[Federal Register Volume 72, Number 194 (Tuesday, October 9, 2007)]
[Proposed Rules]
[Pages 57278-57283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19690]


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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 the Black-Footed Albatross (Phoebastria nigripes) as 
Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 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 the black-footed albatross 
(Phoebastria nigripes) 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 the black-footed albatross may be warranted. Therefore, 
with the publication of this notice, we are initiating a status review 
to determine if listing the species is warranted. To ensure that the 
review is comprehensive, we are soliciting data and other information 
regarding this species.

DATES: The finding announced in this document was made on October 9, 
2007. To be considered in the 12-month finding for this petition, data, 
information, and comments must be submitted to us by December 10, 2007.

ADDRESSES: The complete supporting file for this finding is available 
for public inspection, by appointment, during normal business hours at 
the Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, 
Room 3-122, Honolulu, HI 96813. You may submit data, information, 
comments, or questions concerning this species or our finding, by any 
one of several methods:
    1. By mail or hand-delivery to: Patrick Leonard, Field Supervisor, 
Pacific Islands Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 300 Ala Moana Boulevard, Box 50088, Honolulu, HI 96850.
    2. By electronic mail (e-mail) to: [email protected]. Please include 
``Attn: black-footed albatross'' in your e-mail subject header, 
preferably with your name and return address in the body of your 
message. If you do not receive a confirmation from the system that we 
have received your e-mail, contact us directly by calling the Pacific 
Islands Fish and Wildlife Office at 808-792-9400. Please note that the 
e-mail address above will be closed at the end of the public comment 
period.
    3. By fax to: the attention of Patrick Leonard at 808-792-9581.

FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Field Supervisor, 
Pacific Islands Fish and Wildlife Office (see ADDRESSES); by telephone 
(808-792-9400); or by facsimile (808-792-9581). Persons who use a 
telecommunications device for the deaf (TTD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Information Solicited

    When we make a finding that a petition presents substantial 
information to indicate that listing a species may be warranted, we are 
required to promptly commence a review of the status of the species. To 
ensure that the status review is complete and based on the best 
available scientific and commercial information, we are soliciting 
additional information on the black-footed albatross. We request any 
additional information, comments, and suggestions from the public, 
other concerned governmental agencies, Tribes, the scientific 
community, industry, or any other interested parties concerning the 
status of the black-footed albatross. We are seeking information 
regarding the species' historical and current status and distribution, 
its biology and ecology, ongoing conservation measures for the species 
and its habitat, and threats to the species and its breeding and 
foraging habitats. Of particular interest is information pertaining to 
the factors the Service uses to determine if a species is threatened or 
endangered: (A) 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; and (E) other natural or manmade factors affecting its 
continued existence.
    We will base our 12-month finding on a review of the best 
scientific and commercial information available, including all 
information received during the public comment period. If you wish to 
comment or provide information, you may submit your comments and 
materials concerning this finding to the Field Supervisor, Pacific 
Islands Fish and Wildlife Office (see ADDRESSES section). Please note 
that comments merely stating support or opposition to the actions under 
consideration without providing supporting information, although noted, 
will not be considered in making a determination, as section 4(b)(1)(A) 
of the Act directs that determinations as to whether any species is a 
threatened or endangered species shall be made ``solely on the basis of 
the best scientific and commercial data available.'' At the conclusion 
of the status review, we will issue the 12-month finding on the 
petition, as provided in section 4(b)(3)(B) of the Act.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comments, you should be 
aware that

[[Page 57279]]

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.

Background

    Section 4(b)(3)(A) of the Endangered Species Act of 1973, as 
amended (Act) (16 U.S.C. 1531 et seq.), requires that we make a finding 
on whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information to indicate that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files at 
the time we make the determination. To the maximum extent practicable, 
we are to make this finding within 90 days of our receipt of the 
petition and publish our notice of this finding promptly in the Federal 
Register.
    Our standard for substantial 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 
petitioners that we determined to be reliable after reviewing sources 
referenced in the petition and information available in our files at 
the time of the petition review. We evaluated that information in 
accordance with 50 CFR 424.14(b). Our process in making this 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.

Petition

    On October 1, 2004, we received a formal petition dated September 
28, 2004, requesting that we list the black-footed albatross 
(Phoebastria nigripes) as a threatened or endangered species, and that 
critical habitat be designated concurrently with listing. The petition, 
submitted by Earthjustice on behalf of the Turtle Island Restoration 
Network and the Center for Biological Diversity, identified itself as 
such and contained the names, addresses, and signatures of the 
requesting parties. The petition included supporting information 
regarding the species' taxonomy and ecology, historical and current 
distribution, present status, potential causes of decline, and active 
imminent threats. We sent a letter acknowledging receipt of the 
petition to Earthjustice on December 3, 2004. In our response, we 
advised the petitioners that we had determined that emergency listing 
was not warranted for the species at that time, and owing to a 
significant number of listing rules due in 2005 under court-order and 
court-approved settlement agreements, we had insufficient resources to 
initiate a 90-day finding at that time. This notice constitutes our 90-
day finding for the petition to list the black-footed albatross.

Species Information

    The seabird family Diomedeidae (albatrosses) contains four genera 
and as many as 24 species (Robertson and Nunn 1998, pp. 15-19), the 
majority of which breed and forage in the Antarctic and sub-Antarctic. 
The black-footed albatross is one of four species in the genus 
Phoebastria, all but one of which breed and forage exclusively in the 
North Pacific Ocean (the waved albatross, Phoebastria irrorata, nests 
on the equator in the Galapagos Islands and forages in the South 
Pacific along the Peruvian coast). Of the North Pacific albatrosses, 
the black-footed albatross is the only all-dark species; the plumage is 
uniformly sooty brown with a whitish ring at the base of the bill and a 
white patch behind the eye. As they mature, birds develop a white patch 
above and below the tail (Bourne 1982, cited in Hyrenbach 2002, p. 87). 
The wingspan of the black-footed albatross is 76 to 85 inches (193 to 
216 centimeters) and its average weight is 6.17 pounds (2.30 kilograms) 
(Whittow 1993, p. 13).
    According to the petition, recent breeding population estimates for 
the black-footed albatross range from 54,500 breeding pairs (The 
International Union for the Conservation of Nature and Natural 
Resources (IUCN) Red List 2003) to 64,500 breeding pairs (Brooke 2004). 
The most recent population assessment in our files falls squarely 
within this range, with a rough estimate of 61,000 pairs (U.S. Fish and 
Wildlife Service (USFWS) unpublished data 2006). The petition further 
states that the bulk of black-footed albatross today nest in the 
Northern Hawaiian Islands (Brooke 2004). Our information is in 
agreement, showing that approximately 97 percent of the breeding 
population nests in the predator-free Northwestern Hawaiian Islands, 
with most concentrated on two of these islands, Midway Atoll (35 
percent) and Laysan Island (34 percent) USFWS unpublished data 2006). 
Approximately 3 percent of the world's black-footed albatross 
population nests on several remote islands in Japan. A few pairs nest 
on offshore islets in the main Hawaiian Islands, and from 1 to 3 pairs 
nest or attempt to nest annually on Wake Island in the Central Pacific, 
and on Guadalupe and San Benedicto Islands in Mexico.
    Recent study of the mitochondrial DNA of black-footed albatrosses 
indicates that Hawaiian and Japanese birds are genetically distinct, 
and further research may indicate that taxonomic revision is warranted 
to reflect this difference, according to the petition (Walsh and 
Edwards 2004). Information in our files agrees with this assessment 
(Walsh and Edwards 2005, p. 293); however, at present the black-footed 
albatross continues to be treated by the taxonomic authorities as a 
single species (American Ornithologists' Union 2005; Integrated 
Taxonomic Information System 2007), therefore we treat it as such in 
this finding.
    The petition describes the longevity and low reproductive rate of 
the black-footed albatross as factors that exacerbate their 
vulnerability to population impacts (Cousins and Cooper 1999; Walsh and 
Edwards 2004), and points out that for these reasons the species is 
highly sensitive to changes in adult survivorship (Lewison and Crowder 
2003). Information in our files supports the petition's description of 
the life-history characteristics of this species. Black-footed 
albatrosses are long-lived (40 to 50 years) and slow to mature, with 
first breeding typically occurring at 8 to 10 years of age (Kendall et 
al. 2005, p. 11). The nesting phenology of the black-footed albatross 
is summarized by Whittow (1993, pp. 6-8). Pairs mate for life, and 
breed at a maximum of once each year (pairs skip years irregularly). 
Birds arrive at their nesting colonies in Hawaii and Japan in October, 
and most pairs produce their single egg by early December. Eggs hatch 
in January to February, and chicks fledge by mid to late July. Both 
adults take part in incubation and in brooding and feeding the chick.
    As described in the petition, black-footed albatrosses that breed 
in Hawaii generally forage to the northeast, toward coastal waters of 
North America, and move further north in the summer (Brooke 2004). 
Information in our files agrees with this description of foraging 
behavior and range. Black-footed albatrosses forage throughout the 
North Pacific Ocean, frequenting coastal North America especially 
during the breeding

[[Page 57280]]

season (Fernandez et al. 2001, pp. 4-8). Foraging shifts north during 
the summer, after the breeding season, and black-footed albatrosses are 
the most abundant albatross species in the Gulf of Alaska and along the 
continental shelf south of the Aleutian Islands during this period 
(Suryan and Balogh 2005, pp. 1-5). The petition describes the black-
footed albatross as a surface feeder and scavenger, seizing food and 
contact dipping primarily within 3 feet (1 meter) of the ocean's 
surface (Brooke 2004). The diet of adult albatross is primarily flying 
fish eggs, but also squid, fish, offal, and human refuse (Brooke 2004). 
The petition contends that scavenging is the activity that often brings 
the birds into contact with vessels. According to our files, the 
species' primary prey items are thought to be squid and eggs of flying 
fish (Whittow 1993, p. 3), but intensive diet studies are lacking. The 
information available in our files supports the petition's assertion 
that albatross are surface feeders and that their foraging behavior may 
expose them to vessels and fishing gear. Albatrosses scavenge food, 
will consume dead squid at the ocean surface (Pitman et al. 2004, pp. 
162-164) and offal discarded from fishing vessels, pursue baited hooks 
as fishing gear is deployed, and opportunistically feed on fishery 
catch (e.g., swordfish; Xiphius gladius) that lies at the surface 
before it is brought on board (Duffy and Bisson 2006, p. 2).

Threats Analysis

    Section 4 of the Act and implementing regulations (50 CFR 424) set 
forth procedures for adding species to the Federal List of Endangered 
and Threatened Wildlife and Plants. A species may be determined to be 
an endangered or threatened species due to one or more of the five 
factors described in section 4(a)(1) of the Act: (A) 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. In making this finding, we evaluated 
whether threats to the black-footed albatross presented in the petition 
and other information available in our files at the time of the 
petition review may pose a concern with respect to the species' 
survival. Our evaluation of these threats is presented below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of the Species' Habitat or Range

    The petition states that the current range of the black-footed 
albatross represents a significant curtailment of its historic range, 
and that colonies have been extirpated by feather- and egg-hunters from 
Johnston Atoll, Wake Island, Taongi Atoll (Marshall Islands), Marcus 
Island (Minami Torishima), Iwo Jima, and the Northern Mariana Islands 
(Lewison and Crowder 2003).
    Information in our files provides a review of evidence of the 
former nesting range of the black-footed albatross (Tickell 2000, pp. 
217-218). The species' current range and documented extirpations from 
Marcus, Iwo Jima, and Agrihan (Northern Mariana Islands), and anecdotal 
observations from Johnston atoll and Wake Island are highly suggestive 
that the breeding range of the black-footed albatross once comprised a 
string of small islands spanning the Pacific north of 15 degrees North 
latitude and predominantly north of the Tropic of Cancer, however, 
little information exists with which to deduce the original size of the 
extirpated populations.
    Although information presented in the petition, as well as 
information in our files, indicates that the distribution of the black-
footed albatross is now disjunct, the petition does not present 
substantial scientific or commercial information indicating that the 
species' range is continuing to contract. Nor does the petition present 
substantial scientific or commercial information indicating that the 
species' continued existence may be threatened as a result of past 
range contraction.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The petition mentions the mass killing of black-footed albatrosses 
within the last 150 years by feather-hunters causing the extirpation of 
these birds from several breeding islands (Lewison and Crowder 2003), 
but concludes that such direct exploitation today is likely quite rare. 
We are not aware of any information indicating that present-day 
overutilization of black-footed albatross for commercial, recreational, 
scientific, or educational purposes is occurring and posing a threat to 
the species.
    As a result, we have determined that the petition does not present 
substantial scientific or commercial information indicating that the 
continued existence of the black-footed albatross is threatened by 
overutilization.

C. Disease or Predation

    The petition states that because the ranges of the short-tailed 
albatross (Phoebastria albatrus) and black-footed albatross overlap, 
much of the disease factors affecting black-footed albatross are the 
same as those described in the July 31, 2000, final listing rule (65 FR 
46643) for the endangered short-tailed albatross. The petition states 
that the final listing rule for short-tailed albatross explains that 
avian pox has been observed in chicks of albatross species on Midway 
Atoll. The petition also mentions that currently proliferating 
pathogens such avian cholera and West Nile virus are a potential risk 
to black-footed albatross.
    The final listing rule for short-tailed albatross states ``an avian 
pox has been observed in chicks of albatross species on Midway Atoll, 
but whether this pox infects short-tailed albatrosses or may have an 
effect on the survivorship of any albatross species is unknown (T. 
Work, D.V.M., U.S. Geological Survey (USGS), Hawaii; 65 FR 46643). The 
petition presents no evidence that disease may threaten the black-
footed albatross. Information in our files indicates that no diseases 
are known to affect the endangered short-tailed albatross population 
today (USFWS 2005, p. 14). Chicks of the closely-related Laysan 
albatross (Phoebastria immutabilis) do contract avian pox (Poxvirus 
avium), a mosquito-borne disease, in certain areas at Midway Atoll 
where the insects are present, but black-footed albatrosses do not nest 
in these areas and their chicks have not been observed with pox lesions 
(J. Klavitter, USFWS, pers. comm. 2006). A study of this disease in the 
Laysan albatross found that most chicks with pox lesions recovered and 
fledged, and that pox infection did not significantly affect fledging 
success at one colony (Young and VanderWerf 2006). Of a total of 16 
black-footed albatross chicks found on Lehua Islet (offshore of Niihau 
Island, Hawaii) in 2005, two were observed with small pox lesions, but 
the birds appeared to be healthy and in good condition otherwise, and 
were presumed to have developed normally and fledged (E. VanderWerf, 
Service, pers. comm. 2006).
    Information in our files indicates that potentially fatal diseases 
such as avian cholera, avian influenza, and West Nile virus have not 
been observed in North Pacific albatrosses. No experimental or other 
data are available with which to assess the susceptibility of black-
footed albatrosses to avian cholera or flu, and

[[Page 57281]]

no occurrence of either disease has been recorded in Hawaii.
    The petition states that predation by naturally occurring and 
introduced predators pose a threat to the black-footed albatross. To 
support this claim the petitioners provide an excerpt from the short-
tailed albatross listing rule (65 FR 46643), which mentions predation 
by sharks on fledgling albatrosses around their natal islands. Although 
black-footed albatrosses have been subject to predation by sharks, a 
natural phenomenon throughout their evolutionary history, the petition 
does not present substantial information indicating that this source of 
mortality may threaten the species.
    We find that the petition does not present substantial scientific 
or commercial information to indicate that disease or predation 
threatens the continued existence of the black-footed albatross.

D. Inadequacy of Existing Regulatory Mechanisms

    The petition provides credible scientific information that 
incidental mortality in commercial longline fisheries may threaten the 
existence of the black-footed albatross (Gales 1998; Cousins and Cooper 
2000; Cousins et al. 2000; IUCN Red List 2003; Lewison and Crowder 
2003). Mortality is described as resulting from albatross diving on the 
baited hooks that float on the ocean's surface, and then either 
swallowing the baited hook or being caught and pulled underwater to 
drown (National Marine Fisheries Service (NMFS) 2004). Information in 
our files supports the petition, indicating that albatross have a 
propensity for pursuing baited fishing gear, especially those deployed 
by longline vessels, which leads to their being hooked on weighted 
lines, dragged underwater, and drowned (Tasker et al. 2001, p. 532). 
Black-footed albatrosses show this tendency, as evidenced by their 
documented pursuit of baited longline hooks (Melvin et al. 2001, p. 14) 
and their mortality on longline gear (Melvin et al. 2001, pp. 2, 35; 
NMFS--Alaska 2006, pp. 9-11; NMFS--Pacific Islands Regional Office 
(PIRO) unpublished data 2006).
    The petition describes the IUCN reclassification of the black-
footed albatross from Vulnerable to Endangered in 2003 (BirdLife 
International 2003). This reclassification was based on observed and 
estimated mortality in domestic and foreign longline fisheries, 
extrapolations of total annual mortality, and the predicted population 
declines resulting from models based on these data and estimates 
(Cousins et al. 2000; Lewison and Crowder 2003). Information in our 
files confirms the estimates of mortality and predictions of population 
response published by Lewison and Crowder (2003, pp. 748-750) and cited 
by the petition. This study includes a bounded range of fishery-related 
mortality estimates, with a best-case scenario (the lower bound of 
estimated annual mortality) still resulting in a population decline of 
more than 20 percent over the next 60 years. The results of these 
modeling efforts indicate that the rate of mortality of black-footed 
albatrosses may be high enough to result in long-term population 
decline (Cousins et al. 2000, pp. 166-172; Lewison and Crowder 2003, 
pp. 748-750). Relevant to this issue is a Service-contracted formal 
status assessment of the black-footed (and Laysan) albatross that will 
include a synthesis and review of all existing data and other 
information about the species, including an assessment of fishery-
related mortality and statistical models of the population status and 
trajectory. This assessment is currently undergoing peer review in 
preparation for publication. This population assessment will be useful 
in critically evaluating the population trend for the black-footed 
albatross and threats, as part of our 12-month finding.
    The petition states that each year commercial fisheries in the 
North Pacific inadvertently kill from 1 to 5 percent of the global 
population of the black-footed albatross (Lewison and Crowder 2003). 
The petition describes the documented mortality of black-footed 
albatrosses in U.S.-based fisheries (e.g., Cooper 2000) and satellite 
telemetry studies that point to overlap between the foraging range of 
the black-footed albatross and the operation of foreign-flag longline 
fisheries (Hyrenbach and Dotson 2003). Data in our files includes new 
information from satellite telemetry studies and public domain data on 
fishery distribution and effort since the petition was written, and 
provides support to the information in the petition that foreign 
longline fisheries in the North Pacific overlap with the foraging range 
of black-footed albatrosses and that incidental mortality in these 
fisheries is likely to occur (e.g., SPC-OFP 2004; Suryan and Balogh 
2005, p. 1 and maps; Rivera 2006, pp. 7-9).
    The petition includes information on the inadequacy and 
ineffectiveness of existing regulations to minimize the mortality and 
injury of black-footed albatrosses in longline fisheries. The petition 
contends that inadequate regulations include the requirement that 
seabird deterrents be used in the Hawaii-based longline fishery only 
north of 23 degrees North latitude (asserted to be inadequate since 
black-footed albatrosses also forage south of this latitude). In 
addition, the petition explains that the effectiveness of these 
deterrents has not been established. The petition states that blue dye 
is a potentially effective deterrent when used on squid bait, but it 
does not adhere well to the scaly, fin-fish bait that is now required 
in the shallow-set fishery based in Hawaii (Gilman 2003) and that is 
commonly used in the deep-set sector of that fishery.
    Information in our files confirms that the deep- and shallow-set 
sectors of the Hawaii-based longline fishery operate both north and 
south of 23 degrees North latitude (NMFS-PIRO unpublished data 2006), 
and incidental injury and mortality of black-footed albatrosses takes 
place north and south of 23 degrees North latitude as well (NMFS-PIRO 
unpublished data 2004). Since the petition was written, new regulations 
have been published that require the use of seabird deterrents by all 
shallow-set vessels based in Hawaii regardless of where they fish. 
However, deep-set vessels, which expend more fishing effort south of 23 
degrees North latitude than shallow-set vessels (NMFS-PIRO unpublished 
data 2006), are not required to use deterrents when fishing south of 
that latitude (NMFS 2005 (70 FR 75075), p. 75080). Only 20 percent of 
this sector of the fishery is monitored by observers; therefore, we 
have incomplete information about compliance with regulations, 
effectiveness of seabird deterrents, and rates and distribution of 
albatross mortality and injury.
    The petition describes the documented high mortality rate of black-
footed albatrosses in Hawaii-based longline fisheries through 2001, 
especially shallow-set (or swordfish-target) fisheries. The petition 
reports mortality estimates of 3,200 black-footed and Laysan albatross 
a year on average, and indicates that this number may be underestimated 
by 30 to 95 percent since it does not include birds that drop off hooks 
or are taken by predators prior to being counted by observers (NMFS 
2001b). Information in our files provides fleet-wide estimates of 
albatross mortality in the Hawaii-based fishery based on a statistical 
model built from analysis of spatial and temporal patterns in observed 
interactions between albatrosses and fishing vessels (McCracken 2001, 
pp. 1-26; NMFS-PIRO unpublished data 2006). Estimated mortality of 
black-footed albatrosses in the Hawaii-based longline fishery ranged 
from 1,000 to 2,500 per year in the mid-to late 1990s (McCracken 2001,

[[Page 57282]]

pp. 19-20; NMFS-PIRO unpublished data 2006). This mortality dropped 
beginning in 2001 (NMFS-PIRO, unpublished data 2006; NMFS-PIFSC 2003, 
p. 3), coincident with the closure of the shallow-set sector of the 
fishery by a Federal court order intended to protect listed sea turtles 
(NMFS 2001a (66 FR 31561)). The estimated incidental capture of black-
footed albatrosses fleet-wide was 1,339 in 2000 and dropped to an 
estimated total of 258 in 2001 (NMFS-PIRO unpublished data 2006). When 
the petition was submitted, the shallow-set fishery had just been 
reopened on a limited basis after a 3-year hiatus, with new measures in 
place to reduce the take of sea turtles (NMFS 2004a (69 FR 17329)). In 
the following year, however, the incidental mortality of black-footed 
albatrosses increased from an estimated 16 in 2004 to an estimated 89 
in 2005 (NMFS-PIRO unpublished data 2006). This fishery was closed 
again in March 2006 (NMFS 2006 (71 FR 14824)) because the limit on 
incidental capture of sea turtles established through the National 
Marine Fisheries Service (NMFS) consultation under section 7 of the Act 
had been reached. This temporary closure remained in effect until 
December 31, 2006. The shallow-set fishery reopened on January 1, 2007, 
with the same bycatch reduction measures in place to reduce the take of 
sea turtles as had been instituted previously.
    The petition describes the documented mortality rate of black-
footed albatrosses in Alaska-based demersal longline fisheries, and 
states that between 1993 and 2002, an observed 1,935 black-footed 
albatrosses were killed in Alaska-based fisheries (NMFS 2003). Although 
regulations promulgated in 2004 require measures to reduce the 
incidental mortality of seabirds in Alaska-based longline fisheries, 
including a suite of seabird deterrent devices and practices, the 
petition states that the rate of observer coverage is inadequate to 
monitor compliance with regulations requiring the use of seabird 
deterrents. According to information in our files, although all 
longline vessels greater than 26 feet ( 8 meters) in length operating 
out of Alaska are required to use seabird deterrents to minimize the 
incidental mortality of short-tailed albatrosses and other seabirds, 
vessels less than 26 feet (8 meters) in length are exempt from these 
requirements (NMFS 2004b, p. 1947). These seabird deterrents, 
particularly paired streamer lines, have proven to be highly effective 
under experimental conditions (Melvin et al. 2001, pp. 15-18), when 
constructed to appropriate specifications and deployed correctly 
(Melvin and Robertson 2000, p. 181). The largest vessels (greater than 
125 feet (38 meters) in length; approximately 128 of which operate out 
of Alaska), are required to carry observers 100 percent of the time. 
However, the halibut fishery, which in 2004 comprised more than 1,000 
smaller demersal longline vessels (J. Gharrett, NOAA Fisheries, pers. 
comm. 2006), is exempt from observer coverage (Alaska Fisheries Science 
Center (AFSC) 2006, p. 2).
    The petition states that the black-footed albatross remains at 
considerable risk of mortality from international fleets that are not 
required to employ the same seabird bycatch mitigation measures as U.S. 
fisheries, and contends that foreign pelagic and demersal longline 
fisheries account for a significant portion of the global annual 
mortality of black-footed albatross (Cooper 2000; Lewison and Crowder 
2003). Information in our files indicates that despite progress toward 
international seabird protection agreements, as of yet there is no 
binding treaty or law that requires international fleets to employ 
mitigation measures to reduce the incidental mortality of the black-
footed albatross throughout its range (Hall and Haward, p. 183). 
Although, as the petition describes, direct records of black-footed 
albatross mortality rates in non-U.S. fisheries are lacking (Cousins 
and Cooper 2000, p. 62; Tasker et al. 2000, p. 532), references cited 
by the petitioners and in our files describe the distribution and 
effort of the largest of these fisheries based on data available from 
the Secretariat of the Pacific Community (Lewison and Crowder 2003, p. 
744; SPC-OFP 2004). Furthermore, as indicated in the petition, data 
exists describing high rates of black-footed albatross mortality in 
U.S.-based longline fisheries. Information in our files indicates that 
non-U.S. longline fisheries combined represent an order of magnitude 
more fishing effort than the longline fisheries operating out of Alaska 
and Hawaii (e.g., Cousins et al. 2000, p. 165), and they are known to 
overlap with the foraging range of the black-footed albatross (e.g., 
Lewison and Crowder 2003, p. 745; Hyrenbach and Dotson 2003, pp. 396-
398, 401), suggesting that the degree of incidental mortality resulting 
from international fisheries may likely be greater than that observed 
in U.S.-based fisheries.
    Citing the results of studies that extrapolated total estimated 
mortality of black-footed albatrosses in all North Pacific longline 
fisheries, the petition states that the rate of mortality in U.S. and 
foreign longline fisheries in the North Pacific likely has population-
level effects (Cooper 2000; Lewison and Crowder 2003). The petition 
notes that species with a low reproductive rate such as the black-
footed albatross are susceptible to adult mortality, and even small 
changes in adult survival can affect population dynamics (Cousins and 
Cooper 2000; Lewison and Crowder 2003). The petition states that loss 
of breeding adults has a ``ripple effect'' in two ways: the current 
year's actual or potential breeding effort is lost (because a single 
adult cannot raise a chick) and several future years' effort is lost as 
well as the remaining adult seeks a new mate. Furthermore, incidental 
mortality of black-footed albatrosses in longline fisheries apparently 
is female-biased, thus exacerbating potential population level effects 
of fishery-related mortality on this highly monogamous species (Walsh 
and Edwards 2004).
    The petition states that there are numerous international and 
multilateral initiatives and advisory groups that have made 
recommendations for decreasing the incidental mortality of black-footed 
albatrosses and other seabirds in North Pacific fisheries. However, no 
binding agreement or international law yet exists that requires or 
enforces the use of seabird deterrents and minimization of this 
mortality in high-seas fisheries (e.g., Cousins et al. 2000, pp. 167-
168). The petition notes that mortality of black-footed albatrosses 
occurs incidental to fishing activities although the Migratory Bird 
Treaty Act of 1918 (MBTA), as amended, specifically prohibits take of 
migratory birds. The term ``take'' under the MBTA is defined as to 
``...pursue, hunt, shoot, wound, kill, trap, capture, or collect...'' 
(50 CFR 10.12). The petition contends that the take prohibition of the 
MBTA has not been enforced, and that incidental take of black-footed 
albatross by the longline fishing industry has not been adequately 
regulated.
    Although mitigation measures have reduced mortality of black-footed 
albatrosses in some (U.S.-based) fisheries, the information in the 
petition indicates that fishery-related threats to the species 
throughout its range are ongoing. We find that the petition presents 
substantial scientific or commercial information to indicate that the 
inadequacy of existing regulatory mechanisms may threaten the continued 
existence of the black-footed albatross.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

    The petition describes the high levels of contaminants, such as 
heavy metals

[[Page 57283]]

and organochlorines (e.g., polychlorinated biphenyls (PCBs) and 
dichloro-diphenyl-trichloroethane (DDT)), found in black-footed 
albatross tissue (Jones et al. 1994; Ludwig et al. 1998). These 
substances have been correlated with egg-shell thinning and embryo 
death in the black-footed albatross and are found in concentrations 
that have caused reproductive and neurological problems in other 
species (Jones et al. 1994; Ludwig et al. 1998).
    Information in our files indicates that black-footed albatross are 
exposed to contaminants via their diet (Finkelstein et al. 2006, p. 
681). Contaminants such as organochlorines and mercury biomagnify up 
the marine food chain and are at higher concentrations in long-lived 
marine predators (Finkelstein et al. 2006, pp. 678-679). Biomagnified 
concentrations of organochlorines and mercury are higher in North 
Pacific albatrosses than in species in the Southern hemisphere (where 
ambient levels of these contaminants are lower overall) (Guruge et al. 
2001, p. 392). In the North Pacific, concentrations of these 
contaminants are higher in black-footed than in Laysan albatrosses 
(Guruge et al. 2001, p. 392; Finkelstein et al. 2006, p. 680). As 
described in the petition, the organochlorine and mercury levels found 
in black-footed albatrosses in 1992 and 1993 were high enough to pose a 
toxicological risk and interfere with reproduction (Ludwig et al. 
1998). Information in our files supports the petition's contention that 
these contaminants may pose a threat to black-footed albatross. Since 
the petition was written, new information indicates that concentrations 
of PCBs and dichloro-diphenyl-dichloroethylene (DDE) in black-footed 
and Laysan albatrosses were reported to be 160 to 360 percent higher in 
samples from 2000 and 2001 than in samples from 1992 and 1993 
(Finkelstein et al. 2006, p. 684). The proportional increase found in 
the black-footed albatross over this time period was twice that 
observed in the Laysan albatross (Finkelstein et al. 2006, p. 684). 
Results of recent studies indicate that these contaminant levels are 
associated with altered immune function in black-footed albatrosses 
(Finkelstein et al., in review). In addition, black footed albatrosses 
are carrying organochlorine burdens at concentrations that have caused 
endocrine disruption and altered immune function in gulls and terns 
from the Great Lakes (Myra Finkelstein, University of California at 
Santa Cruz, pers. comm. 2006).
    We find that the petition presents substantial scientific or 
commercial information to indicate that the ingestion of a variety of 
contaminants, such as organochlorine compounds and heavy metals, may 
pose a threat to the continued existence of the black-footed albatross.

Finding

    We have reviewed the petition, literature cited in the petition, 
and information in our files. The petition presents reliable 
information to indicate that the lack of adequate regulatory mechanisms 
to minimize incidental mortality in commercial fisheries and the 
ingestion of environmental contaminants may threaten the black-footed 
albatross. The information in our files at this time supports the 
petition's statements regarding these threats to the black-footed 
albatross. Thus, on the basis of our review, we find that the petition 
presents substantial scientific or commercial information indicating 
that listing the black-footed albatross as threatened or endangered may 
be warranted, and we are initiating a status review of the species. At 
the conclusion of the status review which will involve a review of the 
information in, and results of, our status assessment currently being 
peer reviewed, we will issue a 12-month finding, in accordance with 
section 4(b)(3)(B) of the Act, as to whether or not the Service 
believes a proposal to list the species is warranted.
    We have reviewed the available information to determine if the 
existing and foreseeable threats pose an emergency. We have determined 
that although there are apparent threats to the species, they do not 
appear to be of such a magnitude as to pose an immediate and 
irreversible threat to the species such as to warrant emergency listing 
at this time. However, if at any time we determine that emergency 
listing of the black-footed albatross is warranted, we will seek to 
initiate an emergency listing.

References Cited

    A complete list of all references cited herein is available, upon 
request, from the Pacific Islands Fish and Wildlife Office (see 
ADDRESSES section above).

Author

    The primary author of this notice is the staff of the Pacific 
Islands Fish and Wildlife Office (see ADDRESSES section above).

Authority

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

    Dated: September 27, 2007.
Kenneth Stansell,
Deputy Director, Fish and Wildlife Service.
 [FR Doc. E7-19690 Filed 10-5-07; 8:45 am]
BILLING CODE 4310-55-P