Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 89611 

Estimated Time per Response: 1–52 

hours. 

Frequency of Response: On occasion 

reporting requirement, Recordkeeping 

requirement, Third party disclosure 

requirement. 

Obligation To Respond: Required to 

obtain or retain benefits. Statutory 

authority for these collections is 

contained in sections 151, 152, 154(i), 

303, 307, 308, and 315 of the 

Communications Act of 1934, as 

amended. 

Total Annual Burden: 2,065,841 

hours. 

Total Annual Cost: No cost. 

Needs and Uses: On July 20, 2023, the 

Commission adopted Amendment of 

Parts 73 and 74 of the Commission’s 

Rules to Establish Rules for Digital Low 

Power Television and Television 

Translator Stations, Fifth Report and 

Order, FCC 23–58 (rel. July 20, 2023) 

(FM6 Report and Order). The 

Commission adopted a new requirement 

that FM6 LPTV stations maintain a 

public inspection file similar to the 

requirement in the rule for FM radio 

stations. This submission is being made 

to the Office of Management and Budget 

(OMB) for approval of the local public 

inspection file requirement for FM6 

LPTV stations as adopted in the FM6 

Report and Order. This requirement is 

contained in 47 CFR 73.3526. 

OMB Control No.: 3060–0386. 

Title: Special Temporary 

Authorization (STA) Requests; 

Notifications; and Informal Filings; 

Sections 1.5, 73.1615, 73.1635, 73.1740 

and 73.3598; CDBS Informal Forms; 

Section 74.788; Low Power Television, 

TV Translator and Class A Television 

Digital Transition Notifications; Section 

73.3700(b)(5), Post Auction Licensing; 

Section 73.3700(f). 

Form No.: None. 

Respondents: Business or other forprofit entities; Not for profit institutions; 

State, local or Tribal government. 

Number of Respondents and 

Responses: 5,537 respondents and 5,537 

responses. 

Estimated Time per Response: 0.50– 

4.0 hours. 

Frequency of Response: One-time 

reporting requirement and on occasion 

reporting requirement. 

Obligation To Respond: Required to 

obtain or retain benefits. The statutory 

authority for this collection is contained 

in 47 U.S.C. 151, 154(i), 157 and 309(j) 

as amended; Middle Class Tax Relief 

and Job Creation Act of 2012, Public 

Law 112–96, 6402 (codified at 47 U.S.C. 

309(j)(8)(G)), 6403 (codified at 47 U.S.C. 

1452), 126 Stat. 156 (2012) (Spectrum 

Act); and sections 1, 4(i) and (j), 7, 301, 

302, 303, 307, 308, 309, 312, 316, 318, 

319, 324, 325, 336, and 337 of the 

Communications Act of 1934, as 

amended. 

Total Annual Burden: 4,353 hours. 

Annual Cost Burden: $1,834,210. 

Needs and Uses: On July 20, 2023, the 

Commission adopted Amendment of 

Parts 73 and 74 of the Commission’s 

Rules to Establish Rules for Digital Low 

Power Television and Television 

Translator Stations, Fifth Report and 

Order, FCC 23–58 (rel. July 20, 2023) 

(FM6 Report and Order). The 

Commission adopted a one-time 

requirement that FM6 LPTV stations 

notify the Media Bureau via letter filing 

as to whether they will continue FM6 

operations and confirm their precise 

FM6 operational parameters. In 

addition, in the FM6 Report and Order, 

the Commission adopted a rule, 47 CFR 

74.790(o)(9) that requires FM6 LPTV 

stations that are permanently 

discontinuing their FM6 operations to 

notify the Commission pursuant to 

section 73.1750 of the rules. This 

submission is being made to the Office 

of Management and Budget (OMB) for 

approval of the one-time letter 

notification and discontinuation of 

operations notification requirements for 

FM6 LPTV stations as adopted in the 

FM6 Report and Order. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

[FR Doc. 2023–28618 Filed 12–27–23; 8:45 am] 

BILLING CODE 6712–01–P 

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. 

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 blackcapped 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: Jose ́

Cruz-Burgos, Fish and Wildlife 

Biologist, U.S. Fish and Wildlife 

Service, Caribbean Ecological Services 

Field Office; email: caribbean_es@

fws.gov; 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-ofcontact 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. 


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89612 Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 

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 blackcapped 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 (Satge ́ 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 blackcapped 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 blackcapped 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 


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Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 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 blackcapped 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 


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89614 Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 

is no confirmed evidence the blackcapped 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 blackcapped 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 stormpetrel (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 speciesspecific. 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 nutrientrich 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° N (approximately New 

Jersey) south to latitude 10° 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. 


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Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 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 blackcapped 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 ‘‘blackfaced,’’ ‘‘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 (km2) 

(139,120 acres (ac)) of potentially 

suitable nesting habitat (suitability 

indices> 0.65) throughout Hispaniola, 

with only about 167 km2 (41,267 ac) 

considered ‘‘highly suitable’’ with 

indices >0.9 (Satge ́ et al. 2021, p. 581)., 

The occupied area of currently known 

nest sites only includes approximately 2 

km2 (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° 

N (approximately New Jersey) south to 

latitude 10° 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 nearshore 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). 


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Black-capped petrels are groundnesters 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 


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relevant to assessing the species’ 

biological response include speciesspecific 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 blackcapped 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; Satge ́ 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 

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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 blackcapped 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 blackcapped 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 highelevation 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; 

Direccio ́n General de Alianzas Pu ́ 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 blackcapped 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 


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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 blackcapped 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 blackcapped 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 blackcapped 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 (Satge ́ 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 blackcapped 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, 


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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 (Satge ́ 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 

(Satge ́ 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 (Satge ́ 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 (Cha ́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, 

Socie ́te ́ 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 


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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 blackcapped petrel nesting areas, continued 

monitoring of petrel nest success in the 

Morne Vincent/Sierra del Bahoruco 

nesting area, continued radar and bioacoustical 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, blackcapped 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 

(Satge ́ 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 


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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 speciesspecific habitat modelling (Satge ́ 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 preColumbian 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 blackcapped petrel is described as low and is 

expected to decline in the near future, 

along with having limited redundancy 

and representation. The overall species’ 


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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 (Satge ́ et al. 

2021, entire) found that the suitable 

breeding habitat is 70 percent less than 

what we previously estimated in 2018 

(Satge ́ 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 blackcapped 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, selfsustaining, 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 


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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/endangeredspecies), 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 nonFederal 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 blackcapped petrel. Information on our grant 

programs that are available to aid 

species recovery can be found at: 

https://www.fws.gov/service/financialassistance. 

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 


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Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 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). 


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89626 Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 

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 

■ 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. 

■ 2. Amend § 17.11, in paragraph (h), by 

adding an entry for ‘‘Petrel, blackcapped’’ to the List of Endangered and 

Threatened Wildlife in alphabetical 

order under BIRDS to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Common name Scientific name Where listed Status Listing citations 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 


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