[Federal Register Volume 72, Number 132 (Wednesday, July 11, 2007)]
[Proposed Rules]
[Pages 37695-37697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3355]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition to List 12 Penguin Species as Threatened or Endangered under 
the Endangered Species Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of status 
review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list 12 penguin species: emperor 
penguin (Aptenodytes forsteri), southern rockhopper penguin (Eudyptes 
chrysocome), northern rockhopper penguin (Eudyptes moseleyi (E. 
chrysocome moseleyi)), fiordland crested penguin (Eudyptes 
pachyrhynchus), snares crested penguin (Eudyptes robustus), erect-
crested penguin (Eudyptes sclateri), macaroni penguin (Eudyptes 
chrysolophus), royal penguin (Eudyptes schlegeli), white-flippered 
penguin (Eudyptula albosignata (E. minor albosignata)), yellow-eyed 
penguin (Megadyptes antipodes), African penguin (Spheniscus demersus), 
and Humboldt penguin (Spheniscus humboldti) as threatened or endangered 
under the Endangered Species Act of 1973, as amended (Act). We find 
that the petition presents substantial scientific or commercial 
information indicating that listing 10 species of penguins may be 
warranted. We, therefore, are initiating a status review of 10 species 
of penguins to determine if listing under the Act is warranted. To 
ensure that the status review is comprehensive, we are soliciting 
scientific and commercial information regarding these species. We find 
the petition does not provide substantial scientific or commercial 
information indicating that listing of two species may be warranted: 
snares crested penguin and royal penguin. Therefore, we will not be 
initiating a status review for these two species in response to this 
petition. However, we ask the public to submit to us any new 
information that becomes available concerning the status of these two 
species or threats to them or their habitat at any time.

DATES: We must receive your comments on or before September 10, 2007.

ADDRESSES: Submit any comments, information, and questions by any one 
of the following methods: By mail to the Special Assistant to the 
Deputy Assistant Director, International Affairs, U.S. Fish and 
Wildlife Service, 4401 N. Fairfax Drive, Room 760, Arlington, VA 22203; 
by fax to 703-358-2276; by e-mail to [email protected]; or through 
the Federal eRulemaking Portal at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Dr. Peter O. Thomas at the above 
address, or by telephone, 703-358-1708; or e-mail, [email protected].

SUPPLEMENTARY INFORMATION: If you submit information or comments, 
please include ``Attn: Penguins'' in the beginning of your message. 
Electronic attachments in standard formats (such as .pdf or .doc) are 
acceptable, but please name the software necessary to open any 
attachments in formats other than those given above. Also, please 
include your name and return address in your e-mail message. If you do 
not receive a confirmation from the system that we have received your 
e-mail message, please submit your comments in writing using one of the 
alternate methods described above.

Public Comments Solicited

    We intend that any final action resulting from this status review 
will be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, concerned governmental 
agencies, the scientific community, industry, or any other interested 
party. We are opening a 60-day public comment period to allow all 
interested parties an opportunity to provide information on the 
statuses of 10 species of penguins: emperor penguin (Aptenodytes 
forsteri), southern rockhopper penguin (Eudyptes chrysocome), northern 
rockhopper penguin (Eudyptes moseleyi (E. chrysocome moseleyi)), 
fiordland crested penguin (Eudyptes pachyrhynchus), erect-crested 
penguin (Eudyptes sclateri), macaroni penguin (Eudyptes chrysolophus), 
white-flippered penguin (Eudyptula albosignata (E. minor albosignata)), 
yellow-eyed penguin (Megadyptes antipodes), African penguin (Spheniscus 
demersus), and Humboldt penguin (Spheniscus humboldti) throughout their 
range, including:
    (1) Information on taxonomy, distribution, habitat selection and 
trends (especially breeding and foraging habitats), diet, and 
population abundance and trends (especially current recruitment data) 
on these species;
    (2) Information on the effects of climate change and changing ocean 
or land or sea ice conditions on the distribution and abundance of 
these species and their principal prey species over the short and long 
term (especially information on known prey substitutions, and what 
their effects would be on these species);
    (3) Information on the effects of other potential threat factors, 
including commercial fishing activities, contaminants, habitat loss, 
harvest, predation by other animals, and diseases of these species or 
their

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principal prey over the short and long term;
    (4) Information on management programs for penguin conservation, 
including mitigation measures related to conservation programs, 
fisheries management, and any other private, tribal, or governmental 
conservation programs which benefit these species; and
    (5) Information relevant to whether any populations of the species 
may qualify as distinct population segments.
    We will base our finding on a review of the best scientific and 
commercial information available, including all information received 
during the public comment period.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.
    All comments and supporting information will be available for 
public inspection, by appointment, Monday through Friday from 8 a.m. to 
4 p.m. (see ADDRESSES).

Background

    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
information was presented, we are required to promptly commence a 
review of the status of the species.
    In making this finding we relied on information provided by the 
petitioner and evaluated that information in accordance with 50 CFR 
424.14(b). Our process of making a 90-day finding under section 
4(b)(3)(A) of the Act and section 424.14(b) of our regulations is 
limited to a determination of whether the information in the petition 
meets the ``substantial information'' threshold.
    On November 29, 2006, the Service received a petition dated 
November 28, 2006, from the Center for Biological Diversity to list 12 
penguin species under the Act. The 12 penguin species range from 
Antarctica, Argentina, Australian Territory Islands, Chile, French 
Territory Islands, Namibia, New Zealand, Peru, South Africa, and United 
Kingdom Territory Islands. The petition, which was clearly identified 
as such, contains detailed information on the natural history, biology, 
status, and distribution of each of the 12 species. It also contains 
information on what the petitioner reported as potential threats to the 
species from climate change and changes to the marine environment, 
commercial fishing activities, contaminants and pollution, guano 
extraction, habitat loss, hunting, nonnative predator species, and 
other factors. The petition also discusses existing regulatory 
mechanisms and the perceived inadequacies to protect these species.
    We have determined that the petition presents substantial 
scientific or commercial information to indicate that listing 10 
species of penguins as endangered or threatened may be warranted: 
emperor penguin, southern rockhopper penguin, northern rockhopper 
penguin, fiordland crested penguin, erect-crested penguin, macaroni 
penguin, white-flippered penguin, yellow-eyed penguin, African penguin, 
and Humboldt penguin. Therefore, we are initiating a status review to 
determine if listing each of the 10 species is warranted. To ensure 
that the status review is comprehensive, we are soliciting scientific 
and commercial information regarding these 10 species. Under section 
4(b)(3)(B) of the Act, we are required to make a finding as to whether 
listing each of the 10 species of penguins is warranted, not warranted, 
or warranted but precluded by pending listing proposals by November 29, 
2007.
    Furthermore, we have also determined that the petition does not 
provide substantial scientific or commercial information indicating 
that listing the snares crested penguin and the royal penguin as 
threatened or endangered may be warranted at this time.
    The snares crested penguin is endemic to Snares Island, New 
Zealand. The petition states that the population of snares crested 
penguin was ``estimated at 23,250 breeding pairs in 1995-1986.'' No 
current population data were provided. The Department of Conservation 
of New Zealand in its Action Plan for Seabird Conservation in New 
Zealand (Taylor 2000) cited by the petitioner, ranks snares crested 
penguins as a third priority species for conservation action. In 
contrast, other New Zealand endemic penguins included in the petition 
are ranked within the New Zealand Action Plan as second priority 
threatened species. This lower priority conservation status for the 
snares crested penguin reflects the statement in the Action Plan that 
``possibly the population is stable or has increased slightly since the 
1960s.'' As quoted in the petition, the action plan cites no human 
disturbance of colonies and no records of snares crested penguins being 
caught in trawl nets, as well as the absence of introduced mammalian 
predators on the Snares Islands. Unlike some of the other penguin 
species included in the petition, competition with fisheries for prey 
species has not been documented for this species. The petitioner 
reports that the greatest threat to this species is reduced prey 
availability due to changing ocean conditions; however, specific data 
to support this are not provided. Citations in the petition on possible 
specific or general impacts of climate change on penguins at various 
Antarctic and sub-Antarctic latitudes do not mention the snares crested 
penguin, yet the petitioners assert the species will be affected on the 
basis of inferred similarity with other species for which the 
petitioner cites such impacts. We note that the petitioners do not 
include all penguin species in the petition. This indicates a 
conclusion by the petitioners that not all penguin species are equally 
under threat from the cited climate change factors and reduces 
confidence in the extrapolation of information, whether general, or 
directly tied to other specific locations or other species, to species 
included in the petition for which no specific information on these 
factors is provided. On the basis of the information provided on 
population data, trends, and threats, we find that the petitioner does 
not present substantial scientific or commercial information to 
indicate that listing the snares crested penguin may be warranted at 
this time.
    The petitioners present information on the distribution and 
abundance of the royal penguin. The royal penguin is endemic to 
Macquarie Island, Australia. This information indicates that population 
levels are stable for this species which has recovered from heavy 
exploitation for their oil in the 19th and early 20th Centuries to a 
stable population of approximately 850,000 pairs, located in 57 
colonies ranging from 60 to 160,000 pairs primarily on Macquarie Island 
and a few nearby islands. The petitioners cite a number of general 
references describing possible threats to the species. Unlike other 
species included in the petition, substantial evidence of current or 
recent population declines or of large scale or significant local 
impacts on this species from the possible threat factors cited in the 
petition are not presented. With

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respect to the threat of nest predation by introduced predators which 
is documented as a serious threat by the petitioner in citations for 
other endemic species, the IUCN Red List of Threatened Species citation 
for this species, based on a 2005 assessment, states for the royal 
penguin that ``rats take some eggs and young'' but goes on to state 
that ``feral cats have now been eliminated from Macquarie Island.'' 
This suggests that conservation actions related to removing introduced 
predators prescribed in the Penguin Conservation Assessment and 
Management Plan for the royal penguin cited by the petitioner (Ellis 
1999) are being successfully implemented. In fact, this recommendation 
regarding removing introduced predators is not included in the 2005 
update of the IUCN Red List citation (Birdlife International 2006). 
Similarly, according to this cited source, the threat of human 
disturbance is being managed; ``tourists on breeding islands are 
managed to prevent disturbance.'' Citations in the petition on possible 
specific or general impacts of climate change on penguins at various 
Antarctic and sub-Antarctic latitudes do not mention the royal penguin, 
yet the petitioners assert the species will be affected on the basis of 
inferred similarity with other species for which the petitioner cites 
such impacts. We note that the petitioners do not include all penguin 
species in the petition. This indicates a conclusion by the petitioners 
that not all penguin species are equally under threat from the cited 
climate change factors and reduces confidence in the extrapolation of 
information, whether general, or directly tied to other specific 
locations or other species, to species included in the petition for 
which no specific information on these factors is provided. Because the 
petitioner provided no information indicating population declines or 
documenting specific threats to the species supported by scientific 
data or studies, we find that the petitioner does not present 
substantial scientific or commercial information to indicate that 
listing the royal penguin as threatened or endangered may be warranted 
at this time.

Finding

    We have determined that the petition presents substantial 
scientific or commercial information to indicate that listing 10 
species of penguins as endangered or threatened may be warranted. We 
find the petition does not present substantial scientific or commercial 
information to indicate that listing the snares crested penguin and the 
royal penguin as threatened or endangered may be warranted at this 
time.

References Cited

    Birdlife International (Birdlife). 2006. In IUCN 2006. 2006 IUCN 
Red List of Threatened Species. Available at: http://www.iucnredlist.org.
    del Hoyo, J., A. Elliott, and J. Sargatal (Eds.). 2002. Handbook 
of the Birds of the World. Vol. 1. Lynx Edicions, Barcelona.
    Ellis, S. 1999. The Penguin Conservation Assessment and 
Management Plan: a Description of the Process. Marine Ornithology 
27:163-169.

Author

    The primary author of this notice is Pat Ford, Division of 
Scientific Authority, U.S. Fish and Wildlife Service.

Authority

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

    Dated: July 3, 2007.
H. Dale Hall,
Director, Fish and Wildlife Service.
[FR Doc. 07-3355 Filed 7-6-07; 11:47 am]
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