Elements (REE) in the southern Sierra del Bahoruco prompted the 
Dominican government to set aside a large tract of land near current 
petrel nesting areas for the exploration and extraction of these 
resources, which are critical components in solar and cellular 
communication technologies.

Depredation by Introduced Mammals

    Like most native Caribbean species, the black-capped petrel evolved 
in the absence of mammalian ground predators. However, following 
European colonization, many Caribbean islands quickly became host to 
populations of introduced black rats (Rattus rattus), Norway rats 
(Rattus norvegicus), domestic dogs (Canis familiaris), feral pigs (Sus 
scrofa), and domestic cats (Felis domesticus). In the late 1800s, the 
deliberate introduction of the small Indian mongoose (Herpestes 
javanicus) resulted in apparently uncontrollable mongoose populations 
on all islands (except Dominica) where the black-capped petrel is known 
or suspected to nest or once nested (Barun et al. 2011, pp. 19-20; 
Simons et al. 2013, p. S31).
    The primary cause of nest failure is predation by nonnative species 
(Wheeler et al. 2021, p. 16). Recent surveys at nesting areas have also 
found higher rates of predation than previously known. For instance, 
the Loma del Toro nesting area is in the Sierra de Bahoruco of the 
Dominican Republic and is approximately 370 ac (150 hectares (ha)) 
(Wheeler et al. 2021, p. A2-77). Since 2018, cumulative monitoring of 
95 black-capped petrel

[[Page 89619]]

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 black-capped petrel nesting season (2021-2022), nest 
success estimated from the 23 nests monitored in this colony declined 
to 22 percent (5 successful nests and 18 unsuccessful) (E. Rupp, Grupo 
Jaragua, in litt.), and severe nest predation by stray dogs has 
occurred in this nesting area (IBPCG 2021, p. 1). Historical (i.e., 
prior to the introduction of exotic mammals into black-capped petrel 
habitat) estimates of nest success in this area are unavailable.
    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, black-
capped petrels nesting in Valle Nuevo face the threats of agricultural 
activities, habitat loss, and communication towers (Goetz et al. 2012, 
p. 5; Wheeler et al. 2021, pp. 12-16), all of which exacerbate 
predation by invasive mammals. This is 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.).
    New information shows the threat of depredation is affecting the 
reproductive success of the species and is more widespread than 
previously described. The documented loss of black-capped petrels to 
mammal depredation at three of the four nesting sites has a significant 
negative impact to the overall reproduction of the species. Each 
breeding pair lays one egg per nesting season. In 2021, it was 
documented that one single dog predated at least 19 black-capped 
petrels. During the 2020 to 2021 period, at Pic La Visite, 54 percent 
of the nests were lost to mammal depredation, with adult black-capped 
petrels also lost to mammal depredation. Similar declines in nest 
success were documented at Loma del Toro, where 85 percent of the nests 
were lost to mammal depredation, and at the Valle Nuevo area, where all 
nests were lost to mammal depredation (in addition to the loss of 
adults) during the 2019-2020 and 2020-2021 periods.

Communication Towers and Artificial Lighting

    Recent years have seen the proliferation of telecommunication 
towers throughout the Caribbean islands. These towers are typically 
located on high mountain ridges, hills, and other prominent topographic 
features, and the structures extend several meters above canopy level. 
Many of the tallest are also secured by numerous guy wires (Longcore et 
al. 2008, entire; Simons et al. 2013, p. S32). Petrels, particularly 
inexperienced fledglings and juveniles, are especially sensitive to 
artificial lighting, likely due to a dependence on visual cues such as 
moonlight and starlight for nocturnal navigation (see Imber 1975, p. 
304; Le Corre et al. 2002, p. 390; Rodriguez and Rodriguez 2009, p. 
303; Rodriguez et al. 2017a, p. 989; Rodriguez et al. 2017b, p. 68). 
Petrels that nest in burrows or cavities are more affected by 
artificial lighting than ground-nesting species due to their inherent 
nature to associate light with food (Imber 1975, p. 305). Because of 
the black-capped petrel's nocturnal activity, combined with the high 
speed at which they fly, they are highly vulnerable to aerial 
collisions with these unseen structures, especially on foggy nights 
typical of the petrel nesting season (Goetz et al. 2012, p. 8; Longcore 
et al. 2013, entire; Simons et al. 2013, p. S32). There have been 
numerous documented cases of black-capped petrel mortality and injury 
from aerial collisions with lighted structures in or near their 
breeding areas (Goetz et al. 2012, p. 8; Simons et al. 2013, p. S32), 
as well as groundings of adults and fledglings (Rodriguez et al. 2017a, 
p. 989).

Wind Energy

    Infrastructure associated with offshore, coastal, and upland wind 
energy projects can cause collision risks for black-capped petrels at 
sea or on their breeding areas on Hispaniola. The increasing use of 
wind farms on and near Caribbean islands may constitute a potential 
threat to flying petrels (Simons et al. 2013, p. S32). As with 
communication towers, land-based wind farms tend to be located on high 
ground, where winds are higher and more constant. Threats are not only 
associated with collisions with fan blades, but also disorientation 
from associated lights with which such structures are equipped. Recent 
construction of inland wind farms near black-capped petrel nesting 
areas on Hispaniola constitute an additional and unquantified threat.
    For offshore wind energy sites, not only are there risks associated 
with collisions and lighting impacts, but wind farms can change the 
local hydrodynamics and species distribution. For example, turbidity is 
affected and influences predator and prey interactions, where predators 
may be attracted to and prey may avoid the area affected (Van Berkel et 
al. 2020, pp. 113-114).
    In the United States, as of 2022, the only offshore areas that have 
operating wind farms are off the coasts of New Jersey and Virginia. 
While existing offshore wind energy areas are outside of the black-
capped petrel's range, some future potential wind energy areas off the 
Atlantic coast of the United States do overlap with small portions of 
the species' core areas (primary foraging area) and home ranges 
(Satg[eacute] et al. 2022, p. 14). On August 1, 2023, the Bureau of 
Ocean Energy Management (BOEM) identified wind energy areas off the 
coast of Delaware, Maryland, and Virginia in a Notice of Intent to 
Prepare an Environmental Assessment (88 FR 50170); however, these areas 
are closer inland than black-capped petrels normally forage and would 
likely only affect individual petrels that are blown off their normal 
areas in high wind situations.
    In the northern Gulf of Mexico, there have been studies to 
determine offshore wind potential. The BOEM proposed wind energy lease 
areas in October 2022 off the coast of Louisiana and Texas (BOEM 2022, 
entire). However, these areas are 40-50 mi (64.4-80.1 km) from 
documented black-capped petrel locations (Jodice et al. 2021, entire). 
There are also plans to develop wind energy areas off the coast of 
Colombia, South America that may affect the black-capped petrel.
    Wind energy impacts on the black-capped petrel are not well-
studied; however, we are aware that take of other petrel species has 
occurred due to wind farm activities. For example, the Service has 
issued incidental take permits to several wind farms in the State of 
Hawaii. The effect of nesting petrel mortality caused by wind turbines 
(or any other factors) could be effectively doubled as the single chick 
would likely die within the nest burrow from subsequent starvation due 
to the lack of biparental care (Hamer et al. 2002, pp. 238-243).

Offshore Oil and Gas

    Activities associated with offshore oil and gas infrastructure and 
operations could pose a threat to black-capped petrels or their 
habitat. Some of the hazards include collisions,

[[Page 89620]]

disorientation from lighting/flaring, and exposure to petroleum 
products and other discharged wastewater products.
    Offshore oil and gas operations are ongoing in many areas of the 
species' marine range. In the U.S. waters, there is ongoing and planned 
oil and gas activity in the northern Gulf of Mexico that overlaps with 
the black-capped petrel's range (Jodice et al. 2021, p. 60). There is 
also oil and gas production off the coasts of Cuba, Colombia, and 
Venezuela. Black-capped petrels were observed foraging in the southern 
Caribbean Sea in Colombian lease areas under evaluation or exploration, 
or open for concession; minimum distances to an active lease area and a 
well in production were 7 km (4.3 mi) and 24 km (15 mi), respectively 
(Satg[eacute] et al. 2019, pp. 40-41). In addition, petrels occurred 34 
km (21.1 mi) from an active lease area, and 50 km (31 mi) from a well 
in production, near Venezuela (Satg[eacute] et al. 2019, p. 12). Black-
capped petrels utilizing these areas for foraging or resting could be 
exposed to hydrocarbon releases during accidental oil spills, as well 
as to increased concentrations of contaminants from uncontrolled 
seepage. This could result in direct mortality (i.e., external oiling); 
indirect mortality (ingestion of crude oil through prey or preening); 
or sublethal effects on reproduction, such as hormone suppression, 
impaired egg formation, or increases in malformations (Helm et al. 
2015, pp. 431-453).

Marine Fisheries

    The range of the black-capped petrel overlaps with international 
industrial fishing fleets and squid fisheries, with squid fishing 
occurring in the Caribbean Sea. The vessels targeting squid use very 
bright lights to attract their catch, which could cause disorientation 
of, and increase the number of collisions with, black-capped petrels; 
however, there is little information from foreign fishing fleets 
regarding the impacts from fisheries (Simons et al. 2013, p. S33). 
There has been at least one incident of black-capped petrel collision 
with a fisheries research vessel in the northern Gulf of Mexico in U.S. 
waters (Satg[eacute] et al 2023, p. 57). The collision occurred at 
night and the vessel was lighted, which likely contributed to 
attraction and disorientation of the petrel.
    Aside from lighting, petrels can become entangled in fishing lines, 
nets, and hooks during their foraging bouts. There are several methods 
of commercial fishing practiced in the species' range, including 
pelagic long line fishing, gillnet use, and trawling. Marine fisheries 
may entangle seabirds in clear monofilament fishing lines or hooks and 
increase opportunity for collisions with vessels (Furness 2003, p. 34; 
Li et al. 2012, p. 563). It is difficult to conclusively determine the 
direct and indirect impacts to black-capped petrels from marine 
fisheries based on the available information. It was estimated that 
between 8 to 24 black-capped petrels were affected by pelagic longline 
fishing in the U.S. Atlantic waters between 1992 to 2016; this analysis 
was based on the relationships between seabird bycatch likelihood and 
the surface-scavenging behavior of species, such as petrels, resulting 
in a higher chance of interaction with longline fishery gear (Zhou et 
al. 2019, p. 1332).

Climate Change

    The black-capped petrel faces potential impacts from climate change 
effects on both foraging and breeding areas through differing 
mechanisms (Simons et al. 2013, p. S33). Regarding the marine range 
where the species is found (when not in breeding status), there is a 
strong association with the Gulf Stream current and upwellings off the 
southeastern U.S. coast that influences the species' vulnerability to 
climate-induced changes. Increases in temperature affect the intensity 
and track of the Gulf Stream current and associated changes in marine 
primary productivity, as well as the abundance and diversity of marine 
nekton (i.e., actively swimming aquatic organisms), which are essential 
food sources for the black-capped petrel (Ch[aacute]vez et al. 2011, p. 
230; Bakun et al. 2015, pp. 85-86; Saba et al. 2016, p. 131; Siqueira 
and Kirtman 2016, pp. 3965-3966; Kimball et al. 2020, p. 936; Zhang et 
al. 2020, pp. 707-710). For example, in coastal South Carolina, over a 
30-year period, the subtidal nekton assemblage transitioned to a state 
of lower abundance and different composition as a result of increased 
water temperature and storm events (Kimball et al. 2020, pp. 927-928).
    The terrestrial habitat is also impacted by the effects of climate 
change due to changes in storm and hurricane regimes. Increased 
intensity and frequency of major (Category 3 to Category 5) Atlantic 
hurricanes (Bender et al. 2010, p. 456), combined with reduced 
translation speeds (i.e., the speeds at which hurricanes move), may 
further accelerate erosion and degradation of nesting areas (Hass et 
al. 2012, p. 259; Simons et al. 2013, p. S33; Kossin 2018, p. 104).
    Because of the species' highly specific nesting habitat 
requirements, found only in areas highly sensitive to climatic change, 
those areas are among the most vulnerable to the adverse effects of 
climate change (Williams et al. 2007, pp. 5739-5740; Sekercioglu et al. 
2008, p. 145; Thurman et al. 2020, p. 520). The species is restricted 
to the highest elevations on Hispaniola, and should such areas be 
rendered unsuitable, the species would have no place to go to seek 
climate refugia, thus increasing the extinction risk.

Conservation Efforts and Existing Regulatory Mechanisms

    The black-capped petrel is protected under the Migratory Bird 
Treaty Act of 1918 (16 U.S.C. 703-712). Protections from this Act are 
limited to areas within the United States or its Territories and 
Commonwealths, and the black-capped petrel does occur within waters of 
the United States. Permits are required for activities within U.S. 
jurisdiction that may cause the taking, possession, transportation, 
sale, purchase, barter, importation, exportation, and banding or 
marking of migratory birds. There are also certain exceptions to permit 
requirements for public, scientific, or educational institutions, and 
there are depredation orders that provide limited exceptions to the 
provisions of the Migratory Bird Treaty Act. See title 50 of the Code 
of Federal Regulations (CFR) at part 21 for more information about 
these permit requirements and exceptions.
    Ongoing conservation efforts by many organizations include research 
and public outreach for the conservation of the black-capped petrel. 
Several nongovernmental organizations (NGOs) are currently working in 
Haiti and the Dominican Republic to reduce or mitigate the severity of 
identified threats. These NGOs include international organizations 
(e.g., BirdsCaribbean, Environmental Protection in the Caribbean, Plant 
with Purpose, American Bird Conservancy, International Black-capped 
Petrel Conservation Group (IBPCG)), as well as local organizations 
(e.g., Grupo Jaragua, Soci[eacute]t[eacute] Audubon Haiti). Because 
most of the threats to the black-capped petrel are directly the result 
of anthropogenic activities (Service 2023, pp. 15-35), these NGOs have 
been providing technical assistance and education on sustainable 
agricultural practices, watershed management, and reforestation of 
previously deforested and degraded areas in the regions where black-
capped petrels nest.
    Conservation efforts, including environmental education regarding 
the black-capped petrel, occur at the local level. For example, in 
Boukan Chat, Haiti (adjacent to the Morne Vincent petrel nesting area), 
NGOs have developed black-capped petrel

[[Page 89621]]

educational programs for local schoolchildren, provided financial and 
technical assistance with construction of freshwater cisterns, and 
provided tree seeds and technical assistance for local reforestation 
projects. Some residents of Boukan Chat have been hired specifically to 
improve community awareness of the black-capped petrel and its plight, 
and of how sustainable land management can be mutually beneficial to 
both the community and the petrel.
    Building on past and current efforts, the IBPCG recently compiled 
and published a comprehensive and strategic conservation action plan 
(hereafter, ``Plan'') for the long-term conservation of the black-
capped petrel (Wheeler et al. 2021, entire). The Plan summarizes recent 
information relative to species conservation, including nesting habitat 
modeling and population viability analyses; additionally, the Plan 
identifies priorities such as promoting petrel conservation through 
local community involvement, as well as habitat and species 
conservation measures. The Plan is a guide for current and future 
black-capped petrel conservation efforts.
    Other NGO efforts include recent production of the documentary 
``Save the Devil,'' detailing local efforts to save the species, in 
addition to active monitoring for forest fires near black-capped petrel 
nesting areas, continued monitoring of petrel nest success in the Morne 
Vincent/Sierra del Bahoruco nesting area, continued radar and bio-
acoustical monitoring for petrel detections, and working with owners of 
a local communication tower to reduce nocturnal lighting intensity 
(Brown 2016, entire; IBPCG 2016, entire; 2017, entire; Wheeler et al. 
2021, entire). Additionally, there have been some efforts to trap 
introduced predators at or near black-capped petrel nest sites, but 
results have been hindered by the remoteness of field sites and theft 
of traps. While some efforts are locally successful, they are 
relatively limited in both geographic scope and funding. There are 
other areas of Hispaniola which harbor, or may harbor, black-capped 
petrel nesting colonies (e.g., Pic Macaya, Pic La Visite, Massif de La 
Selle) that could benefit from similar efforts.

Cumulative and Synergistic Effects

    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future conditions of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the relevant factors that 
may be influencing the species, including threats and conservation 
efforts. Because the SSA framework considers not just the presence of 
the factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.

Current Condition

    Below, we provide an overall summary of the species' current 
condition in terms of resiliency, redundancy, and representation as 
described in detail in the SSA report (Service 2023, pp. 37-61) and 
include new information that indicates the current condition is lower 
than described in the October 9, 2018, proposed rule (83 FR 50560).
    The black-capped petrel's current condition is based on the 
breeding grounds and the life stages associated with the terrestrial 
habitat. The 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, and Loma Quemada), with Pic Macaya 
recently considered extirpated. As noted above, Morne Vincent and Loma 
del Toro are ecologically the same nesting area but are on different 
sides of the border between Haiti and Dominican Republic. We identified 
them separately for purposes of our analysis because of differences in 
threats. The resiliency of the populations at each breeding area was 
analyzed using available data associated with demographic factors, 
including acoustic and radar detections, number of active nests, and 
new success for each of the populations (Service 2023, pp. 53-55). Each 
of the demographic factors were compiled for each population and 
qualified using low, medium, and high descriptions (Service 2023, pp. 
53-55). We did not apply habitat factors or threats during the 
resiliency analyses but considered those factors along with redundancy 
and representation in the overall current condition and species' 
viability (Service 2023, pp. 59-61). Principal factors that have 
adversely affected current conditions include increases in (1) forest 
fires, (2) predation of nests and adults by nonnative mammals, (3) loss 
and degradation of nesting habitat, and (4) direct effects of 
hurricanes and tropical storms.
    The species exhibits low resiliency at Loma Quemada and Valle 
Nuevo, medium resiliency at Morne Vincent and Sierra de Bahoruco/Loma 
del Toro, and high resiliency at Pic la Visite; it is considered 
extirpated at Pic Macaya. The current condition of each breeding site 
reflects the current resiliency based on historical optimal conditions 
(Service 2023, pp. 52-55).
    Resiliency of the populations in the nesting areas are lower than 
previously described in our 2018 proposed rule, influenced greatly by 
depredation by nonnative mammals. For example, the Valle Nuevo nesting 
population in the Dominican Republic has experienced an apparent 
complete failure of all known nests over two recent (2020, 2021) 
nesting seasons (IBPCG 2021, p. 1; IBPCG 2022, p. 6), largely because 
of mongoose predation. 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. This site is in the far southwestern point 
of Haiti where, despite its location within Macaya National Park, the 
habitat has been heavily impacted by agricultural development and fires 
(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). Additional ongoing impacts to the 
species and its nesting habitat in this area include depredation by 
introduced mammals (cats, rats, and feral pigs). This site is 
considered extirpated.
    Such threats on the nesting grounds are currently reducing the 
species' reproductive success in affected breeding populations through 
direct losses of adult breeding birds. The black-capped petrel is a k-
selected species, meaning a species whose populations fluctuate at or 
near the carrying capacity (k) of the environment in which they reside. 
K-selected species tend to produce relatively low numbers of offspring 
and are characterized by more parental investment in nesting and chick-
rearing and longer lifespans. For strongly k-selected species such as 
the black-capped petrel, losses of breeding adults exacerbate the 
ecological effects of lowered reproductive output because of the level 
of parental care they provide to offspring, and population modeling for 
similar species has shown that such combined effects--if not 
controlled--can quickly place the species at risk of extinction (Simons 
1984, p. 1071). Even

[[Page 89622]]

a rather ``generic'' population viability analysis (PVA) based on 
composite data from 35 other Pterodroma species predicts a steady 
decline in population viability for the black-capped petrel during this 
century, with a nearly 75 percent decrease in total population over the 
next 50 years (Wheeler et al. 2021, p. 18).
    While resiliency at Pic la Visite was considered high, nearly 50 
percent of all known active nests are also concentrated in a single 
area at Pic la Visite within 2.47 ac (1 ha) (Wheeler et al. 2021, pp. 
10, A2-73). Recent species-specific habitat modelling (Satg[eacute] et 
al. 2021, entire), demonstrates that the amount and distribution of 
suitable nesting habitat for the species on Hispaniola is approximately 
70 percent less than previously believed (i.e., Service 2019, p. 48), 
and that such habitats have been severely reduced and fragmented by 
ongoing forest loss for the past two decades. This limited availability 
and distribution of suitable high-elevation nesting habitats renders 
such areas highly vulnerable to slight changes in environmental 
conditions due to climate change. Recent (2018-2021) trends and data 
suggest that many of the major threats acting on the species are 
increasing in both magnitude and biological impact.
    Threats related to anthropogenic stress and climate change have 
caused reduced resiliency of breeding populations, which, in turn, 
cause low species-level redundancy. This hinders the ability of the 
species to withstand climate change-induced catastrophic events (e.g., 
hurricanes), and inflexible breeding habitat requirements would make it 
difficult for black-capped petrels to move to other geographic areas, 
should their current terrestrial habitat become unsuitable.
    Redundancy reflects the capacity of a species to persist in the 
face of catastrophic events. This is best achieved by having multiple, 
widely distributed resilient populations across the geographical range 
of the species. As described, most known nests (80 to 90 percent) are 
believed to be within the Pic La Visite and Morne Vincent/Loma del Toro 
nesting areas (Brown and Jean 2021, p. 2). This means that most nests 
are within a geographically restricted area, which would hinder the 
species' ability to face catastrophic events. Additionally, this 
geographically restricted area is currently subject to significant and 
increasing pressure from deforestation and other anthropogenic 
activities (IBPCG 2019, pp. 2-3; Wheeler et al. 2021, p. A2-74). With 
the recent extirpation of the westernmost population in Haiti (Pic 
Macaya) due to habitat loss and degradation, the redundancy on 
Hispaniola is lower than described in the October 9, 2018, proposed 
rule (83 FR 50560).
    Representation reflects the adaptive capacity of a species in the 
face of current and future physical (e.g., climatic variations, habitat 
degradation, and anthropogenic structures) and biological (e.g., novel 
predators, pathogens) changes in environmental conditions. The species 
has been confined to a single island for nesting, with the loss of 
populations on Martinique, Guadeloupe, and Dominica. Because the black-
capped petrel has high nesting site fidelity, the loss of these 
breeding populations on other islands likely has resulted in the loss 
of unique genotypes and phenotypes, contributing to an overall limited 
representation. The species' current condition is even lower than 
described in the October 9, 2018, proposed rule (83 FR 50560) due to 
lower resiliency across most breeding areas and limited redundancy and 
representation. Due to the immediate threats--habitat loss and 
degradation, and depredation--affecting the species and its nesting 
habitat, the species' overall viability has declined.

Future Condition

    In describing the species' viability in the future, we considered 
the predictive range of existing data and projected threats and the 
species' response using three plausible scenarios. We assessed the 
threat of habitat destruction, modification, or curtailment on the 
nesting grounds in terms of land clearing for charcoal production on 
Hispaniola as a result of increased human populations and limited 
insular resource availability. As the human population increases, the 
demand for charcoal will increase, resulting in more cleared lands and 
a greater impact on the primary forests. We also considered the effects 
of climate change into the future and describe changes in the hurricane 
regime and temperatures that will affect the black-capped petrel on its 
nesting grounds and potentially in its marine range. As we have 
determined that the species meets the Act's definition of an 
``endangered species'' (see Determination of Black-capped Petrel's 
Status, below), the future conditions are not described in detail in 
this final rule. Instead, details regarding the future conditions 
analysis and the future resiliency, redundancy, and representation of 
the black-capped petrel are presented in detail in the SSA report 
(Service 2023, pp. 62-79), which is available at https://www.regulations.gov under Docket No. FWS-R4-ES-2018-0043.

Determination of Black-Capped Petrel's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of endangered species 
or threatened species because of any of the following factors: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we have determined habitat loss and degradation due to 
deforestation from fires for agricultural development and charcoal 
production are currently affecting the species and its nesting grounds 
on the island of Hispaniola (Factor A). Fires are used to remove forest 
cover to allow for agricultural crops. Historically, the black-capped 
petrel also nested on the islands of Guadeloupe, Martinique, Dominica, 
and possibly Cuba but is now confined to a single island. The species 
was extirpated from Martinique in pre-Columbian times by island 
residents that overharvested the petrel for consumption (Factor B). 
Further, depredation by nonnative mammalian species is a threat to 
petrels on islands, contributed to the loss and extirpation of the 
species on the island of Dominica in the late 19th century, and is 
currently affecting the black-capped petrel (Factor C). Additionally, 
the species' nesting range is limited to steep, high-elevation areas 
that can be affected by erosion due to increased hurricane intensity 
and frequency, reducing available cavities or access to nesting sites 
(Factor E).
    The current resiliency for the black-capped petrel is described as 
low and is expected to decline in the near future, along with having 
limited redundancy and representation. The overall species'

[[Page 89623]]

viability reflects the nature of an island endemic that has a breeding 
area confined to the highest elevation of a single island. In 1961, the 
population was estimated to be around 8,000, and it is suggested that 
it has declined in abundance by 50 to 75 percent over the last 50 
years. With an estimated breeding population of 500 to 1,000 breeding 
pairs (Simons et al. 2013, p. S22; BirdLife International 2022, 
unpaginated), impacts at any breeding site in any given breeding season 
have consequences to the species' overall viability. For a species 
where a breeding pair produces a single egg each year, those 
consequences include loss of reproductive potential for the affected 
adults and chicks of that generation.
    Due to increasing habitat loss and degradation through 
deforestation for agricultural development and charcoal production, the 
recent habitat suitability modeling for the species (Satg[eacute] et 
al. 2021, entire) found that the suitable breeding habitat is 70 
percent less than what we previously estimated in 2018 (Satg[eacute] et 
al. 2021, pp. 583-586).
    New information shows the threat of depredation is affecting the 
reproductive success of the species and is more widespread than 
previously described. The documented loss of black-capped petrels to 
mammal depredation at three of the four nesting sites has a significant 
negative impact to the overall reproduction of the species. Each 
breeding pair lays one egg per nesting season. In 2021, it was 
documented that one single dog predated at least 19 black-capped 
petrels. During the 2020 to 2021 period, at Pic La Visite, 54 percent 
of the nests were lost to mammal depredation, with adult black-capped 
petrels also lost to mammal depredation. Similar declines in nest 
success were documented at Loma del Toro, where 85 percent of the nests 
were lost to mammal depredation, and at the Valle Nuevo area, where all 
nests were lost to mammal depredation (in addition to the loss of 
adults) during the 2019-2020 and 2020-2021 periods.
    In addition to depredation, there are other threats to the breeding 
areas, including development, fires, collisions with communication 
towers, and artificial lighting, The effects of climate change are also 
expected to affect the species through increased storm intensity and 
frequency, resulting in flooding of burrows and erosion of suitable 
nesting habitat. The degree of impacts from these threats varies from 
site to site. These threats to the nesting areas are reducing the 
species' reproductive success and are causing direct losses of breeding 
animals.
    Due to the loss of nesting areas across the historical range of the 
species, the black-capped petrel is currently only confirmed to be 
reproducing on the island of Hispaniola. The species' range reduction 
has led to the loss of redundancy of populations, with only four known 
nesting colonies remaining, all confined to one island, and 50 percent 
of the nesting populations within a very small geographical area, 
making the species highly susceptible to catastrophic events. This also 
contributes to the loss of representation; as the species has high 
fidelity to the same nesting sites each year, there is limited genetic 
exchange between populations. With the loss of populations on other 
islands, this reduces the potential for additional genetic lineages to 
increase genotypic diversity within the species. There is a documented 
decrease in breeding habitat availability and habitat quality, coupled 
with a declining breeding population.
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we find that rapidly declining habitat availability and 
quality, combined with a substantial increase in both the extent and 
intensity of mammal depredation to nests and adult nesting black-capped 
petrels between 2019 to 2021, show that the species is in danger of 
extinction now. Moreover, due to the imminent nature of these threats 
acting on the species and its habitat along with the species' response 
to the threats, the species is currently in danger of extinction. Thus, 
after assessing the best available information, we determine that the 
black-capped petrel is in danger of extinction throughout all of its 
range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
within the foreseeable future throughout all or a significant portion 
of its range. We have determined that the black-capped petrel is in 
danger of extinction throughout all of its range and accordingly did 
not undertake an analysis of any significant portions of its range. 
Because the black-capped petrel warrants listing as an endangered 
species throughout all of its range, our determination does not 
conflict with the decision in Center for Biological Diversity v. 
Everson, 435 F. Supp. 3d 69 (D.D.C. 2020), which vacated the provision 
of the Final Policy on Interpretation of the Phrase ``Significant 
Portion of Its Range'' in the Endangered Species Act's Definitions of 
``Endangered Species'' and ``Threatened Species'' (79 FR 37578; July 1, 
2014) providing that if the Service determines that a species is 
threatened throughout all of its range, the Service will not analyze 
whether the species is endangered in a significant portion of its 
range.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the black-capped petrel meets the Act's 
definition of an endangered species. Therefore, we are listing the 
black-capped petrel as an endangered species in accordance with 
sections 3(6) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. The 
listing of a species results in public awareness, and conservation by 
Federal, State, Tribal, and local agencies, private organizations, and 
individuals. The Act encourages cooperation with the States and other 
countries and calls for recovery actions to be carried out for listed 
species. The protection required by Federal agencies, including the 
Service, and the prohibitions against certain activities are discussed, 
in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, NGOs, and stakeholders) may be established to develop and 
implement recovery plans. The recovery

[[Page 89624]]

planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Revisions of the plan may 
be done to address continuing or new threats to the species, as new 
substantive information becomes available. The recovery outline, draft 
recovery plan, final recovery plan, and any revisions will be available 
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Caribbean Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, NGOs, businesses, and private landowners. 
Examples of recovery actions include habitat restoration (e.g., 
restoration of native vegetation), research, captive propagation and 
reintroduction, and outreach and education. The recovery of many listed 
species cannot be accomplished solely on Federal lands because their 
range may occur primarily or solely on non-Federal lands. To achieve 
recovery of these species requires cooperative conservation efforts on 
private, State, and Tribal lands.
    Once this species is listed (see DATES, above), funding for 
recovery actions will be available from a variety of sources, including 
Federal budgets, State programs, and cost-share grants for non-Federal 
landowners, the academic community, and NGOs. In addition, pursuant to 
section 6 of the Act, the States of Georgia, North Carolina, South 
Carolina, and Virginia will be eligible for Federal funds to implement 
management actions that promote the protection or recovery of the 
black-capped petrel. Information on our grant programs that are 
available to aid species recovery can be found at: https://www.fws.gov/service/financial-assistance.
    Please let us know if you are interested in participating in 
recovery efforts for the black-capped petrel. Additionally, we invite 
you to submit any new information on this species whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Each Federal agency shall 
review its action at the earliest possible time to determine whether it 
may affect listed species or critical habitat. If a determination is 
made that the action may affect listed species or critical habitat, 
formal consultation is required (50 CFR 402.14(a)), unless the Service 
concurs in writing that the action is not likely to adversely affect 
listed species or critical habitat. At the end of a formal 
consultation, the Service issues a biological opinion, containing its 
determination of whether the Federal action is likely to result in 
jeopardy or adverse modification.
    Examples of discretionary actions for the black-capped petrel that 
may be subject to consultation procedures under section 7 include 
management and any other habitat-altering activities on Federal waters 
administered by the Department of Defense or NOAA; and offshore energy 
activities of the BOEM and Bureau of Safety and Environmental 
Enforcement (BSEE).
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce any species listed as an endangered species. It is 
also illegal to possess, sell, deliver, carry, transport, or ship any 
such wildlife that has been taken illegally. Certain exceptions apply 
to employees of the Service, the National Marine Fisheries Service, 
other Federal land management agencies, and State conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22. With regard to 
endangered wildlife, a permit may be issued for the following purposes: 
for scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities. There are also certain statutory exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    It is the policy of the Services, as published in the Federal 
Register on July 1, 1994 (59 FR 34272), to identify, to the extent 
known at the time a species is listed, specific activities that will 
not be considered likely to result in violation of section 9 of the 
Act. The intent of this policy is to increase public awareness of the 
effect of a final listing on proposed and ongoing activities within the 
range of a listed species.
    At this time, we are unable to identify specific activities that 
would not be considered to result in a violation of section 9 of the 
Act beyond what is already clear from the descriptions of prohibitions 
or already excepted through our regulations at 50 CFR 17.21 (e.g., any 
person may take endangered wildlife in defense of his own life or the 
lives of others). Also, as discussed above, certain activities that are 
prohibited under section 9 may be permitted under section 10 of the 
Act.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act if they 
are not authorized in accordance with applicable law; this list is not 
comprehensive:
    (1) Unauthorized handling or collecting of the species;
    (2) Discharge of contaminants into or near foraging areas; and
    (3) Use of artificial lights on structures or vessels in or near 
foraging areas.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Caribbean 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Critical Habitat

Background

    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information

[[Page 89625]]

Quality Guidelines provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in section 9 of the Act. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of the species. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available at the time of those planning efforts calls for a different 
outcome.

Critical Habitat Prudency

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary shall designate critical habitat at the 
time the species is determined to be an endangered or threatened 
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary 
may, but is not required to, determine that a designation would not be 
prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    In our October 9, 2018, proposed rule (83 FR 50560), we found the 
designation of critical habitat for the black-capped petrel was not 
prudent, in accordance with 50 CFR 424.12(a)(1), because destruction of 
habitat is not a threat to the species in the U.S. portions of the 
range. However, since the publication of the proposed rule, new 
information provides evidence that there are threats acting on the 
species within areas under U.S. jurisdiction. Those threats include 
offshore energy development, including petroleum (oil and gas) and 
renewable sources (wind). These threats currently affect the species' 
marine habitat to a limited degree; however, those impacts are expected 
to increase with future offshore energy development. Accordingly, we 
have determined that the designation of critical habitat for the black-
capped petrel is prudent.

Critical Habitat Determinability

    Our regulations at 50 CFR 424.12(a)(2) state that the designation 
of critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    The data sufficient to perform the required consideration of 
economic impacts are lacking at this time. Therefore, we conclude that 
the designation of critical habitat for the black-capped petrel is not 
determinable at this time. The Act allows the Service an additional 
year to publish a critical habitat designation that is not determinable 
at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).

Required Determination

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes on a government-to-government basis. In accordance with 
Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We have determined that no Tribal 
lands fall within the boundaries of the black-capped petrel's range, so 
no Tribal lands would be affected by the listing of the species.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Caribbean Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

[[Page 89626]]

Authors

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


0
2. Amend Sec.  17.11, in paragraph (h), by adding an entry for 
``Petrel, black-capped'' to the List of Endangered and Threatened 
Wildlife in alphabetical order under BIRDS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                               Listing citations
           Common name              Scientific name        Where listed          Status         and applicable
                                                                                                     rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
              Birds
 
                                                  * * * * * * *
Petrel, black-capped............  Pterodroma hasitata  Wherever found.....  E...............  88 FR [INSERT
                                                                                               FEDERAL REGISTER
                                                                                               PAGE WHERE
                                                                                               DOCUMENT BEGINS],
                                                                                               12/28/2023.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-28456 Filed 12-27-23; 8:45 am]
BILLING CODE 4333-15-P