[Federal Register Volume 73, Number 95 (Thursday, May 15, 2008)]
[Proposed Rules]
[Pages 28080-28084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10790]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2008-0049; 1111 FY08 MO-B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the Ashy Storm-Petrel (Oceanodroma homochroa) as 
Threatened or Endangered

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 the ashy storm-petrel (Oceanodroma 
homochroa) 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 ashy storm-petrel may be warranted. Therefore, with the 
publication of this notice, we are initiating a status review of the 
species to determine if listing the species is warranted. To ensure 
that the review is comprehensive, we are soliciting information and 
data regarding this species. We will make a determination on critical 
habitat for this species, which was also requested in the petition, if, 
and when, we initiate a listing action.

DATES: To allow us adequate time to conduct this review, we request 
that information be submitted on or before July 14, 2008.

ADDRESSES: You may submit information by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R8-ES-2008-0049; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.

We will not accept e-mail or faxes. We will post all information 
received at http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Information 
Solicited section below for more information).

FOR FURTHER INFORMATION CONTACT: Mike Long, Field Supervisor, Arcata 
Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521; 
telephone 707-822-7201; facsimile 707-822-8411. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Solicited

    When we make a finding that substantial information is presented 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 science 
and commercial information, we are soliciting additional information on 
the ashy storm-petrel. We request information from the public, other 
concerned governmental agencies, Native American Tribes, the scientific 
community, industry, or any other interested parties on the status of 
the

[[Page 28081]]

ashy storm-petrel throughout its range, including but not limited to:
    (1) The historical and current status and distribution of ashy 
storm-petrel; the species' biology and ecology; ongoing conservation 
measures for the species and its habitat; and threats to the species 
and its habitat.
    (2) The effects of potential threat factors that are the basis for 
a listing determination under section 4(a) of the Act, which are:
    (a) Present or threatened destruction, modification, or curtailment 
of the species' 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.
    (3) Timing within year, type, and amount of human activities (e.g., 
commercial and recreational fishing, tourism) at locations where ashy 
storm-petrels are known or suspected to breed, including but not 
limited to: Van Damme Rock (Mendocino County); Bird, Chimney, and 
Double Point Rocks (Marin County); the Farallon Islands (San Francisco 
County); Castle and Hurricane Point Rocks (Monterey County); San Miguel 
Island, Castle Rock, Prince Island, mainland locations and offshore 
islets at Vandenberg Air Force Base, Santa Cruz Island, Santa Barbara 
Island, Sutil Island, and Shag Rock (Santa Barbara County); Anacapa 
Island (Ventura County); Santa Catalina Island and San Clemente Island 
(Los Angeles County); and Islas Los Coronados and Islas Todos Santos, 
Mexico.
    (4) Projected changes in sea level along the coast of California 
during the 21st century, specifically at the locations listed in (3) 
above.
    (5) Elevations of known and suitable breeding habitat at the 
locations listed in (3) above.
    (6) Projected acidification of oceanic waters of the California 
Current during the 21st century.
    (7) Locations of oil tanker routes, and timing and frequency of oil 
tanker traffic along the coast of California and Northern Baja 
California, Mexico.
    (8) Nighttime observations of ashy storm-petrels, other storm-
petrels, other nocturnal seabirds (e.g., Xantus's murrelets 
(Synthliboramphus hypoleucus)), and other seabirds (e.g., gulls (Larus 
sp.)) on or near boats (commercial or recreational) off central and 
southern California and Baja California, Mexico.
    (9) Measured and observed nighttime lighting, and timing within 
year of nighttime lighting by boats (commercial and recreational) at 
locations listed in (3) above.
    (10) Daily and seasonal activity patterns of ashy storm-petrels and 
avian predators of ashy storm-petrels (e.g., western gull (Larus 
occidentalis), burrowing owl (Athene cunicularia)) at breeding 
locations in general and, specifically, in relation to light intensity 
at night.
    (11) Abundance and distribution of predators of ashy storm-petrels 
at ashy storm-petrel breeding locations.
    (12) Observations of ashy storm-petrels or other storm-petrels at 
night on offshore oil platforms, or additional evidence that ashy 
storm-petrels are attracted to or have collided with offshore oil 
platforms.
    (13) Locations of proposed offshore liquefied natural gas (LNG) 
facilities along the coast of California and Northern Baja California, 
Mexico.
    (14) Evidence of organochlorine contamination of ashy storm-petrel 
eggs and birds.
    (15) Ingestion of plastics by ashy storm-petrels, and distribution 
and abundance of plastics in the California Current.
    (16) Military activities at sea and on islands off the coast of 
California and northern Baja California, Mexico.
    (17) Factors that pose a threat to ashy storm-petrels (those listed 
above, and otherwise) and the potential cumulative effects of these 
factors that may threaten or endanger ashy storm-petrels.
    Please note that submissions merely stating support for or 
opposition to the action 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.'' Based on the status review, we will issue 
the 12-month finding on the petition, as provided in section 4(b)(3)(B) 
of the Act.
    You may submit your information concerning this finding by one of 
the methods listed in the ADDRESSES section. We will not consider 
submissions sent by e-mail or fax or to an address not listed in the 
ADDRESSES section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Information and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Arcata Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

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 the finding promptly in the Federal 
Register.
    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 
scientific or commercial information was presented, we are required to 
promptly commence a status review of the species.
    On October 16, 2007, we received a formal petition, dated October 
15, 2007, from the Center for Biological Diversity, requesting that we 
list the ashy storm-petrel. The petition also requested that critical 
habitat be designated concurrently with the listing. The petition 
clearly identified itself as a petition and included the requisite 
identification information as required in 50 CFR 424.14(a). Included in 
the petition was supporting information regarding the species' taxonomy 
and ecology, historical and current distribution, present status, and 
potential causes of decline and active imminent threats. In response to 
the petition, we sent a letter to the petitioner dated January 11, 
2008, stating that we had secured funding and

[[Page 28082]]

that we anticipated making an initial finding as to whether the 
petition contained substantial information indicating listing the ashy 
storm-petrel may be warranted in Fiscal Year 2008. We also concluded in 
our January 11, 2008, letter that emergency listing of the ashy storm-
petrel was not warranted.

Species Information

    The ashy storm-petrel is a seabird species belonging to the order 
Procellariiformes, family Hydrobatidae. The ashy storm-petrel is one of 
five storm-petrel species (including fork-tailed (O. furcata), Leach's 
(O. leucorhoa), black (O. melania), and least (O. microsoma) storm-
petrels) that nest on islands along the west coast of North America 
(Harrison 1983, pp. 272-278). The ashy storm-petrel is a smoke-gray, 
medium-sized bird with long slender wings, a long forked tail, and 
webbed feet (Ainley 1995, p. 2).
    Ashy storm-petrels have been confirmed to breed at 26 locations on 
islands and offshore rocks from Marin County, California, south to 
Todos Santos Islands, west of Ensenada, Baja California, Mexico (Carter 
et al. 1992, pp. 77-81; Ainley 1995, p. 2; Carter et al. 2006, p. 6; 
Carter et al. 2008, p. 118). In addition, ashy storm-petrels possibly 
breed at five locations from Mendocino County south to San Clemente 
Island (Carter et al. 2008, pp. 118-119). The species breeds primarily 
in two population centers at the Farallon Islands and in the California 
Channel Islands (Sowls et al. 1980, p. 24; Ainley et al. 1990, p. 135; 
Carter et al. 1992, p. 86). Ashy storm-petrels do not excavate burrows; 
rather, they nest in crevices of talus slopes, rock walls, sea caves, 
cliffs, and driftwood (James-Veitch 1970, pp. 87-88; Ainley et al. 
1990, p. 147; McIver 2002, p. 1).
    The breeding season is protracted, and activities at nesting 
locations occur from March through January (James-Veitch 1970, p. 71). 
Clutch size is one egg per year (Ainley 1995, p. 6). The egg-laying 
period extends from late March to October, peaking in June and July 
(James-Veitch 1970, p. 243; Ainley et al. 1990, p. 148; McIver 2002, 
pp. 34-36). The average period of incubation is 44 days (James-Veitch 
1970, p. 244). Hatchlings are ``semi-precocial'' (James-Veitch 1970, p. 
128). The term semi-precocial describes young that have characteristics 
of precocial young at hatch (open eyes, down, capacity to leave the 
nest), but that remain at the nest and are cared for by parents until 
close to adult size (Sibley 2001, p. 573). Chicks are brooded and 
attended by adults for approximately the first week of life, after 
which time they are left unattended in the nest during the day (James-
Veitch 1970, p. 141). Chicks are fed irregularly, once every 1 to 3 
nights on average (James-Veitch 1970, pp. 180-208). At Southeast 
Farallon Island, James-Veitch (1970, p. 212) reported a mean of 76 days 
from hatching to fledging; Ainley et al. (1990, p. 152) reported a mean 
of 84 days from hatching to fledging. Fledging occurs at night, from 
late August to January, and once they leave the nest, fledglings are 
independent of their parents (Ainley et al. 1974, p. 303; McIver 2002, 
p. 36). Nonbreeding ashy storm-petrels also visit breeding locations 
during the breeding season (James-Veitch 1970, pp. 242-243). Although 
visitations are reduced during the months of January and February, ashy 
storm-petrels visit nesting locations throughout the year, and most 
intensely from February into October (Ainley et al. 1974, p. 301).
    The nocturnal activity (return to and departure from nest) and 
crevice nesting of this species are adaptations to avoid predation by 
diurnal predators such as western gulls, burrowing owls, peregrine 
falcons (Falco peregrinus), and common ravens (Corvus corax) (Ainley 
1995, p. 5; McIver and Carter 2006, p. 3). Ashy storm-petrels are 
susceptible to predation at night by barn owls (Tyto alba) (McIver 
2002, p. 30). Nesting in crevices and burrows on remote headlands, 
offshore rocks, and islands generally reduces predation of storm-
petrels by mammalian predators (Warham 1990, p. 13). Known mammalian 
predators of ashy storm-petrels and their eggs include house mice (Mus 
musculus), deer mice (Peromyscus maniculatus), and island spotted 
skunks (Spilogale gracilis amphiala) (Ainley et al. 1990, p. 146; 
McIver 2002, pp. 40-41; McIver and Carter 2006, p. 3).
    Ashy storm-petrels are nonmigratory and forage primarily in the 
California Current from northern California to central Baja California, 
Mexico; birds forage in areas of upwelling, seaward of the continental 
shelf, near islands and the coast (Ainley et al. 1974, p. 300; Briggs 
et al. 1987, p. 23; Mason et al. 2007, p. 60). Four thousand to six 
thousand ashy storm-petrels are usually observed in the fall in 
Monterey Bay, approximately 3 to 10 miles (5 to 16 kilometers) off the 
town of Moss Landing, California, and as many as 10,000 ashy storm-
petrels were estimated to be present in Monterey Bay in October 1977 
(Roberson 1985, p. 42). Storm-petrels feed on small invertebrates and 
fish picked from the ocean surface (Warham 1990, p. 186). The diet of 
ashy storm-petrels has not been extensively studied, but includes 
euphausiids (spp. Euphausia, Thysanoessa), other crustaceans, 
unidentified fish and squid (G. McChesney, personal communication, 
1999).
    Obtaining direct population counts of ashy storm-petrels is 
difficult, because the species nests in often deep, inaccessible 
crevices (Carter et al. 1992, p. 77; Sydeman et al. 1998b, p. 438). The 
world population of ashy storm-petrels has been estimated to be on the 
order of 10,000 birds (Sowls et al. 1980, p. 24; Ainley 1995, p. 1); 
estimates of breeding birds for California have ranged from 5,187 
(Sowls et al. 1980, p. 25) to 7,209 (Carter et al. 1992, p. 87). 
Results from Sydeman et al. (1998b, p. 445) indicate a reduction in 
ashy storm-petrel population size at Southeast Farallon Island from 
1972 to 1992, ranging from 28 to 44 percent. Sydeman et al. (1998b, p. 
445) report that this decline occurred in prime nesting habitat and was 
apparently greater for breeding birds. Sydeman et al. (1998b, pp. 445-
446) suggest that this decline in population size at Southeast Farallon 
Island may be due, in part, to an increase in the predation rate on 
ashy storm-petrel adults and sub-adults by western gulls, which 
expanded into prime ashy storm-petrel nesting habitat over the course 
of their study.
    Research on reproductive success of the ashy storm-petrel has been 
conducted at Southeast Farallon Island (James-Veitch 1970; Ainley et 
al. 1990; Sydeman et al. 1998a; Sydeman et al., unpublished data) and 
Santa Cruz Island (McIver 2002; McIver et al., in preparation). 
Reported productivity values have been variable. For example, on 
Southeast Farallon Island, reported productivity values are: 0.40 
chicks per pair during 1964 to 1965 (James-Veitch 1970, p. 235); 0.69 
chicks per pair during 1972 to 1983 (Ainley et al. 1990, p. 155); 0.73 
chicks per pair during 1971 to 1995 (Sydeman et al. 1998a, p. 20) and 
0.52 chicks per pair during 1995 to 1998 (Sydeman et al., unpublished 
data). On Santa Cruz Island, reported productivity values are: 0.51 
chicks per pair during 1995 to 1998 (McIver 2002, p. 44); and 0.63 
chicks per pair during 2005 to 2007 (McIver et al., in preparation, p. 
25).
    No data are currently available regarding adult life span, 
survivorship, and age at first breeding of ashy storm-petrels (Ainley 
1995, p. 8). However, like other procellariids, storm-petrels are long-
lived (Warham 1996, p. 20). Some ashy storm-petrels reach 25 years old 
(Sydeman et al. 1998a, p. 7), and breeding adults over 20 years in age 
have been reported in the closely-related Leach's storm-petrel (Morse 
and

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Buchheister 1977, p. 344). Mean age of first breeding in the Leach's 
storm-petrel has been reported at 5.9 years  1.3 standard 
deviation (Huntington et al. 1996, p. 19). Sydeman et al. (1998a, p. 7) 
conducted population viability analyses based upon observations by C. 
Huntington, and assumed that 90 percent of adult ashy storm-petrels 
were capable of breeding at 6 years of age.

Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and implementing regulations 
at 50 CFR part 424, set forth the procedures for adding species to the 
Federal Lists 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 habitat or range; (B) overutilization for commercial, 
recreational, scientific, or educational purposes; (C) disease or 
predation; (D) inadequacy of existing regulatory mechanisms; or (E) 
other natural or manmade factors affecting its continued existence. In 
making this 90-day finding, we evaluated whether information on threats 
to the ashy storm-petrel in our files and presented with the October 
2007 petition constitute substantial scientific or commercial 
information such that listing under the Act may be warranted. Our 
evaluation of this information is presented below.

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

    The petitioner asserts that the ashy storm-petrel's island breeding 
habitat is being modified and degraded by artificial light pollution, 
introduced species, and current and future climate change; they further 
assert that its at-sea foraging habitat is being modified and degraded 
by artificial light pollution, chemical and plastics pollution, and 
current and future ocean climate change (Petition, p. 15).
    The market squid (Loligo opalescens) fishery is a source of 
artificial light at night near breeding locations in the California 
Channel Islands, and could result in increased mortality of storm-
petrels due to predation by diurnal predators and direct collision with 
lights (McIver 2002, pp. 51-2; Maxwell et al. 2004, pp. 666-69). Ashy 
storm-petrels have been recovered dead on an offshore oil platform off 
the coast of southern California, and from mainland locations in 
southern California, presumably due to attraction to and collision with 
bright lights (Carter et al. 2000, p. 443).
    In addition, oil pollution may pose a threat to ashy storm-petrels. 
A major oil spill off Monterey Bay during the fall could affect 
thousands of ashy storm-petrels that concentrate in that area (Roberson 
1985, p. 42; Sydeman et al. 1998, p. 439). Hampton et al. (2003, p. 32) 
analyzed dumping of tank washings of oil tankers at sea and suggested 
that the greatest threat of oiling existed for seabird species 
occurring (while at sea) greater than 80 kilometers (50 miles) 
offshore, including ashy storm-petrels.
    We found substantial evidence presented in the petition indicating 
that artificial light pollution near breeding colonies and at sea, and 
at-sea oil pollution may threaten ashy storm-petrels.

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

    The petitioner asserts that research activities may impact ashy 
storm-petrels, but also states that there is no evidence that this 
impact has had significant negative consequences on studied populations 
(Petition, p. 30). Therefore, we do not consider this a significant 
factor affecting the species.

C. Disease or Predation

    The petitioner asserts that predation by native predators, 
including western gulls, burrowing owls, barn owls, and peregrine 
falcons, and nonnative predators, including house mice (Mus musculus), 
black rats (Rattus rattus), and feral cats (Felis domesticus), impact 
ashy storm-petrel populations (Petition, pp. 30-32).
    Sydeman et al. (1998, pp. 438-447) reported an increase in the 
western gull population at Southeast Farallon Island, and an expansion 
of nesting by western gulls into prime nesting habitat of ashy storm-
petrels on the island. They suggested that the decline in population 
size of ashy storm-petrels at Southeast Farallon Island between the 
early 1970s and the early 1990s may be due (in part) to an increase in 
the predation rate on ashy storm-petrels by western gulls.
    We find substantial information presented in the petition 
indicating that predation at nesting colonies may threaten ashy storm-
petrels.

D. Inadequacy of Existing Regulatory Mechanisms

    The petitioner asserts that existing regulatory mechanisms have 
been ineffective at preventing the decline of the ashy storm-petrel and 
in mitigating many of the threats to the species (Petition, p. 32). The 
petitioner claims that the ineffectiveness of regulatory mechanisms is 
demonstrated by the failure to eradicate nonnative predators, the 
inadequate regulation of artificial light pollution, the failure to 
restrict human disturbance at breeding sites, the lack of regulations 
on greenhouse gases, and the failure of the Migratory Bird Treaty Act 
to protect the species from identified threats (Petition, pp. 32-35).
    As discussed above, we do find threats to the species from 
artificial light pollution and predation, and thus find that the 
petition presents substantial evidence that the inadequacy of existing 
regulatory mechanisms may threaten ashy storm-petrels.

E. Other Natural or Manmade Factors Affecting Continued Existence

    The petitioner cites human disturbance through tourism and military 
activities as the primary threats under this category (Petition, p. 
35). We do not find that the petition presents substantial information 
supporting the petitioner's claimed threats under this category. 
However, information in the petition indicates that the ashy storm-
petrel may be threatened by the contamination of eggs and birds by 
organochlorine chemicals.
    Eggshell thinning and organochlorine contamination of ashy storm-
petrel eggs have been documented during the 1970s and 1990s (Coulter 
and Risebrough, pp. 254-255; Fry 1994, pp. 1-29; Kiff 1994, pp. 1-24; 
D. Welsh and H. Carter, unpublished notes).
    We find that the petition presents substantial information that the 
contamination of eggs and birds by organochlorine chemicals may 
threaten ashy storm-petrels.

Finding

    We reviewed the petition, supporting information provided by the 
petitioner, and information in our files, and we evaluated that 
information to determine whether the sources cited support the claims 
made in the petition. Based on this review, we find that the petition 
presents substantial information indicating that the ashy storm-petrel 
may be threatened by Factor A, due to artificial light pollution near 
breeding colonies and at sea, and by at-sea oil pollution; by Factor C, 
due to predation at nesting colonies; by Factor D, due to the 
inadequacy of existing regulatory mechanisms; and by Factor E, due to 
contamination of eggs and birds by organochlorine chemicals.
    On the basis of our review, we find that the petition presents 
substantial information indicating that listing the ashy storm-petrel 
as threatened or endangered may be warranted.

[[Page 28084]]

Therefore, we are initiating a status review to determine if listing 
the species under the Act is warranted.
    The petitioner also requested that critical habitat be designated 
for the ashy storm-petrel. We always consider the need for critical 
habitat designation when listing species. If we determine in our 12-
month finding following the status review of the species that listing 
the ashy storm-petrel is warranted, we will address the designation of 
critical habitat at the time of the proposed rulemaking.

References Cited

    A complete list of all references cited in this document is 
available, upon request, from our Arcata Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT).

Author

    The primary author of this notice is the staff of the U.S. Fish and 
Wildlife Service, Arcata Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Authority

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

    Dated: May 6, 2008.
 Kenneth Stansell,
Acting Director, U.S. Fish and Wildlife Service.
 [FR Doc. E8-10790 Filed 5-14-08; 8:45 am]
BILLING CODE 4310-55-P