[Federal Register Volume 73, Number 244 (Thursday, December 18, 2008)]
[Proposed Rules]
[Pages 77303-77332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29670]



[[Page 77303]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R9-IA-2008-0118; 96000-1671-0000-B6]
RIN 1018-AW40


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition to List Five Penguin Species Under the Endangered Species 
Act, and Proposed Rule To List the Five Penguin Species

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and notice of 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the yellow-eyed penguin (Megadyptes antipodes), white-flippered 
penguin (Eudyptula minor albosignata), Fiordland crested penguin 
(Eudyptes pachyrhynchus), Humboldt penguin (Spheniscus humboldti), and 
erect-crested penguin (Eudyptes sclateri) as threatened species under 
the Endangered Species Act of 1973, as amended (Act). This proposal, if 
made final, would extend the Act's protection to these species. This 
proposal also constitutes our 12-month finding on the petition to list 
these five species. The Service seeks data and comments from the public 
on this proposed rule.

DATES: We will accept comments and information received or postmarked 
on or before February 17, 2009. We must receive requests for public 
hearings, in writing, at the address shown in the FOR FURTHER 
INFORMATION CONTACT section by February 2, 2009.

ADDRESSES: You may submit comments 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-R9-IA-2008-0118]; 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 comments by e-mail or fax. We will post all 
comments on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Public 
Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Pamela Hall, Branch Chief, Division of 
Scientific Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax 
Drive, Room 110, Arlington, VA 22203; telephone 703-358-1708; facsimile 
703-358-2276. If you use a telecommunications device for the deaf 
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions on this proposed rule. We particularly seek 
comments concerning:
    (1) Biological, commercial, trade, or other relevant data 
concerning any threats (or lack thereof) to this species and 
regulations that may be addressing those threats.
    (2) Additional information concerning the range, distribution, and 
population size of this species, including the locations of any 
additional populations of this species.
    (3) Any information on the biological or ecological requirements of 
the species.
    (4) Current or planned activities in the areas occupied by the 
species and possible impacts of these activities on this species.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
consider comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hardcopy comment 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 comments on http://www.regulations.gov.
    Comments 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, Division of Scientific Authority, 4401 N. Fairfax 
Drive, Room 110, Arlington, VA 22203; telephone 703-358-1708.

Background

    Section 4(b)(3)(A) of the Act (16 U.S.C. 1533(b)(3)(A)) requires 
the Service to make a finding known as a ``90-day finding'' on whether 
a petition to add, remove, or reclassify a species from the list of 
endangered or threatened species has presented substantial information 
indicating that the requested action may be warranted. To the maximum 
extent practicable, the finding shall be made within 90 days following 
receipt of the petition and published promptly in the Federal Register. 
If the Service finds that the petition has presented substantial 
information indicating that the requested action may be warranted 
(referred to as a positive finding), section 4(b)(3)(A) of the Act 
requires the Service to commence a status review of the species if one 
has not already been initiated under the Service's internal candidate 
assessment process. In addition, section 4(b)(3)(B) of the Act requires 
the Service to make a finding within 12 months following receipt of the 
petition on whether the requested action is warranted, not warranted, 
or warranted but precluded by higher-priority listing actions (this 
finding is referred to as the ``12-month finding''). Section 4(b)(3)(C) 
of the Act requires that a finding of warranted but precluded for 
petitioned species should be treated as having been resubmitted on the 
date of the warranted but precluded finding, and is, therefore, subject 
to a new finding within 1 year and subsequently thereafter until we 
take action on a proposal to list or withdraw our original finding. The 
Service publishes an annual notice of resubmitted petition findings 
(annual notice) for all foreign species for which listings were 
previously found to be warranted but precluded.
    In this notice, we announce a warranted 12-month finding and 
proposed rule to list five penguin taxa as threatened species under the 
Act, yellow-eyed penguin, white-flippered penguin, Fiordland crested 
penguin, Humboldt penguin, and erect-crested penguin. We will announce 
the 12-month findings for the African penguin (Spheniscus demersus), 
emperor penguin (Aptenodytes forsteri), southern rockhopper penguin 
(Eudyptes chrysocome), northern rockhopper penguin (Eudyptes 
chrysolophus), and macaroni penguin (Eudyptes chrysolophus) in one or 
more separate Federal Register notice(s).

Previous Federal Actions

    On November 29, 2006, the Service received a petition from the 
Center for Biological Diversity to list 12 penguin species under the 
Act: Emperor penguin, southern rockhopper penguin, northern rockhopper 
penguin, Fiordland crested penguin, snares crested penguin (Eudyptes 
robustus),

[[Page 77304]]

erect-crested penguin, macaroni penguin, royal penguin (Eudyptes 
schlegeli), white-flippered penguin, yellow-eyed penguin, African 
penguin, and Humboldt penguin. Among them, the ranges of the 12 penguin 
species include Antarctica, Argentina, Australian Territory Islands, 
Chile, French Territory Islands, Namibia, New Zealand, Peru, South 
Africa, and United Kingdom Territory Islands. The petition is clearly 
identified as such, and 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.
    In the Federal Register of July 11, 2007 (72 FR 37695), we 
published a 90-day finding in which we determined that the petition 
presented 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. Furthermore, we determined that the 
petition did not provide substantial scientific or commercial 
information indicating that listing the snares crested penguin and the 
royal penguin as threatened or endangered species may be warranted.
    Following the publication of our 90-day finding on this petition, 
we initiated a status review to determine if listing each of the 10 
species is warranted, and opened a 60-day public comment period to 
allow all interested parties an opportunity to provide information on 
the status of the 10 species of penguins. The public comment period 
closed on September 10, 2007. In addition, we attended the 
International Penguin Conference in Hobart, Tasmania, Australia, a 
quadrennial meeting of penguin scientists from September 3-7, 2007 
(during the open public comment period), to gather information and to 
ensure that experts were aware of the status review and the open 
comment period. We also consulted with other agencies and range 
countries in an effort to gather the best available scientific and 
commercial information on these species.
    During the public comment period, we received over 4,450 
submissions from the public, concerned governmental agencies, the 
scientific community, industry, and other interested parties. 
Approximately 4,324 e-mails and 31 letters received by U.S. mail or 
facsimile were part of one letter-writing campaign and were 
substantively identical. Each letter supported listing under the Act, 
included a statement identifying ``the threat to penguins from global 
warming, industrial fishing, oil spills and other factors,'' and listed 
the 10 species included in the Service's 90-day finding. A further 
group of 73 letters included the same information plus information 
concerning the impact of ``abnormally warm ocean temperatures and 
diminished sea ice'' on penguin food availability and stated that this 
has led to population declines in southern rockhopper, Humboldt, 
African, and emperor penguins. These letters stated that the emperor 
penguin colony at Point Geologie has declined more than 50 percent due 
to global warming and provided information on krill declines in large 
areas of the Southern Ocean. They stated that continued warming over 
the coming decades will dramatically affect Antarctica, the sub-
Antarctic islands, the Southern Ocean and the penguins dependent on 
these ecosystems for survival. A small number of general letters and e-
mails drew particular attention to the conservation status of the 
southern rockhopper penguin in the Falkland Islands.
    Twenty submissions provided detailed, substantive information on 
one or more of the 10 species. These included information from the 
governments, or government-affiliated scientists, of Argentina, 
Australia, Namibia, New Zealand, Peru, South Africa, and the United 
Kingdom, from scientists, from 18 members of the U.S. Congress, and 
from one non-governmental organization (the original petitioner).
    On December 3, 2007, the Service received a 60-day Notice of Intent 
to Sue from the Center for Biological Diversity (CBD). CBD filed a 
complaint against the Department of the Interior on February 27, 2008, 
for failure to make a 12-month finding on the petition. On September 8, 
2008, the Service entered into a Settlement Agreement with CBD, in 
which we agreed to submit to the Federal Register 12-month findings for 
the 10 species of penguins, including the five penguin taxa that are 
the subject of this proposed rule, on or before December 19, 2008.
    We base our findings on a review of the best scientific and 
commercial information available, including all information received 
during the public comment period. 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 higher priority listing actions.

Species Information and Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and its 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. The five factors are: (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; and (E) other natural or manmade 
factors affecting its continued existence.
    Below is a species-by-species analysis of these five factors. The 
species are considered in the following order: Yellow-eyed penguin, 
white-flippered penguin, Fiordland crested penguin, Humboldt penguin, 
and erect-crested penguin.

Yellow-Eyed Penguin (Megadyptes antipodes)

Background

    The yellow-eyed penguin, also known by its Maori name, hoiho, is 
the third largest of all penguin species, averaging around 24 pounds 
(lb) (11 kilograms (kg)) in weight. It is the only species in the 
monotypic genus Megadyptes. Yellow-eyed penguins breed on the southeast 
coast of New Zealand's South Island, from Banks Peninsula to Bluff at 
the southern tip; in Fouveaux Strait, and on Stewart and adjacent 
islands just 18.75 mi (30 km) from the southern tip of the New Zealand 
mainland; and at the sub-Antarctic Auckland and Campbell Islands, 300 
mi (480 km) and 380 mi (608 km), respectively, south of the southern 
tip of the South Island. The distribution is thought to have moved 
north since the 1950s (McKinlay 2001, p. 8). The species is confined to 
the seas of the New Zealand region and forages over the continental 
shelf (Taylor 2000, p. 93).

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    Unlike more strongly colonial breeding penguin species, yellow-eyed 
penguins nest in relative seclusion, out of sight of humans and one 
another (Wright, 1998, pp. 9-10; Ratz and Thompson 1999, p. 205). 
Current terrestrial habitats range from native forest to grazed pasture 
(McKinlay 2001, p. 10). In some places, they nest in restored areas 
and, in other places, they nest in areas where livestock are still 
present (McKinlay 2001, p. 10). Prior to land clearing for agriculture 
by European settlers, historic habitat was in coastal forests and shrub 
margins (Marchant and Higgins 1990, p. 237).
    The New Zealand Department of Conservation (DOC) published the 
Hoiho (Megadyptes antipodes) Recovery Plan (2000-2025) (Recovery Plan) 
in 2001 to state the New Zealand DOC's intentions for the conservation 
of this species, to guide the New Zealand DOC in its allocation of 
resources, and to promote discussion among the interested public 
(McKinlay 2001, p. 20). The goal of the Recovery Plan, which updates a 
1985-1997 plan previously in place, is to increase yellow-eyed penguin 
numbers and have active community involvement in their conservation. 
The primary emphasis over the 25-year period is to ``retain, manage and 
create terrestrial habitat'' and to ``investigate the mortality of 
hoiho at sea'' (McKinlay 2001, p. 2).
    Current estimates place the total population at 1,602 breeding 
pairs (Houston 2007, p. 3).
    In the recent past, the number of breeding pairs has undergone 
dramatic periods of decline and fluctuation in parts of its range on 
the mainland of the South Island. Records suggest that the mainland 
populations declined at least 75 percent from the 1940s to 1988, when 
there were 380 to 400 breeding pairs (Darby and Seddon 1990, p. 59). 
There have been large fluctuations since a low of about 100 breeding 
pairs in the 1989-90 breeding season to over 600 in the 1995-96 
breeding season (McKinlay 2001, p. 10). Current mainland counts 
indicate 450 breeding pairs on the southeast coast of the mainland of 
the South Island (Houston 2007, p. 3). As recently as the 1940s, there 
were reported to be individual breeding areas where penguin numbers 
were estimated in the hundreds; in 1988, only three breeding areas on 
the whole of the South Island had more than 30 breeding pairs (Darby 
and Seddon 1990, p. 59).
    Just across the Fouveaux Strait at the southern tip of the South 
Island, at Stewart Island and nearby Codfish Island, yellow-eyed 
penguin populations numbered an estimated 178 pairs in the early 2000s 
(Massaro and Blair 2003, p. 110). While these populations are 
essentially contiguous with the mainland range, this is the first 
population estimate for this area based on a comprehensive count and it 
is lower than previous estimates. It is unclear whether numbers have 
declined in the past 2 decades or whether previous estimates, which 
extrapolated from partial surveys, were overestimates (Massaro and 
Blair 2003, p. 110), but evidence points to the latter. For example, 
Darby and Seddon (1990, p. 58) provided 1988 estimates of 470 to 600 
breeding pairs which were extrapolated from density estimates. In the 
Hoiho Recovery plan, which reported these 1998 numbers, it is noted 
that, ``In the case of Stewart Island, these figures should be treated 
with a great deal of skepticism. Only a partial survey was completed in 
the early 1990's'' (McKinlay 2001, p. 8). Darby (2003, p. 148), one of 
the authors of the earlier estimate, subsequently reviewed survey data 
from the decade between 1984 and 1994 and revised the estimates for 
this region down to 220 to 400 pairs. In conclusion, while it is 
reported that the numbers of birds at Stewart and Codfish Islands have 
declined historically (Darby and Seddon 1990, p. 57), it is unclear to 
what extent declines are currently underway. Houston (2008, p. 1) 
reported numbers are stable in all areas of Stewart and Codfish 
Islands, except in the northeast region of Stewart Island where disease 
and starvation are impacting colonies, as discussed in detail below.
    In the sub-Antarctic island range of the yellow-eyed penguin, there 
are an estimated 404 pairs on Campbell Island (down from 490 to 600 
pairs in 1997); and 570 pairs on the Auckland Islands (Houston, 2007, 
p. 3).
    The yellow-eyed penguin is listed as `Endangered' by IUCN 
(International Union for Conservation of Nature) criteria (BirdLife 
International 2007, p. 1). When the New Zealand Action Plan for Seabird 
Conservation was completed in 2000, the species' IUCN Status was 
`Vulnerable,' and it was listed as Category B (second priority) on the 
Molloy and Davis threat categories employed by the New Zealand DOC 
(Taylor 2000, p. 33). On this basis, the species was placed in the 
second tier in New Zealand's Action Plan for Seabird Conservation. The 
species is listed as `acutely threatened--nationally vulnerable' on the 
New Zealand Threat Classification System List (Hitchmough et al. 2007, 
p. 45; Molloy et al. 2002, p. 20).

Summary of Factors Affecting the Yellow-Eyed Penguin

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Yellow-Eyed Penguin's Habitat or Range

    Deforestation and the presence of grazing animals and agricultural 
activities have destroyed or degraded yellow-eyed penguin habitat 
throughout the species' range on the mainland South Island of New 
Zealand and much of the decline in breeding numbers can be attributed 
to loss of habitat (Darby and Seddon 1990, p. 60; Taylor 2000, p. 94). 
The primary historic habitat of the reclusive yellow-eyed penguin on 
the southeast coast of the South Island of New Zealand was the podocarp 
hardwood forest. During the period of European settlement of New 
Zealand, almost all of this forest has been cleared for agriculture, 
with forest clearing activities continuing into at least the 1970s 
(Sutherland 1999, p. 18). This has eliminated the bulk of the historic 
mainland breeding vegetation type for this species (Marchant and 
Higgins 1990, p. 237). With dense hardwood forest unavailable, the 
breeding range of yellow-eyed penguins has now spread into previously 
unoccupied habitats of scrubland, open woodland, and pasture (Marchant 
and Higgins 1990, p. 237). Here the breeding birds are exposed to new 
threats. In agricultural areas, breeding birds are exposed to trampling 
of nests by domestic cattle. For example, at the mainland Otago 
Peninsula in 1985, 25 out of 41 nests (60 percent) were destroyed by 
cattle (Marchant and Higgins 1990, p. 238). In some cases, efforts to 
fence penguin reserves to reduce trampling by cattle have created more 
favorable conditions for attack by introduced predators (see Factor C) 
(Alterio et al. 1998, p. 187). Yellow-eyed penguins are also more 
frequently exposed to fire in these new scrubland and agricultural 
habitats, such as a devastating fire in 1995 at the Te Rere Yellow-eyed 
Penguin Reserve in the southern portion of the mainland of the South 
Island, which killed more than 60 adult penguins out of a population of 
100 adults at the reserve as well as fledgling chicks on shore 
(Sutherland 1999, p. 2; Taylor 2000, p. 94). Five years after the fire, 
there was little evidence of recovery of bird numbers at this reserve 
(Sutherland 1999, p. 3), although there had been considerable efforts 
to restore the land habitat through plantings, creation of firebreaks, 
and predator control.
    Habitat recovery efforts, dating as far back as the late 1970s and 
set out in the 1985-1997 Hoiho Species Conservation

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Plan (McKinlay 2001, p. 12), have focused on protecting and improving 
breeding habitats. Habitat has been purchased or reserved for penguins 
at the mainland Otago Peninsula, North Otago and Catlins sites, with 20 
mainland breeding locations (out of an estimated 32 to 42) reported to 
be under ``statutory'' protection against further habitat loss (Ellis 
1998, p. 91) and new, currently unoccupied areas have been acquired to 
provide the potential to support increased populations in the future 
(McKinlay 2001, p. 12). Fencing and re-vegetation projects have been 
carried out to restore nesting habitat to exclude grazing animals from 
breeding habitats (McKinlay 2001, p. 12). Despite these efforts, 
yellow-eyed penguin numbers on the mainland have not increased and have 
continued to fluctuate dramatically around low levels of abundance, 
with no sustained increases over the last 27 years (McKinlay 2001, p. 
10). Although we did not rely on future conservation efforts by New 
Zealand in our analysis of threats, we note that efforts in the second 
phase of the Hoiho Recovery Plan continue to focus on managing, 
protecting, and restoring the terrestrial habitat of the yellow-eyed 
penguin (McKinlay 2001, p. 15).
    On the offshore and sub-Antarctic islands of its range, feral 
cattle and sheep destroyed yellow-eyed penguin nests on Enderby and 
Campbell Islands (Taylor 2000, p. 94). All feral animals were removed 
from Enderby Island in 1993, and from Campbell Island in 1984 (cattle) 
and 1991 (sheep) (Taylor 2000, p. 95). There has been reported to be 
very little change in the terrestrial habitat of the yellow-eyed 
penguin habitat on these islands (McKinlay 2001, p. 7).
    Significant public and private efforts have been undertaken in New 
Zealand over past decades to protect and restore yellow-eyed penguin 
breeding habitat on the mainland South Island. Individual locations 
remain susceptible to fire or other localized events, but the threat of 
manmade habitat destruction has been reduced over the dispersed range 
of the species on the mainland South Island. Nevertheless, recovery 
goals for mainland populations have not been achieved. Specifically, 
the goal in the 1985-1997 recovery plan of maintaining two managed 
mainland populations, each with a minimum of 500 pairs was not achieved 
(McKinlay 2001, p. 13) and, 8 years into the 2000-2025 recovery plan, 
the long-term goal to increase yellow-eyed penguin populations remains 
elusive. In our analysis of other threat factors, in particular Factor 
C, we will further examine why these goals have not been met. The 
species' island breeding habitats have either not been impacted or, if 
historically impacted, the causes of disturbance have been removed. For 
this reason, we find that the present or threatened destruction, 
modification, or curtailment of its terrestrial habitat or range is not 
a threat to the species in any portion of its range.
    In the marine environment, yellow-eyed penguins forage locally 
around colony sites during the breeding season. They feed on a variety 
of fish and squid species including opal fish (Hemerocoetes 
monopterygius), blue cod (Parapercis colias), sprat (Sprattus 
antipodum), silverside (Argentina elongata), red cod (Pseudophycis 
bachus), and arrow squid (Nototodarus sloani). Birds tracked from 
breeding areas on the Otago Peninsula on the mainland of the South 
Island foraged over the continental shelf in waters from 131 to 262 
feet (ft) (40 to 80 meters (m)) deep. In foraging trips lasting on 
average 14 hours, they ranged a median of 8 mi (13 km) from the 
breeding area (Moore 1999, p. 49). Foraging ranges utilized by birds at 
the offshore Stewart Island were quite small (ca. 7.9 mi\2\ (20.4 
km\2\)) compared to the areas used by birds at the adjacent Codfish 
Islands (ca. 208 mi\2\ (540 km\2\)) (Mattern et al. 2007, p. 115).
    There is evidence that modification of the marine environment by 
human activities may reduce the viability of foraging areas for yellow-
eyed penguins on a local scale. Mainland population declines in 1986-
1987 have been attributed to ``changes in the marine environment and 
failure of quality food'' (McKinlay 2001 p. 9), but we have not found 
evidence attributing recent population changes at either mainland 
colonies or the more distant Campbell and Auckland Islands' colonies to 
changes in the marine environment.
    Mattern et al. (2007, p. 115) concluded that degradation of benthic 
habitat by commercial oyster dredging is limiting viable foraging 
habitat and increasing competition for food for a small portion of 
Stewart Island penguins breeding in areas on the northeast coast of 
that island, resulting in chick starvation (King 2007, p. 106). Chick 
starvation and disease are the two most important causes of chick death 
at the northeast Stewart Island study colonies (King 2007, p. 106), and 
poor chick survival and, presumably, poor recruitment of new breeding 
pairs, is the main cause of a decline in the number of breeding pairs 
(King 2007, p. 106). At the adjacent Codfish Island, where food is more 
abundant and diverse (Browne et al. 2007, p. 81), chicks have been 
found to flourish even in the presence of disease. Browne et al. (2007, 
p. 81) found dietary differences between the two islands, with Stewart 
Island chicks receiving meals comprised of fewer species and less 
energetic value than those at Codfish Island. The foraging grounds of 
these two groups do not overlap, suggesting that local-scale influences 
in the marine environment (Mattern et al. 2007, p. 115) are impacting 
the Stewart Island penguins. These authors concluded that degradation 
of benthic habitat by commercial oyster dredging is limiting foraging 
habitat for yellow-eyed penguins at Stewart Island. The 178 pairs on 
Stewart Island and adjacent islands make up 11 percent of the total 
current population, and only a portion of this number are affected by 
the reported degradation of benthic habitat by fisheries activities. 
Therefore, while the present or threatened destruction, modification, 
or curtailment of its marine habitat or range by commercial oyster 
dredging is a threat to chick survival for some colonies at Stewart 
Island, we find that the present or threatened destruction, 
modification, or curtailment of its marine habitat or range is not a 
threat to the species in any other portion of its range.

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

    The yellow-eyed penguin has become an important part of the 
ecotourism industry on the mainland South Island of New Zealand, 
particularly around the Otago Peninsula and the Southland areas. We are 
not aware of tourism activities in the island portions of the range of 
the yellow-eyed penguin. Yellow-eyed penguins are extremely wary of 
human presence and will not land on the beach if humans are in sight. 
They select nest-sites with dense vegetative cover and a high degree of 
concealment (Marchant and Higgins 1990, p. 240) and prefer to be shaded 
from the sun and concealed from their neighbors (Seddon and Davis 1989, 
p. 653). Given these secretive habits, research has focused on the 
potential of increasing tourism to impact yellow-eyed penguins. In one 
study, yellow-eyed penguins showed lower breeding success in areas of 
unregulated tourism than in those areas visited infrequently for 
monitoring purposes only (McClung et al. 2004, p. 279). In another 
study, no impacts of tourist presence were found (Ratz and Thompson 
1999, p. 208). In another study disturbance was associated with 
increased corticosterone levels (associated with stress) in parents and 
lower fledgling weights of chicks

[[Page 77307]]

(Ellenberg et al. 2007a, p. 54). The key impact from human disturbance 
described in the Recovery Plan is that incoming yellow-eyed penguins 
may not come ashore or may leave the shore prematurely after landing. 
These and more recent studies (Ellenberg et al. 2007b, p. 31) have 
provided information that is already being used in the design of 
visitor management and control procedures at yellow-eyed penguin 
viewing areas to minimize disturbance to breeding pairs. The Hoiho 
Recovery Plan identifies 14 mainland areas where current practices of 
viewing yellow-eyed penguins already minimize tourism impacts on 
yellow-eyed penguins and recommends that practices in these areas 
remain unchanged. Eight additional areas are identified as suitable for 
development as tourist destinations to observe yellow-eyed penguins 
where minimization of tourism impacts can be achieved (McKinlay 2001, 
p. 21). These existing lists are being used to guide the approval of 
tourism concessions by the New Zealand DOC. Overall, under the plan, 
tourism is being directed to those sites where impacts of tourism can 
be minimized.
    Tourism is the primary commercial, recreational, and educational 
use of the yellow-eyed penguin. We have found no reports of impacts on 
this species from scientific research or any other commercial, 
recreational, scientific, or educational purposes.
    We find that the New Zealand DOC through its Hoiho Recovery Plan 
has put in place measures, in cooperation with conservation, tourism, 
and industry stakeholders, to understand and minimize the impacts of 
tourism activities on the yellow-eyed penguin. For this reason, we find 
that overutilization for commercial, recreational, scientific, or 
educational purposes is not a threat to the yellow-eyed penguin in any 
portion of its range.

Factor C. Disease or Predation

    Disease has been identified as a factor influencing both adult and 
chick mortality in yellow-eyed penguins. We have identified reports of 
one major disease outbreak involving adult penguins and ongoing reports 
of disease in yellow-eyed penguin chicks.
    Initial investigation of a major die-off of adult yellow-eyed 
penguins at Otago Peninsula in 1990 failed to identify the etiology of 
the deaths (Gill and Darby 1993, p. 39). This involved mortality of 150 
adult birds or 31 percent of a mainland population estimated at the 
time to include 240 breeding pairs. Subsequent investigation of avian 
malaria seroprevalence among yellow-eyed penguins found that the 
mortality features, climatological data, and pathological and 
serological findings at the time conformed to those known for avian 
malaria outbreaks (Graczyck et al. 1995, p. 404), leading the authors 
to conclude that avian malaria was responsible for the die-off. These 
authors associated the outbreak with a period of warmer than usual sea 
and land temperatures. More recently, Sturrock and Tompkins (2007, pp. 
158-160) looked for DNA from malarial parasites in yellow-eyed penguins 
and found that all samples were negative. This suggests that earlier 
serological tests were overestimating the prevalence of infection or 
that infection was transient or occurred in age classes not sampled in 
their current study. While this raises questions as to the role of 
avian malaria in the 1990 mortality event, the authors noted, given the 
spread of avian malaria throughout New Zealand and previous results 
indicating infection and mortality in yellow-eyed penguins, that 
continued monitoring of malarial parasites in this species should be 
considered an essential part of their management until the issue of 
their susceptibility is resolved. There have been no subsequent 
disease-related die-offs of adult yellow-eyed penguins at mainland 
colonies since the 1990s (Houston 2007, p. 3).
    The haemoparasite Leucocytozoon, a blood parasite spread by 
blackflies, was first identified in yellow-eyed penguins at the 
offshore Stewart and Codfish Islands in 2004 (Hill et al. 2007, p. 96) 
and was one contributor to high chick mortality at Stewart Islands in 
2006-07, which involved loss of all 32 chicks at the northeast Anglem 
Coast monitoring area of the Yellow-eyed Penguin Trust. This disease 
may have spread from Fiordland crested penguins which are known to 
house this disease (Taylor 2000, p. 59). Chick mortality was also 
reported at this area in 2007-08 (Houston, pers. comm. 2008). It is not 
clear if the Leucocytozoon predisposes animals to succumb from other 
factors, such as starvation or concurrent infection with other 
pathogens (such as diphtheritic stomatitis), or is the factor that 
ultimately kills them, but over 40 percent of chick mortality over 
three breeding seasons at Stewart Island study colonies was attributed 
to disease (King 2007, p. 106). The survival of infected chicks at 
nearby Codfish Island, where food is more abundant, indicates that 
nutrition can make a difference in whether mortality occurs in diseased 
chicks (Browne et al. 2007, p. 81; King 2007, p. 106). Healthy adults 
who are infected, but not compromised, by this endemic disease provide 
a reservoir for infection of new chicks through the vector of 
blackflies. No viable method of treatment for active infections in 
either chicks or adults has been identified.
    At the mainland Otago Peninsula in the 2004-05 breeding season, an 
outbreak of Corynebacterium infection (diptheritic stomatitis, 
Corynebacterium amycolatum) caused high mortality in yellow-eyed 
penguin chicks (Houston 2005, p. 267) at many colonies in the mainland 
range and on Stewart Island (where it may have been a contributing 
factor to the mortalities discussed above from Leucocytozoon). 
Mortality was not recorded at Codfish Island or at the sub-Antarctic 
islands (Auckland and Campbell Islands). The disease produced lesions 
in the chicks' mouths and upper respiratory tract and made it difficult 
for the chicks to swallow. All chicks at Otago displayed the symptoms 
with survival being better in older, larger chicks. Treatment with 
broad spectrum antibiotics was reported to have achieved ``varying 
results,'' and it is not known how this disease is triggered (Houston 
2005, p. 267).
    In summary, disease has seriously impacted both mainland and 
Stewart Island populations of yellow-eyed penguins over the past two 
decades. A mainland mortality event in 1990, attributed to avian 
malaria, killed 31 percent of the mainland adult population of yellow-
eyed penguin. While there is lack of scientific certainty over the 
impact of malaria on yellow-eyed penguins, the overall spread of this 
disease, the small population size of yellow-eyed penguins, and 
evidence of its presence in their populations lead us to conclude that 
this is an ongoing threat. Disease events contributed to or caused 
mortality of at least 20 percent of chicks at Stewart Island in 2006-07 
and complete mortality in local colonies. The continuing contribution 
to yellow-eyed penguin chick mortality from Leucocytozoon and 
diptheritic stomatitus at Stewart Island and the recent high 
mortalities of mainland chicks from diptheritic stomatitis indicate the 
potential for future emergence or intensified outbreaks of these or new 
diseases. The emergence of disease at both mainland and Stewart Island 
populations in similar time periods and the likelihood that 
Leucocytozoon was spread to the yellow-eyed penguin from the Fiordland 
crested penguin point out the significant possibility of future 
transmission of known diseases between colonies or between species, and 
the possibility of emergence of new diseases at any of the four 
identified breeding locations of the yellow-eyed penguin. Therefore, on 
the

[[Page 77308]]

basis of the best available scientific information, we conclude that 
disease is a threat to the yellow-eyed penguin throughout all of its 
range.
    Predation of chicks, and sometimes adults, by introduced stoats 
(Mustela erminea), ferrets (M. furo), cats (Felis catus), and dogs 
(Canis domesticus) is the principal cause of yellow-eyed penguin chick 
mortality on the South Island with up to 88.5 percent of chicks in any 
given habitat being killed by predators (Alterio et al. 1998, p. 187; 
Clapperton 2001, p. 187, 195; Darby and Seddon 1990, p. 45; Marchant 
and Higgins 1990, p. 237; McKinlay et al. 1997, p. 31; Ratz et al. 
1999, p. 151; Taylor 2000, pp. 93-94). In a 6-year, long-term study of 
breeding success of yellow-eyed penguins in mainland breeding areas, 
predation accounted for 20 percent of chick mortality overall, and was 
as high as 63 percent overall in one breeding season (Darby and Seddon 
1990, p. 53). Proximity to farmland and grazed pastures was found to be 
a factor accounting for high predator densities and high predation with 
88 percent predation at one breeding area adjacent to farmland (Darby 
and Seddon 1990, p. 57). In a study of cause of death of 114 yellow-
eyed penguin carcasses found on the South Island mainland between 1996 
and 2003, one-quarter were attributed to predation, with dogs and 
mustelids the most common predators (Hocken 2005, p. 4).
    In light of this threat, protection of chicks from predators is a 
primary objective under the second Hoiho Recovery Plan (2000-2025). 
Approaches to predator control are being established and refined at 
breeding sites on the mainland (McKinlay et al. 1997, pp. 31-35), 
targeting ferrets, stoats, and cats. The New Zealand DOC has concluded 
that this is a threat which may be manageable with trapping or other 
cost-effective methods to protect chicks in nests (McKinlay 2001, p. 
18). Analysis in the recovery plan indicates that a minimum protection 
of 43 percent of nests would be needed to ensure population growth 
(McKinlay 2001, p. 18). The recovery plan establishes a goal of 
protecting 50 percent of all South Island nests from predators between 
2000 and 2025. Where intensive predator control regimes have been put 
in place, they are effective (McKinlay et al. 1997, p. 31), capturing 
69 to 82 percent of predators present. In a long-term analysis of three 
closely monitored study colonies, which make up roughly half the nests 
at the Otago Peninsula and about 10 to 20 percent of the nests on the 
mainland, Lalas et al. (2007, p.237) found that the threat of predation 
on chicks by introduced terrestrial mammals had been mitigated by 
trapping and shooting, and no substantial predation events had occurred 
between 1984 and 2005. We do not have information on the extent to 
which anti-predator measures are in place for the remaining 80 to 90 
percent of yellow-eyed penguin nests on the mainland of the South 
Island of New Zealand. Other efforts to remove or discourage predation 
have not been as successful. A widely applied approach of establishing 
``vegetation buffers'' around yellow-eyed penguin nest sites to act as 
barriers between predators and their prey was found to actually 
increase predation rates. Predators preferred the buffer areas and 
utilized penguin paths within them to gain easy access to penguin nests 
(Alterio et al. 1998, p. 189). Given these conflicting reports, we can 
not evaluate to what extent management efforts are moving toward the 
goal of protection of 50 percent of all yellow-eyed penguin nests on 
the mainland. Therefore, we conclude that predation from introduced 
terrestrial mammals is a threat to the yellow-eyed penguin on the 
mainland South Island of New Zealand.
    Offshore, at Stewart and Codfish Islands, there are a number of 
introduced predators, but mustelids are absent. Initial research 
indicated that the presence of feral cats could be depressing the 
population of yellow-eyed penguins at Stewart Island relative to 
adjacent islands without feral cats (Massaro and Blair 2003, p. 107). 
Subsequent research has not found direct evidence of predation by 
Stewart Island's large population of feral cats (King 2007, p. 106). 
Weka (Gallirallus australis) have been eradicated from Codfish Island, 
but may prey on eggs and small chicks in the Fouveaux Strait and some 
breeding islands in the Stewart Island region at the southern tip of 
New Zealand (Darby 2003, p. 152; Massaro and Blair 2003, p. 111).
    Some islands, including the Codfish and Bravo group, have Norway 
rats (Rattus norvegicus, R. exulans, R. rattus), which are thought to 
prey on small chicks (Massaro and Blair 2003, p. 107). Even though 
there are Norway rats present at Campbell Island, evidence of egg or 
chick predation by terrestrial mammalian predators was not observed at 
during two breeding seasons (Taylor 2000, pp. 93-94).
    At Auckland Island, it is reported that feral pigs (Sus scrofa) 
probably kill adults and chicks (Taylor 2000, pp. 93).
    Even as objectives are set to attempt to bring terrestrial 
predators under more effective control, an emerging threat at Otago 
Peninsula is predation by the New Zealand sea lion (Phocarctos 
hookeri). Since 1985, sea lions have re-colonized the area and 
predation of yellow-eyed penguins has increased. Penguin remains have 
been more frequently found in sea lion scat samples. Two penguin 
breeding sites in close proximity to the founding nursery area of 
female sea lions have been particularly impacted. The number of nests 
at these two colonies has declined sharply since predation was first 
observed and when colonization by female sea lions first took place. As 
discussed above, these two sites are among those which have been 
intensively and successfully protected from introduced terrestrial 
predators between 1984 and 2005 (Lalas et al. 2007, p. 237) so declines 
can be directly attributed to sea lion predation. The predation has 
been attributed to one female, the daughter of the founding animal. 
Population modeling of the effect of continued annual kills by sea 
lions predicts the collapse of small populations (fewer than 100 nests) 
subject to targeted predation by one individual sea lion. At the 
current time, none of the 14 breeding sites at Otago Peninsula exceed 
100 nests. No action has been taken to control this predation although 
removal of predatory individuals has been suggested (Lalas et al. 2007, 
pp. 235-246). Similar predation by New Zealand sea lions was observed 
at Campbell Island in 1988 and was considered a probable cause for 
local declines there (Moore and Moffat 1992, p. 68). Some authors have 
speculated that New Zealand sea lion may take yellow-eyed penguins at 
Stewart Island, but there are no documented reports (Darby 2003, p. 
152).
    Because of its continued role in suppressing the recovery of 
yellow-eyed penguin populations and because of the continued impact of 
introduced terrestrial and avian predators and native marine predators, 
we find that predation is a threat to the yellow-eyed penguin 
throughout all of its range.
    In summary, we find that disease and predation, which have impacted 
both mainland and island populations, are a threat to the yellow-eyed 
penguin throughout all of its range now and in the foreseeable future.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    All but seven seabird species in New Zealand, including the yellow-
eyed penguin, are protected under New Zealand's Wildlife Act of 1953, 
which gives absolute protection to wildlife throughout New Zealand and 
its surrounding marine economic zone. No one may kill or have in their 
possession

[[Page 77309]]

any living or dead protected wildlife unless they have appropriate 
authority.
    The species inhabits areas within Rakiura National Park, which 
encompasses Stewart and Codfish Island (Whenua Hou). Under section 4 of 
the National Parks Act of 1980 and Park bylaws, ``the native plants and 
animals of the parks shall as far as possible be preserved and the 
introduced plants and animals shall as far as possible be eradicated.'' 
In addition to national protection, all New Zealand sub-Antarctic 
islands, including Auckland and Campbell Islands, are inscribed on the 
World Heritage List (2008, p.16). We do not have information to 
evaluate whether and to what extent these National Park bylaws reduce 
threats to the yellow-eyed penguin in these areas.
    The yellow-eyed penguin is considered a `threatened' species and 
measures for its protection are outlined under the Action Plan for 
Seabird Conservation in New Zealand of the New Zealand DOC (Taylor 
2000, pp. 93-94) (see discussion of Factor D for Fiordland crested 
penguin). Ellis et al. (1998, p. 91) reported that habitat has been 
purchased or reserved for penguins at the mainland Otago Peninsula, 
North Otago and Catlins sites, with 20 mainland breeding locations (out 
of an estimated 32 to 42 sites) reported to be under ``statutory 
protection'' against further habitat loss. We have not found a complete 
breakdown of the types of legal protection in place for these areas, of 
the percent of the total mainland population encompassed under such 
areas, or of the effectiveness, where they are in place, of such 
regulatory mechanisms in reducing the identified threats to the yellow-
eyed penguin.
    As a consequence of its threatened designation, a Hoiho Recovery 
Plan 2000-2025 has been developed. This plan builds on the first 1985-
1997 phase of Hoiho Recovery efforts (McKinlay 2001, pp. 12-13). This 
plan lays out future objectives and actions to meet the long-term goal 
of increasing yellow-eyed penguin populations and achieving active 
community engagement in their conservation (McKinlay 2001, pp. 1-24). 
The Recovery Plan outlines proposed measures to address chronic factors 
historically affecting individual colonies, such as destruction or 
damage to colonies due to fire, livestock grazing and other manmade 
disturbance, predation by introduced predators, disease, and the impact 
of human disturbance (especially through tourism activities) (McKinlay 
2001, pp. 15-22). Another objective of the plan is to providing 
enduring legal guarantees of protections for breeding habitat through 
reservation or covenant (McKinlay 2001, p. 12). Best available 
information does not allow us to evaluate in detail the progress in 
meeting the eight objectives of the 2000-2025 recovery plan; although, 
as discussed elsewhere, the population recovery goals of the original 
earlier plan continue to be hard to reach for all but the Auckland 
Islands, and the development of anti-predator measures is an ongoing 
challenge. We are aware, as discussed in analysis of other threat 
factors that concerted public and private efforts on these objectives 
continue. However, in the absence of concrete information on 
implementation of the plan and reports on its efficacy, we did not rely 
on future measures proposed in the Hoiho Recovery Plan in our threat 
factor analysis.
    New Zealand has in place The New Zealand Marine Oil Spill Response 
Strategy, which provides the overall framework to mount a response to 
marine oil spills that occur within New Zealand's area of 
responsibility. The aim of the strategy is to minimize the effects of 
oil on the environment and people's safety and health. The National Oil 
Spill Contingency Plan promotes a planned and nationally coordinated 
response to any marine oil spill that is beyond the capability of a 
local regional council or outside the region of any local council 
(Maritime New Zealand 2007, p. 1). As discussed below under Factor E, 
rapid containment of spills in remote areas and effective triage 
response under this plan has shown these to be effective regulatory 
mechanisms (New Zealand Wildlife Health Center 2007, p. 2; Taylor 2000, 
p. 94).
    Following a review of the best available information, which 
indicates that despite the existence of general, or in some cases 
specific, protective or regulatory measures to address the threats to 
the yellow-eyed penguin, predation pressure, fisheries bycatch, local 
marine habitat modification through oyster dredging, and disease 
continue as threats to the yellow-eyed penguin, we find that inadequacy 
of regulatory mechanisms is a threat to the yellow-eyed penguin 
throughout all of its range.

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

    The Action Plan for Seabird Conservation in New Zealand (Taylor 
2000, p. 94) reported that there is no evidence that commercial or 
recreational fishing is impacting prey availability for the yellow-eyed 
penguin. Under Factor A, we have concluded that habitat modification by 
commercial oyster dredging is a threat to local yellow-eyed penguin 
colonies at Stewart Island, but we have not found evidence of direct 
competition for prey between yellow-eyed penguins and human fisheries 
activities. While following penguins from mainland colonies fitted with 
Global Positioning System (GPS) dive loggers, Mattern et al. (2005, p. 
270) noted that foraging tracks of adult penguins were remarkably 
straight. They hypothesized that individuals were following dredge 
marks from bottom trawls, but there is not information to indicate that 
fishery interaction has any impact on the penguins. Therefore, we find 
that competition with fisheries is not a threat to this species in any 
portion of its range.
    New Zealand's National Plan of Action to Reduce the Incidental 
Catch of Seabirds in New Zealand Fisheries, prepared by the Ministry of 
Fisheries and New Zealand DOC (MOF and DOC 2004, p. 57), listed yellow-
eyed penguins as being incidentally caught in inshore set fishing nets 
(set nets). A study of bycatch of yellow-eyed penguins along the 
southeast coast of South Island of New Zealand from 1979-1997 
identified gill-net entanglement as a significant threat to the species 
(Darby and Dawson 2000, p. 327). Mortality was highest in areas 
adjacent to the Otago Peninsula breeding grounds, with about 55 of 72 
gill-netted penguins found in this area (Darby and Dawson 2000, p. 
329). An analysis of 185 carcasses collected between 1975 and 1997 
found that 42 (23 percent) showed features consistent with mortality 
from gill-net entanglement. In that period, a further 30 entanglements 
were reported to officials (Darby and Dawson 2000, p. 327). While these 
numbers may appear small for the timeframe under study, the authors 
consider them to be underestimates of actual bycatch mortality (Darby 
and Dawson 2000, p. 331) and, given the small sizes of local yellow-
eyed penguin concentrations, significant to the maintenance of breeding 
colonies and the survival of adults in the population. Most 
entanglements reported by Darby and Dawson (2000, p. 331) are from a 
small geographic area at or near the Otago Peninsula, near the small 
concentrations of yellow-eyed penguins (in 1996 for example, there were 
approximately 350 breeding pairs of yellow-eyed penguin on the Otago 
Peninsula). Given these small numbers, the authors report that bycatch 
may be severe at a local scale; one small colony inside the entrance to

[[Page 77310]]

Otago harbor suffered 7 bycatch mortalities and was subsequently 
abandoned. The death of 32 birds along the north Otago coast over the 
period of the study is significant in light of the reported breeding 
population of only 39 pairs in this region, and, at Banks Peninsula, 7 
reported mortalities occurred where there were only 8-10 breeding pairs 
(Darby and Dawson 2000, p. 331).
    In response to bycatch of various species, set net bans have been 
implemented in the vicinity of the Banks Peninsula, which has been 
designated as a marine reserve. The 4-month set net ban is primarily 
designed to reduce entanglements of Hector's dolphin (Cephalorhynchus 
hectori), as well as yellow-eyed penguins and white-flippered penguins 
(NZ DOC 2007, p. 1). Early reports were that this ban had been widely 
disregarded (Taylor 2000, p. 70), and based on the best available 
information we are unable conclude that these measures at the Banks 
Peninsula have been effective in reducing bycatch of yellow-eyed 
penguins. In fact, the Hoiho Recovery Plan states that bycatch is 
likely the largest source of mortality at sea and outlines the need for 
research and liaison with fisheries managers to inform implementation 
of further measures to reduce the impact of fishing operations on 
yellow-eyed penguins (McKinlay 2001, p. 19). We do not have information 
on whether these proposed measures have been implemented. Therefore, 
for purposes of this analysis, we did not rely on these proposed 
measures to evaluate incidental take from gill-net entanglement.
    With respect to the potential for bycatch from long-line fisheries, 
which impact a number of other New Zealand seabird species, the Action 
Plan for Seabird Conservation indicates it is unlikely that yellow-eyed 
penguins will be caught in long-lines and the National Plan of Action 
to Reduce the Incidental Catch of Seabirds in New Zealand Fisheries 
does not identify this as a threat to this species (MOF and DOC 2004, 
p. 57).
    Based on the significant gill-net bycatch mortality of yellow-eyed 
penguins along the southeast coast of the South Island of New Zealand, 
which has the potential to impact over a quarter of the population, we 
find that fisheries bycatch is a threat to the mainland populations of 
the yellow-eyed penguin, but is not a threat in any other portion of 
its range.
    We have examined the possibility that oil and chemical spills may 
impact yellow-eyed penguins. Such spills, should they occur and not be 
effectively managed, can have direct effects on marine seabirds such as 
the yellow-eyed penguin. In the range of the yellow-eyed penguin, the 
sub-Antarctic Campbell and Auckland Islands are remote from shipping 
activity and the consequent risk of oil or chemical spills is low. The 
Stewart Islands populations at the southern end of New Zealand and the 
southeast mainland coast populations are in closer proximity to vessel 
traffic and human industrial activities which may increase the 
possibility of oil or chemical spill impacts. Much of the range of the 
yellow-eyed penguin on mainland New Zealand lies near Dunedin, a South 
Island port city, and a few individuals breed at Banks Peninsula just 
to the south of Christchurch, another major South Island port. While 
yellow-eyed penguins do not breed in large colonies, their locally 
distributed breeding groups are found in a few critical areas of the 
coast of the South Island and its offshore islands. A spill event near 
the mainland South Island city of Dunedin and the adjacent Otago 
Peninsula could have a major impact on the 14 breeding sites documented 
there. Non-breeding season distribution along the same coastlines 
provides the potential for significant numbers of birds to encounter 
spills at that time as well. Two spills have been recorded in this 
overall region. In March 2000, the fishing vessel Seafresh 1 sank in 
Hanson Bay on the east coast of Chatham Island and released 66 T (60 t) 
of diesel fuel. Rapid containment of the oil at this remote location 
prevented any wildlife casualties (New Zealand Wildlife Health Center 
2007, p. 2). The same source reported that in 1998 the fishing vessel 
Don Wong 529 ran aground at Breaksea Islets off Stewart Island. 
Approximately 331 T (300 t) of marine diesel was spilled along with 
smaller amounts of lubricating and waste oils. With favorable weather 
conditions and establishment of triage response, no casualties of the 
pollution event were discovered (Taylor 2000, p. 94). There is no doubt 
that an oil spill near a breeding colony could have a major effect on 
this species (Taylor 2000, p. 94). However, based on the wide 
distribution of yellow-eyed penguins around the mainland South Island, 
offshore, and sub-Antarctic islands, the low number of previous 
incidents around New Zealand, and the fact that each was effectively 
contained under the New Zealand Marine Oil Spill Response Strategy and 
resulted in no mortality or evidence of impacts on the population, we 
find that oil and chemical spills are not a threat to the yellow-eyed 
penguin in any portion of its range.
    In summary, we find that fisheries bycatch is a threat to mainland 
populations of the yellow-eyed penguin in the foreseeable future, but 
is not a threat in any other portion of the range of the species.

Foreseeable Future

    The term ``threatened species'' means any species (or subspecies 
or, for vertebrates, distinct population segments) that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act does not define the 
term ``foreseeable future.'' For the purpose of this proposed rule, we 
defined the ``foreseeable future'' to be the extent to which, given the 
amount and substance of available data, we can anticipate events or 
effects, or reliably extrapolate threat trends, such that we reasonably 
believe that reliable predictions can be made concerning the future as 
it relates to the status of the species at issue.
    In considering the foreseeable future as it relates to the status 
of the yellow-eyed penguin, we considered the threats acting on the 
yellow-eyed penguin, as well as population trends. We considered the 
historical data to identify any relevant existing trends that might 
allow for reliable prediction of the future (in the form of 
extrapolating the trends).
    With respect to the yellow-eyed penguin, the available data 
indicate that historical declines, which were the result of habitat 
loss and predation, continue in the face of the current threats of 
predation from introduced predators, disease, and the inadequacy of 
regulatory mechanisms throughout the species' range. New or recurrent 
disease outbreaks are reasonably likely to occur in the future that may 
result in further declines throughout the species' range. There is no 
information to suggest that the current effects of predation by 
introduced predators will be reduced in the foreseeable future, nor 
that regulatory mechanisms will become sufficient to address or 
ameliorate the threats to the species. Furthermore, the threat of 
predation by endemic sea lions is impacting populations on the mainland 
and at the Campbell Islands, and we have no reason to believe this 
threat will not continue to reduce population numbers of the yellow-
eyed penguin in that area. Bycatch in coastal gill-net fisheries is a 
threat to yellow-eyed penguins foraging from mainland breeding areas, 
despite efforts to regulate this activity; therefore we expect this 
threat to continue into the

[[Page 77311]]

foreseeable future. Based on our analysis of the best available 
information, we have no reason to believe that population trends will 
change in the future, nor that the effects of current threats acting on 
the species will be ameliorated in the foreseeable future.

Yellow-Eyed Penguin Finding

    Yellow-eyed penguin populations number approximately 1,602 breeding 
pairs. After severe declines from the 1940s, mainland yellow-eyed 
penguin populations have fluctuated at low numbers since the late 
1980s. The total mainland population of 450 breeding pairs (Houston 
2007, p. 3) is well below single-year levels recorded in 1985 and 1997 
(600 to 650 pairs) and well below historical estimates of abundance 
(Darby and Seddon 1990, p. 59). At Stewart Island and its adjacent 
islands, there are an estimated 178 breeding pairs. There are an 
estimated 404 pairs at Campbell Island where numbers have declined 
since 1997, and 570 pairs at the Auckland Islands.
    The primary documented factor affecting yellow-eyed penguin 
populations is predation by introduced and native predators within the 
species' breeding range. The impact of predators is inferred from the 
decline of this species during the period of introduced predator 
invasion and from documentation of continuing predator presence and 
predation. New Zealand laws and the bylaws of the national parks, which 
encompass some of the range of the yellow-eyed penguin, provide some 
protection for this species, as well as programs for eradication of 
nonnative invasive species. However, while complete eradication of 
predators in isolated island habitats may be possible, permanent 
removal of the introduced mammalian predators on the mainland has not 
been achieved, and the ongoing threat of predation remains. Both 
intensive trapping and physical protection of significant breeding 
groups through fencing have proven successful for yellow-eyed penguins 
at local scales, but existing efforts require ongoing commitment, and 
not all breeding areas have been protected. More recently, local-scale 
predation by New Zealand sea lions reestablishing a breeding presence 
at the mainland Otago Peninsula has become a threat to yellow-eyed 
penguin populations as this rare and endemic Otariid species recovers. 
This threat has also been documented for Campbell Island. The threat of 
predation by introduced species or recovering native species is a 
significant risk for yellow-eyed penguins.
    Disease is an ongoing factor negatively influencing yellow-eyed 
penguin populations. Disease has seriously impacted both mainland and 
Stewart Island colonies of yellow-eyed penguins in the last two 
decades. In mainland populations, avian malaria is thought to have led 
to mortality of 31 percent of the adult population on the mainland of 
New Zealand in the early 1990s and an outbreak of Cornybacterium 
infection cause high chick mortality in 2004-2005 and contributed to 
disease mortality at Stewart Island. Entire cohorts of penguin chicks 
at one breeding location at Stewart Island have been lost to the 
pathogen Leucocytozoon, especially at times when other diseases and 
other stress factors, such as food shortages, were present. Given the 
ongoing history of disease outbreaks at both island and mainland 
locations, it is highly likely that new or renewed disease outbreaks 
will impact this species in the foreseeable future with possible large-
scale mortality of adults and chicks and consequent breeding failures 
and population reductions. Emergence or recurrence of such outbreaks on 
the mainland, where there are currently 450 breeding pairs, or at 
island breeding areas could result in severe reductions for a species 
which totals only 1,602 breeding pairs range wide.
    The yellow-eyed penguin is also impacted by ongoing activities in 
the marine environment. Oyster dredging on the sea floor has been 
implicated in food shortages at penguin colonies at Stewart Island, 
which combined with disease, has led to years of 100 percent mortality 
of chicks at local breeding sites there. Bycatch in coastal gill-net 
fisheries is a threat to yellow-eyed penguins foraging from mainland 
breeding areas despite efforts to regulate this activity.
    We considered whether pollution from oil or chemicals is a threat 
to the yellow-eyed penguin. Documented oil spill events have occurred 
within the range of this species in the last decade, but there have 
been no documented direct or indirect impacts on this species. Such 
events are rare and New Zealand oil spill response and contingency 
plans have been shown to be in place, and effective, in previous 
events; therefore, we have not identified this as a threat to the 
yellow-eyed penguin.
    The yellow-eyed penguin has experienced consistent widespread 
declines in the past, and declines and low population numbers persist. 
This species has a relatively high reproductive rate (compared to other 
penguins) and substantial longevity. Despite these life history traits, 
which should provide the ability to rebound, and despite public and 
private efforts undertaken in New Zealand to address the threats to its 
survival, the species has not recovered. Historical declines resulting 
from habitat loss and predation continue in the face of the continued 
impact of predators, disease, and the inadequacy of regulatory 
mechanisms throughout its range. The threat of predation by endemic sea 
lions is impacting populations on the mainland and at the Campbell 
Islands. New or recurrent disease outbreaks are likely to cause further 
declines throughout the range in the foreseeable future. Just offshore 
of the southern tip of the South Island, local breeding groups at 
Stewart Island have been impacted by disease in concert with food 
shortages brought on by alteration of their marine habitat. At the 
Auckland Islands, the population has remained stable, but exists at low 
numbers and, like all yellow-eyed penguin populations, is susceptible 
to the emergence of disease and impacts of predation. Because of the 
species' low population size (1,602 breeding pairs), its continued 
decline in 3 out of 4 areas, and the threats of predation by introduced 
and native species, disease, and fisheries, we find that the yellow-
eyed penguin is likely to become in danger of extinction within the 
foreseeable future throughout all of its range.

Significant Portion of the Range Analysis

    Having determined that the yellow-eyed penguin is likely to become 
in danger of extinction within the foreseeable future throughout all of 
its range, we also considered whether there are any significant 
portions of its range where the species is currently in danger of 
extinction.
    The Act defines an endangered species as one ``in danger of 
extinction throughout all or a significant portion of its range,'' and 
a threatened species as one ``likely to become an endangered species 
within the foreseeable future throughout all or a significant portion 
of its range.'' The term ``significant portion of its range'' is not 
defined by statute. For purposes of this finding, a significant portion 
of a species' range is an area that is important to the conservation of 
the species because it contributes meaningfully to the representation, 
resiliency, or redundancy of the species. The contribution must be at a 
level such that its loss would result in a decrease in the ability to 
conserve the species.

[[Page 77312]]

    The first step in determining whether a species is endangered in a 
significant portion of its range is to identify any portions of the 
range of the species that warrant further consideration. The range of a 
species can theoretically be divided into portions in an infinite 
number of ways. However, there is no purpose to analyzing portions of 
the range that are not reasonably likely to be significant and where 
the species is not in danger of extinction. To identify those portions 
that warrant further consideration, we determine whether there is 
substantial information indicating that (i) the portions may be 
significant and (ii) the species may be in danger of extinction there. 
In practice, a key part of this analysis is whether the threats are 
geographically concentrated in some way. If the threats to the species 
are essentially uniform throughout its range, no portion is likely to 
warrant further consideration. Moreover, if any concentration of 
threats applies only to portions of the range that are unimportant to 
the conservation of the species, such portions will not warrant further 
consideration.
    If we identify any portions that warrant further consideration, we 
then determine whether in fact the species is threatened or endangered 
in any significant portion of its range. Depending on the biology of 
the species, its range, and the threats it faces, it may be more 
efficient for the Service to address the significance question first, 
or the status question first. Thus, if the Service determines that a 
portion of the range is not significant, the Service need not determine 
whether the species is threatened or endangered there. If the Service 
determines that the species is not threatened or endangered in a 
portion of its range, the Service need not determine if that portion is 
significant. If the Service determines that both a portion of the range 
of a species is significant and the species is threatened or endangered 
there, the Service will specify that portion of the range where the 
species is in danger of extinction pursuant to section 4(c)(1) of the 
Act.
    The terms ``resiliency,'' ``redundancy,'' and ``representation'' 
are intended to be indicators of the conservation value of portions of 
the range. Resiliency of a species allows the species to recover from 
periodic disturbance. A species will likely be more resilient if large 
populations exist in high-quality habitat that is distributed 
throughout the range of the species in such a way as to capture the 
environmental variability found within the range of the species. In 
addition, the portion may contribute to resiliency for other reasons--
for instance, it may contain an important concentration of certain 
types of habitat that are necessary for the species to carry out its 
life-history functions, such as breeding, feeding, migration, 
dispersal, or wintering. Redundancy of populations may be needed to 
provide a margin of safety for the species to withstand catastrophic 
events. This does not mean that any portion that provides redundancy is 
a significant portion of the range of a species. The idea is to 
conserve enough areas of the range such that random perturbations in 
the system act on only a few populations. Therefore, each area must be 
examined based on whether that area provides an increment of redundancy 
is important to the conservation of the species. Adequate 
representation ensures that the species' adaptive capabilities are 
conserved. Specifically, the portion should be evaluated to see how it 
contributes to the genetic diversity of the species. The loss of 
genetically based diversity may substantially reduce the ability of the 
species to respond and adapt to future environmental changes. A 
peripheral population may contribute meaningfully to representation if 
there is evidence that it provides genetic diversity due to its 
location on the margin of the species' habitat requirements.
    To determine whether any portion of the range of the yellow-eyed 
penguin warrants further consideration as possibly endangered, we 
reviewed the entire supporting record for this proposed listing 
determination with respect to the geographic concentration of threats 
and the significance of portions of the range to the conservation of 
the species. As previously mentioned, we evaluated whether substantial 
information indicated that (i) the portions may be significant and (ii) 
the species in that portion may be currently in danger of extinction. 
We have found that the occurrence of certain threats is uneven across 
the range of the yellow-eyed penguin. On this basis, we determined that 
some portions of the yellow-eyed penguin's range might warrant further 
consideration as possible endangered significant portions of the range.
    The yellow-eyed penguin range can be divided into four discrete 
areas. The first area consists of mainland colonies distributed along 
the southeast coast of the South Island of New Zealand. This mainland 
area is separated from three island based concentrations to the south. 
Just to the south is the Stewart Island/Codfish Island group which lies 
18.75 mi (30 km) from the mainland South Island across the Fouveaux 
Strait. Stewart Island is a large island of 1,091 square mi (1,746 
square km), and Codfish Island is a small island 8.75 square mi (14 
square km) located within 6.25 mi (10 km) west of Stewart Island. The 
third and fourth discrete areas of yellow-eyed penguin habitat are the 
sub-Antarctic Auckland Islands and Campbell Island, which lie 300 mi 
(480 km) and 380 mi (608 km), respectively, to the south of the 
southern tip of the South Island. These are clearly isolated from each 
other and from other portions of the yellow-eyed penguin range.
    To determine which areas may warrant further consideration, we 
evaluated these four areas of the entire range of the yellow-eyed 
penguin. Under the five-factor analysis, we determined that predation, 
disease, and inadequacy of regulatory mechanisms are threats to the 
yellow-eyed penguin throughout all of its range. In addition, we 
determined that fisheries bycatch and marine habitat modification from 
oyster dredging are threats to the species in only some portions of its 
range.
    Bycatch has been identified as a threat only for mainland 
populations. Marine habitat modification through oyster dredging has 
been identified as a unique threat at Stewart Island/Codfish Island. 
Therefore, we have determined that there is substantial information 
that yellow-eyed penguins on the mainland and at the Stewart/Codfish 
Islands may face a greater level of threat than populations at the 
Auckland and Campbell Islands. In addition, the mainland populations of 
450 pairs represent more than a quarter of the overall reported 
population of 1,602 pairs, indicating that this may be a significant 
portion of the range. Having met these two initial tests, a further 
evaluation was deemed necessary to determine if this portion of the 
range is both significant and endangered. The Stewart Island/Codfish 
Island population represents only 11 percent of the overall population 
of yellow-eyed penguins and is small in terms of geographical area. 
Given the proximity of this small population to the more numerous 
mainland portion of the range, with a contiguous distribution to 
colonies at the southern tip of the South Island, we do not find that 
this portion of the range is significant relative to the conservation 
of this species. We determined that the Auckland Islands and Campbell 
Islands portions of the range do not satisfy the two initial tests, 
because there is not substantial information to suggest that the 
species in those portions may currently be in danger of extinction.
    Having identified one portion of the range which warrants further 
consideration--the mainland portion--

[[Page 77313]]

we then proceeded to determine whether this portion is both significant 
and endangered.
    There have been large fluctuations in the mainland population of 
yellow-eyed penguins since at least 1980, with cyclical periods of 
population decline, followed by some recovery. As described in our 
threat factor analysis, these larger fluctuations have been tied to 
changes in the marine environment and the quality of food, as well as 
to periodic outbreaks of disease. The species is described as 
inherently robust, but recovery from these fluctuations is hampered by 
chronic predation threats as well as by the ongoing impact of fisheries 
bycatch. The combination of these cyclical and chronic factors has kept 
the mainland population fluctuating within the range of a few hundred 
to about 600 pairs over the last 3 decades. We have no evidence that 
the single factor of fisheries bycatch is driving the species toward 
extinction. Because the current population trend for the mainland 
populations is one of decline and fluctuation around low numbers, 
rather than precipitous decline, and because reproduction and 
recruitment are still occurring, we have determined the population is 
not currently in danger of extinction, but is likely to become so 
within the foreseeable future.
    As a result, while the best scientific and commercial data 
available allows us to make a determination as to the rangewide status 
of the yellow-eyed penguin, we have determined that there are no 
significant portions of the range in which the species is currently in 
danger of extinction. Because we find that the yellow-eyed penguin is 
not endangered in the portions of the range that we previously 
determined to warrant further consideration (mainland populations), we 
need not address the question of significance for this portion.
    Therefore, we propose to list the yellow-eyed penguin as threatened 
throughout all of its range under the Act.

White-Flippered Penguin (Eudyptula minor albosignata)

Background

    The white-flippered penguin breeds on Motunau Island and the Banks 
Peninsula of the South Island of New Zealand. Birds disperse locally 
around the eastern South Island. Breeding adults appear to remain close 
to nesting colonies in the non-breeding season (Taylor 2000, p. 69; 
Challies and Burleigh 2004, p. 5; Brager and Stanley 1999, p. 370). 
White-flippered penguins feed on small shoaling fish such as pilchards 
(Sardinops neopilchardus) and anchovies (Engraulis australis) (Brager 
and Stanley 1999, p. 370).
    The petitioner considers the white-flippered penguin to be a 
separate species (Eudyptula albosignata) on the basis of a 2006 paper 
by Baker et al. However, this paper (Baker et al. 2006, pp. 13-16) does 
not treat the specific question of the species or subspecies status of 
the group of Eudyptula penguins (little penguins). Among those 
researchers who have considered the phylogeny of the little penguin 
group in detail, Banks et al. (2002, p. 35), supported by Peucker et 
al. (2007, p. 126), make a strong case that the white-flippered penguin 
is part of one of two distinct lineages, or clades, of Eudyptula 
species (the Australian-Otago clade and the New Zealand clade, which 
includes the white-flippered penguin), each descended from one common 
ancestor.
    Limited evidence for subspeciation within the New Zealand clade is 
found in some genetic differences, but the taxonomic status of these 
Banks Peninsula birds remains somewhat unclear (Peucker et al. 2007, p. 
126). The New Zealand DOC considers the white-flippered penguin, with 
its distinct life history and morphological traits, as the southern end 
of a clinal variation of the little penguin (Houston 2007, p. 3). 
Consistent with the findings of Banks et al. (2002, p. 35), the New 
Zealand DOC recognizes the white-flippered penguin as an endemic sub-
species in its Action Plan for Seabird Conservation in New Zealand 
(Taylor 2000, p. 69). We recognize the findings of Banks et al. (2002, 
p. 35), and the determination of the New Zealand Department of 
Conservation, and consider the white-flippered penguin (Eudyptula minor 
albosignata) as one of six recognized subspecies of the little penguin 
(Eudyptula minor).
    The overall population of little penguins, which are found around 
Australia and New Zealand, numbers 350,000 to 600,000 birds. The total 
breeding population of the white-flippered subspecies, which is only 
found in New Zealand, is about 10,460 birds (Challies and Burleigh 
2004, p. 1).
    It is estimated that the Peninsula-wide population comprised tens 
of thousands of pairs at the time of European settlement. White-
flippered penguins were ``very common'' on the Banks Peninsula in the 
late 1800s (Challies and Burleigh 2004, p. 4). Distribution of colonies 
was more widespread on the shores of the Banks Peninsula during the 
1950s, with penguins nesting from the seaward headlands around to the 
inshore heads of bays.
    At Motunau Island there are an estimated 1,650 breeding pairs or 
about 4,590 birds (Ellis et al. 1998, p. 87). This population is 
reported to have increased slightly since the 1960s (Taylor 2000, p. 
69). On Banks Peninsula, exhaustive counts of all colonies in 2000-01 
and 2001-02 found 68 colonies with a total of 2,112 nests or about 
5,870 birds (Challies and Burleigh 2004, p. 5). This detailed survey 
increased the previously reported minimum estimates of 550 pairs 
published in 1998 (Ellis et al. 1998, p. 87), which were derived from 
partial surveys of only easily accessible colonies (Challies and 
Burleigh 2004, p. 1). While baseline information is lacking, Challies 
and Burleigh (2004, p. 5) have estimated that the present population is 
less than 10 percent of an estimated tens of thousands of pairs 
occupying the Peninsula prior to European settlement. Detailed 
monitoring of four individual colonies indicated that severe declines 
continue, with an overall loss of 83 percent of 489 nests monitored 
over the period from 1981-2000 (Challies and Burleigh 2004, p. 4).
    The little penguin is listed as a species of `Least Concern' in the 
IUCN Red List (BirdLife International 2007, p. 1), there is no separate 
status for the white-flippered subspecies. On New Zealand's Threat 
Classification system list, the white-flippered subspecies is listed as 
`acutely threatened--nationally vulnerable,' indicating small to 
moderate population and moderate recent or predicted decline 
(Hitchmough et al. 2007, p. 45; Molloy et al. 2002, p. 20). This 
species was addressed in the Action Plan for Seabird Conservation in 
New Zealand, and it was ranked as Category B (second priority) on the 
Molloy and Davis threat categories employed by the New Zealand DOC 
(Taylor 2000, p. 33).

Summary of Factors Affecting the White-Flippered Penguin

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of White-flippered Penguin's Habitat or Range

    The terrestrial breeding habitat of the white-flippered penguin 
comprises the shores of the Banks Peninsula south of Christchurch, New 
Zealand, and of Motunau Island about 62 mi (100 km) north. Banks 
Peninsula has a convoluted coastline of approximately 186 mi (300 km), 
made up of outer coast and deep embayments (Challies and Burleigh 2004, 
p. 1). Motunau is a small island of less than 0.3 mi (0.5 km) in 
length. While cattle or sheep sometimes trample nests at Banks 
Peninsula, white-

[[Page 77314]]

flippered penguin nest sites are usually in rocky areas or among tree 
roots where they are inaccessible to such damage (Taylor 2000, p. 69). 
Fire has also been identified as a factor which could threaten white-
flippered penguin habitat, but we are not aware of documented fire 
incidents (Taylor 2000, p. 69).
    On the basis of this information, we find that the present or 
threatened destruction, modification, or curtailment of its habitat or 
range is not a threat to the white-flippered penguin in any portion of 
its range.

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

    White-flippered penguins are the object of privately managed local 
tourism activities at the Banks Peninsula (Taylor 2000, p. 70). Neither 
the New Zealand Action Plan for Seabird Conservation nor the IUCN 
Conservation Assessment and Management Plan provides any evidence that 
tourism is a factor affecting white-flippered penguin populations 
(Taylor 2000, p. 69; Ellis et al. 1998, p. 87). There is no evidence of 
use of the species for other commercial, recreational, scientific or 
educational purposes.
    On the basis of this information, we find that overutilization for 
commercial, recreational, scientific, or educational purposes is not a 
threat to the white-flippered penguin in any portion of its range.

Factor C. Disease or Predation

    There is no evidence of disease as a threat to the white-flippered 
penguin.
    The most significant factor impacting white-flippered penguins is 
predation at Banks Peninsula by introduced mammalian predators. 
Ferrets, stoats, and feral cats take eggs and chicks and sometimes kill 
adult white-flippered penguins (Challies and Burleigh 2004, p.1). 
Populations are reported to have declined drastically since 1980 due to 
predation (Williamson and Wilson 2001, pp. 434-435). Dogs have also 
been cited as a potential predator (Taylor 2000, p. 69). In the past 25 
years, predators have overrun colonies at the accessible heads and 
sides of bays at Banks Peninsula, reducing colony distribution to less 
accessible and more remote headlands and outer coasts (Challies and 
Burleigh 2004, p. 4). Thirty-four colonies (fifty percent) surveyed in 
2000 to 2002, containing 1,345 nests (69 percent of the nests at Banks 
Peninsula), were considered to be vulnerable to predation. Seven of the 
12 largest colonies (each containing more than 20 nests) contained 
either the remains of penguins that had been preyed on or other 
evidence predators had been there (Challies and Burleigh 2004, p. 4). 
The five large colonies not considered vulnerable to predation were 
either protected by bluffs or, in one case, located on an island.
    The encroachment of predators destroyed the most accessible 
colonies first, in a progression from preferred habitat at the heads of 
bays towards the coast along a gradient of increasing coastal erosion. 
In the 1950s, penguins were still nesting around the heads of bays. 
These colonies disappeared soon thereafter (Challies and Burleigh 2004, 
p. 4). Of four colonies of greater than 50 nests on the sides of bays, 
one was destroyed between 1981 and 2000, and nest numbers in the other 
three colonies were reduced by 72 to 77 percent. In these four 
colonies, the total number of nests decreased 83 percent between 1981 
and 2000, from 489 nests down to 85 nests. The surviving colonies are 
almost all inside the bays close to the headlands or on the peripheral 
coast (Challies and Burleigh 2004, p. 4), with white-flippered penguins 
breeding primarily on rocky sites backed by bluffs. Challies and 
Burleigh (2004, p. 4) concluded, given the species' historical habitat 
and the difficulties of landing at these exposed breeding sites, that 
predation has forced white-flippered penguins into marginal, non-
preferred habitat.
    At the present time, colonies are largest either on inshore 
predator-free islands or in places on the mainland where predators are 
being controlled or which are less accessible to predators. The 
historic decline in penguin numbers is clearly continuing based on the 
current evidence of predation in existing recently surveyed colonies 
(Challies and Burleigh 2004, p. 5). In addition to documenting direct 
overland access to colonies, Challies and Burleigh (2004, p. 5) 
documented predation at colonies thought not to be accessible over 
land. For example, there is evidence that stoats, which are good 
swimmers, are reaching colonies at otherwise inaccessible parts of the 
shoreline, indicating that the spread of predation continues.
    The potential for dispersal and establishment of new colonies, 
which might allow for expansion of white-flippered penguin numbers, is 
also severely limited by predation. Fifty percent or more of adults 
attempt to nest away from their natal colony. Historically, such 
movements led to interchange between colonies and maintenance of colony 
size even as dispersal took place. With the presence of predators, this 
dispersal now leads breeding birds to settle in areas accessible to 
predators where they are eventually killed (Challies and Burleigh 2004, 
p. 5). One consequence of this pattern of dispersal and predation is 
that colonies suffer a net loss of breeding adults.
    Predator trapping started in 1981 and is carried out by a network 
of volunteers and private landowners around the Banks Peninsula. Some 
small predator-proof fences were erected to protect vulnerable colonies 
(Taylor 2000, p. 70; Williamson and Wilson 2001, p. 435). It is not 
clear how widespread such efforts are over the large geographical area 
of the Banks Peninsula or how successful they are. Williamson and 
Wilson (2001, p. 435) reported on two predator trapping programs at two 
relic colonies at the heads of Flea and Stony Bays. Their preliminary 
results indicated numbers were stable at Flea Bay, but Stony Bay 
populations of white-flippered penguins were in decline. Even though 
such trapping efforts began in 1981, Challies and Burleigh (2004, p. 5) 
concluded on the basis of data collected in the 2000-01 and 2001-02 
breeding seasons that the historic decline in white-flippered penguin 
numbers is continuing.
    At Motunau Island, the only other breeding area for this 
subspecies, there are no introduced predators. Rabbits, which could 
have impacted breeding habitat, were eradicated in 1963 (Taylor 2000, 
p. 70). The Action Plan for Seabird Conservation in New Zealand lists 
pest quarantine measures to prevent new animal and plant pest species 
reaching Motunau Island as a needed future management action (Taylor 
2000, p. 70), but we have no reports on whether such measures are now 
in place, and we cannot discount the current or future risk of predator 
introduction to Motunau Island.
    Predators are present at the larger Banks Peninsula colony (56 
percent of the nests for the species), but not currently at the smaller 
colony at Motunau Island (46 percent of the nests) although the risk of 
future predator introduction to Motunau Island exists. On the basis of 
information on the impact of predators, the failure of existing 
programs to eliminate them, and the possibility of dispersal of 
predators to current predator-free areas such as Motunau Island, we 
conclude that predation by introduced mammals is a threat to the white-
flippered penguin throughout all of its range currently and in the 
foreseeable future.

[[Page 77315]]

Factor D. Inadequacy of Existing Regulatory Mechanisms

    All but seven seabird species in New Zealand, including the white-
flippered penguin, are protected under New Zealand's Wildlife Act of 
1953, which gives absolute protection to wildlife throughout New 
Zealand and its surrounding marine economic zone. No one may kill or 
have in their possession any living or dead protected wildlife unless 
they have appropriate authority.
    The IUCN Conservation Assessment and Management Plan (CAMP) data 
sheet for white-flippered penguin (Ellis et al. 1998, p. 87) concluded 
in 1998 that the deteriorating status of this subspecies was not a high 
priority for the New Zealand DOC due to budgetary constraints. The CAMP 
noted that activities to date had not been government funded, but self-
funded by investigators or by grants from non-governmental 
organizations. Since then, the New Zealand DOC has adopted the Action 
Plan for Seabird Conservation, which includes recommendations on 
management of terrestrial threats to the white-flippered penguin as 
well as threats within the marine environment. We did not rely on these 
measures in our analysis because we do not have reports on which 
measures, if any, have been implemented and how they relate, in 
particular, to efforts to reduce the threat of predation on white-
flippered penguins at Banks Peninsula.
    The Banks Peninsula marine waters have special protective status as 
a marine sanctuary, which was established in 1988 and primarily 
directed at protection of the Hector's dolphin (Cephelorhynchus 
hectori) from bycatch in set nets. The 4-month set net ban, from 
November to the end of February, which also includes Motunau Island, is 
designed to reduce entanglements of these dolphins and to reduce the 
risk of entanglement of white-flippered penguins and yellow-eyed 
penguins (NZ DOC 2007, p. 1). Ten years ago, in the Action Plan for 
Seabird Conservation, this ban was reported to have been widely 
disregarded (Taylor 2000, p. 70). That Action Plan states that 
restriction on the use of set nets near key white-flippered penguin 
colonies may be necessary to protect the species and recommends an 
advocacy program to encourage set net users to adopt practices that 
will minimize seabird bycatch. We have information indicating that 
white-flippered penguins are frequently caught in set nets and no 
current information to indicate whether, or to what extent, set net 
restrictions have reduced take at either Banks Peninsula or Motunau 
Island.
    New Zealand has in place The New Zealand Marine Oil Spill Response 
Strategy, which provides the overall framework to mount a response to 
marine oil spills that occur within New Zealand's area of 
responsibility. The aim of the strategy is to minimize the effects of 
oil on the environment and people's safety and health. The National Oil 
Spill Contingency Plan promotes a planned and nationally coordinated 
response to any marine oil spill that is beyond the capability of a 
local regional council or outside the region of any local council 
(Maritime New Zealand 2007, p. 1). As discussed below under Factor E, 
rapid containment of spills in remote areas and effective triage 
response under this plan have shown these to be effective regulatory 
mechanisms (New Zealand Wildlife Health Center 2007, p. 2; Taylor 2000, 
p. 94). However, given the location of the only two major 
concentrations of white-flippered penguins near a major South Island 
port, we conclude under Factor E that oil spills are a threat to this 
species.
    On the basis of a review of available information and on the basis 
of the continued threats of predation, fisheries bycatch, and oil 
spills to this species, we find that inadequacy of existing regulatory 
mechanisms is a threat to the white-flippered penguin throughout all of 
its range now and in the foreseeable future.

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

    New Zealand's Action Plan notes that white-flippered penguins are 
frequently caught in nearshore set nets, especially around Motunau 
Island (Taylor 2000, p. 69). The number of birds caught is not known 
but there is a history of ``multiple net catches'' of penguins around 
Motunau Island (Ellis et al., 1998, p. 87). Restrictions on the use of 
set nets in the areas of Banks Peninsula and Motunau Island were 
instituted in 1988 (see discussion under Factor D above), but bans on 
leaving nets set inshore overnight were reported to be widely 
disregarded a decade ago (Ellis et al. 1998, p. 87). Such impacts 
interact with the more severe threat of predation at Banks Island, 
exacerbating declines there. Reports indicate bycatch impacts are most 
severe at Motunau Island, which is currently predator free. Based on 
the best available information we do not have a basis to conclude that 
rates of bycatch will decline in the foreseeable future, and we have 
found no current information to indicate that net restrictions have 
reduced take. Therefore, we find that bycatch of the white-flippered 
penguin by fishing activities is a threat to this species of penguin 
throughout all of its range.
    We have examined the possibility that oil and chemical spills may 
impact white-flippered penguins. Such spills, should they occur and not 
be effectively managed, can have direct effects on marine seabirds, 
such as the white-flippered penguin. The entire subspecies nests in 
areas of moderate shipping volume coming to Port Lyttelton at 
Christchurch, New Zealand. This port lies adjacent to, and just north 
of, the Banks Peninsula and just south of Motunau Island.
    On this basis, the Action Plan for Seabird Conservation in New 
Zealand specifically identifies a large oil spill as a key potential 
threat to this species (Taylor 2000, pp. 69-70) and recommends that 
penguin colonies be identified as sensitive areas in oil spill 
contingency plans (Taylor 2000, pp. 70-71).
    Two spills have been recorded in the overall region of the South 
island of New Zealand and its offshore islands. These spills did not 
impact the white-flippered penguin. In March 2000, the fishing vessel 
Seafresh 1 sank in Hanson Bay on the east coast of Chatham Island and 
released 66 T (60 t) of diesel fuel. Rapid containment of the oil at 
this remote location prevented any wildlife casualties (New Zealand 
Wildlife Health Center 2007, p. 2). The same source reported that in 
1998 the fishing vessel Don Wong 529 ran aground at Breaksea Islets, 
off Stewart Island. Approximately 331 T (300 t) of marine diesel was 
spilled along with smaller amounts of lubricating and waste oils. With 
favorable weather conditions and establishment of triage response, no 
casualties of the pollution event were discovered (Taylor 2000, p. 94).
    While New Zealand has a good record of oil spill response, an oil 
spill in the vicinity of one of the two breeding colonies of the white-
flippered penguin which lie closely adjacent to the industrial port of 
Port Lyttelton, could impact a large portion of the individuals of this 
subspecies if not immediately contained. Previous spills have been in 
more remote locations, with more leeway for longer-term response before 
oil impacted wildlife. Based on the occurrence of previous spills 
around New Zealand, the low overall numbers of white-flippered 
penguins, and the location of their only two breeding populations 
adjacent to Christchurch, a major South Island port, there is a high 
likelihood that oil spill events, should they occur in this area, will 
impact white-flippered penguins. Therefore, we find that oil spills are 
a threat to the

[[Page 77316]]

white-flippered penguin in the foreseeable future.
    We find that fisheries bycatch and the potential for oil spills are 
threats to the white-flippered penguin throughout all of its range now 
and in the foreseeable future.

Foreseeable Future

    The term ``threatened species'' means any species (or subspecies 
or, for vertebrates, distinct population segments) that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act does not define the 
term ``foreseeable future.'' For the purpose of this proposed rule, we 
define the ``foreseeable future'' to be the extent to which, given the 
amount and substance of available data, we can anticipate events or 
effects, or reliably extrapolate threat trends, such that we reasonably 
believe that reliable predictions can be made concerning the future as 
it relates to the status of the species at issue.
    In considering the foreseeable future as it relates to the status 
of the white-flippered penguin, we considered the threats acting on the 
subspecies, as well as population trends. We considered the historical 
data to identify any relevant existing trends that might allow for 
reliable prediction of the future (in the form of extrapolating the 
trends).
    With respect to the white-flippered penguin, the available data 
indicate that the historic decline in penguin numbers is clearly 
continuing based on the current evidence of predation by introduced 
species in existing recently surveyed colonies at Banks Island. Given 
that existing programs have failed to eliminate introduced predators 
and that these predators appear to be spreading, we believe their 
impact on the white-flippered penguin will continue in the future. 
There is no information to suggest that the current effects of bycatch 
will be reduced in the foreseeable future, nor that regulatory 
mechanisms will become sufficient to address or ameliorate this threat 
to the subspecies. Based on the occurrence of previous oil spills 
around New Zealand and the location of the only two breeding 
populations of white-flippered penguins adjacent to Christchurch, a 
major South Island port, we find that oil spills will likely occur in 
the future. Furthermore, because of the low overall numbers of white-
flippered penguins, there is a high likelihood that oil spill events, 
should they occur in this area, will impact white-flippered penguins. 
Based on our analysis of the best available information, we have no 
reason to believe that population trends will change in the future, nor 
that the effects of current threats acting on this subspecies will be 
ameliorated in the foreseeable future.

White-Flippered Penguin Finding

    Predation by introduced mammalian predators is the most significant 
factor threatening white-flippered penguin within the species' breeding 
range. Predation by introduced species has contributed to the 
historical decline of this subspecies since the late 1800s and is 
reducing numbers at the current time. In addition to reducing numbers 
in existing colonies, the presence of predators has been documented as 
a barrier to the dispersal of breeding birds and the establishment of 
new colonies, perhaps indicating larger declines are to be expected. 
New Zealand laws require protection of this native subspecies. Anti-
predator efforts have not stopped declines of white-flippered penguins 
at Banks Peninsula, although eradication of predators has been achieved 
at Motunau Island. Removal of introduced mammalian predators on the 
mainland Banks Peninsula is an extremely difficult, if not impossible, 
task. Trapping and physical protection of a few local breeding groups 
through fencing have proven locally successful but these efforts are 
not widespread. The Banks Peninsula with 186 mi (300 km) of coastline 
and 68 white-flippered penguin colonies, is a very large area to 
control and predation impacts will continue. The threat of reinvasion 
remains, both at Motunau Island and in areas of the Banks Peninsula 
where predator control has been implemented (Taylor 2000, p. 70; 
Challies and Burleigh 2004, p. 5). We find that predation is a threat 
to the white-flippered penguin throughout all of its range.
    The white-flippered penguin is also impacted by threats in the 
marine environment. While set-net bans have been in place since the 
1980s to reduce take of white-flippered penguins and other species, 
bycatch in coastal gill-net fisheries is known to result in mortality 
to white-flippered penguins foraging from breeding areas. Although we 
do not have quantitative data on the extent of bycatch, the best 
available information indicates that such impacts are an underlying 
threat which interacts with the more severe threat of predation at 
Banks Island and which especially impacts populations at Motunau 
Island. Based on the best available scientific and commercial 
information, we conclude that bycatch is a threat to the white-
flippered penguin throughout all of its range.
    Documented oil spills have occurred in the vicinity of the South 
Island of New Zealand in the last decade. While such events are rare, 
future events have the potential to impact white-flippered penguins. A 
spill event near the city of Christchurch and the adjacent Banks 
Peninsula, which was not immediately contained, would be very likely to 
impact either, or both, of the two breeding sites of the white-
flippered penguin in a very short time, affecting up to 65 percent of 
the population at one time. While New Zealand oil spill response and 
contingency plans have been shown to be effective in previous events, 
the location of the only two breeding areas of this subspecies near 
industrial areas and marine transport routes increase the likelihood 
that spill events will impact the white-flippered penguin.
    Major reductions in the numbers of nests in individual colonies and 
the loss of colonies indicate the population of white-flippered penguin 
at Banks Peninsula is declining as the threat of predation impacts this 
subspecies. The subspecies has a low population size (10,460 
individuals) with breeding populations concentrated solely in two 
highly localized breeding areas. Bycatch from fisheries activities is 
an ongoing threat to members of this subspecies breeding at both 
Motunau Island and the Banks Peninsula. For both breeding areas, which 
are close to an industrial port and shipping lanes, oil spills are a 
threat to the white-flippered penguin in the foreseeable future. Based 
on the best available scientific and commercial information, we find 
that the white-flippered penguin is likely to become in danger of 
extinction within the foreseeable future throughout all of its range.

Significant Portion of the Range Analysis

    Having determined that the white-flippered penguin is likely to 
become in danger of extinction within the foreseeable future throughout 
all of its range, we also considered whether there are any significant 
portions of its range where the species is currently in danger of 
extinction. See our analysis for the yellow-eyed penguin for how we 
make this determination.
    White-flippered penguins breed in two areas, one on the shores of 
the Banks Peninsula south of Christchurch New Zealand, the other at 
Motunau Island about 62 mi (100km) north. It appears that colonization 
of any possible intermediate breeding range is precluded by predation 
(Challies and Burleigh 2004, p. 5). The Banks Island colony is larger, 
with about 2,112

[[Page 77317]]

breeding pairs, and Motunau Island has about 1,635 breeding pairs. 
Threats in the marine environment, particularly fisheries bycatch have 
similar impact on the two areas and, given the proximity of each colony 
to the port of Christchurch, we conclude that oil spills are a threat 
in both areas. Predation by introduced predators is documented at Banks 
Peninsula, and introduction of predators is a potential future threat 
at Motunau Island, where population numbers are stable. This leads us 
to consider whether the Banks Peninsula portion of the range, where 
population declines are ongoing, may be in danger of extinction. While 
the threat of introduced predators is greater at the Banks Peninsula, a 
combination of local management protection of some colonies and the 
existence of inaccessible refugia from predators for some small 
colonies on the outer coast and offshore rocks and islands leads us to 
conclude that there is not substantial information to conclude the 
species in this portion of the range may currently be in danger of 
extinction. We determine that the Motunau Island and Banks Island 
portions of the range do not satisfy the two initial tests because 
there is not substantial information to conclude that the species in 
those portions may currently be in danger of extinction.
    As a result, while the best available scientific and commercial 
data allows us to make a determination as to the rangewide status of 
the white-flippered penguin, we have determined that there are no 
significant portions of the range in which the species is currently in 
danger of extinction.
    Therefore, we propose to list the white-flippered penguin as 
threatened throughout all of its range under the Act.

Fiordland Crested Penguin (Eudyptes pachyrhynchus)

Background

    The Fiordland crested penguin, also known by its Maori name, 
tawaki, is endemic to the South Island of New Zealand and adjacent 
offshore islands southwards from Bruce Bay. The species also nests on 
Solander Island (0.3 square miles (mi2) (0.7 square 
kilometers (km2))), Codfish Island (5 mi2 (14 
km2)), and islands off Stewart Island at the south end of 
the South Island (Taylor 2000, p. 58). Major portions of the range are 
in Fiordland National Park (4,825 mi2 (12,500 
km2)) and Rakiura National Park (63 mi2 (163 
km2)) on Stewart and adjacent islands. Historically, there 
are reports of breeding north to the Cook Straits and perhaps on the 
southernmost part of the North Island (Ellis et al. 1998, p. 69). The 
Fiordland crested penguin breeds in colonies situated in inaccessible, 
dense, temperate rainforest along shores and rocky coastlines, and 
sometimes in sandy bays. It feeds on fish, squid, octopus, and krill 
(BirdLife International 2007, p. 3).
    Outside the breeding season, the birds have been sighted around the 
North and South Islands and south to the sub-Antarctic islands, and the 
species is a regular vagrant to southeastern Australia (Simpson 2007, 
p. 2; Taylor 2000, p. 58). Houston (2007a, p. 2) of the New Zealand DOC 
comments that the appearance of vagrants in other locations is not 
necessarily indicative of the normal foraging range of Fiordland 
crested penguins; he also states that the non-breeding range of this 
species is unknown.
    A five-stage survey effort, conducted from 1990-1995, documented 
all the major nesting areas of Fiordland crested penguin throughout its 
known current range (McLean and Russ 1991, pp. 183-190; Russ et al. 
1992, pp. 113-118; McLean et al. 1993, pp. 85-94; Studholme et al. 
1994, pp. 133-143; McLean et al. 1997, pp. 37-47). In these studies 
researchers systematically surveyed the entire length of the range of 
this species, working their way along the coast on foot to identify and 
count individual nests, and conducting small boat surveys from a few 
meters offshore to identify areas to survey on foot. The coastline was 
also scanned from a support ship, to identify areas to survey (McLean 
et al. 1993, p. 87). A final count of nests for the species resulted in 
an estimate of between 2,500 and 3,000 nests annually (McLean et al. 
1997, p. 45) and a corresponding number of 2,500 to 3,000 breeding 
pairs. The staging of this survey effort reflects the dispersed 
distribution of small colonies of this species along the convoluted and 
inaccessible mainland and island coastlines of the southwest portion of 
the South Island of New Zealand.
    Long-term and current data on overall changes in abundance are 
lacking. The June 2007 Fiordland National Park Management Plan (New 
Zealand Department of Conservation (NZ DOC) 2007, p. 53) observed that 
Fiordland crested penguin numbers appear to be stable, and reported on 
the nesting success of breeding pairs at island (88 percent) versus 
mainland (50 percent) sites. The Management Plan raises uncertainty as 
to whether 50 percent nesting success will be sufficient to maintain 
the mainland population long term. Populations on Open Bay Island 
decreased by 33 percent between 1988 and 1995 (Ellis et al. 1998, p. 
70), and a long-term decline may have occurred on Solander Island 
(Cooper et al. 1986, p. 89). Historical data report thousands of 
individuals in locations where numbers in current colonies are 100 or 
fewer (Ellis et al. 1998, p. 69). The species account in the New 
Zealand Action Plan for Seabird Conservation states that ``the 
population status of the species throughout its breeding range is still 
unknown and will require long-term monitoring to assess changes'' 
(Taylor 2000, p. 58).
    The IUCN Red List (BirdLife International 2007, p. 1) classifies 
this species as `Vulnerable' because it has a small population assumed 
to have been undergoing a rapid reduction of at least 30 percent over 
the last 29 years. This classification is based on trend data from a 
few sites, for example at Open Bay Island there was a 33 percent 
decrease for the time period from 1988-1995. The Fiordland crested 
penguin is listed as Category B (second priority) on the Molloy and 
Davis threat categories employed by the New Zealand DOC (Taylor 2000, 
p. 33) and placed in the second tier in New Zealand's Action Plan for 
Seabird Conservation. The species is listed as `acutely threatened--
nationally endangered' on the New Zealand Threat Classification System 
list (Hitchmough et al. 20077, p. 38; Molloy et al. 2003, pp. 13-23). 
Under this classification system, which is non-regulatory, species 
experts assess the placement of species into threat categories 
according to both status criteria and threat criteria. Relevant to the 
Fiordland crested penguin evaluation are its low population size and 
reported declines of greater or equal to 60 percent in the total 
population in the last 100 years (Molloy et al. 2003, p. 20).

Summary of Factors Affecting the Fiordland Crested Penguin

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of the Fiordland Crested Penguin's Habitat or Range

    The Fiordland crested penguin has a patchy breeding distribution 
from Jackson Bay on the west coast of the South Island of New Zealand 
southward to the southwest tip of New Zealand and offshore islands, 
including Stewart Island. A major portion of this range is encompassed 
by the Fiordland National Park on the South Island and Rakiura National 
Park on Stewart and adjacent islands at the southern tip of New 
Zealand. The majority of the breeding range of the Fiordland crested 
penguin lies within national parks and is currently protected from 
destruction

[[Page 77318]]

and modification. The only reported instance of terrestrial habitat 
modification comes from the presence of deer (no species name provided) 
in some colonies that may trample nests or open up habitat for 
predators (Taylor 2000, p. 58).
    We find that the present destruction, modification, or curtailment 
of the terrestrial habitat or range of the Fiordland crested penguin is 
not a threat to the species in any portion of its range.
    The marine foraging range of the Fiordland crested penguin is 
poorly documented. Recent observations on the foraging behavior of the 
species around Stewart and Codfish Islands found birds foraging very 
close to shore and in shallow water (Houston 2007a, p. 2), indicating 
the species may not be a pelagic feeder. The species is a vagrant to 
more northerly areas of New Zealand and to southeastern Australia, but 
that is not considered indicative of its normal foraging range (Houston 
2007a, p. 2).
    ``Prey shortage due to sea temperature change'' while foraging at 
sea has been cited as a threat (Ellis et al. 2007, p. 6) and changes in 
prey distribution as a result of slight warming of sea temperatures 
have been implicated for declines of southern rockhopper penguins at 
Campbell Island and mentioned as a possible threat for Fiordland 
crested penguins (Taylor 2000, p. 59). However, the Action Plan for 
Seabird Conservation in New Zealand concluded that the effects of 
oceanic changes or marine perturbations such as El Ni[ntilde]o events 
on the Fiordland crested penguin are unknown (Taylor 2000, p. 59) and 
identified the need for future research on distribution and movements 
of this species in the marine environment (Taylor 2000, p. 61).
    Based on this analysis, we find that the present or future 
destruction, modification, or curtailment of the terrestrial and marine 
habitat or range is not a threat to the Fiordland crested penguin in 
any portion of its range.

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

    Human disturbance of colonies is rare because the birds generally 
nest in inaccessible sites. However, in some accessible areas, such as 
in the northern portion of the range at South Westland, large 
concentrations of nests occur in areas accessible to people and dogs. 
In addition, nature tourism may disturb breeding (McLean et al. 1997, 
p. 46; Taylor 2000, p. 58). The Action Plan for Seabird Conservation in 
New Zealand stated that guidelines are needed to control visitor access 
to mainland penguin colonies and accessible sites should be protected 
as Wildlife Refuges (Taylor 2000, p. 60). It is not clear, based on the 
information available whether such measures have been implemented. 
Similarly, research activities may disturb breeding birds. Houston 
(2007a, p. 1) reported that monitoring of breeding success at Jackson's 
Head has been abandoned due to concerns of adverse effects of the 
research on breeding success and recruitment. There is no evidence of 
use of the species for other commercial, recreational, scientific or 
educational purposes.
    Therefore, we find that the present overutilization for commercial, 
recreational, scientific, or educational purposes, particularly human 
disturbance, is a threat to the survival of the Fiordland crested 
penguin throughout all of its range now and in the foreseeable future.

Factor C. Disease or Predation

    Reports from 1976 documented that Fiordland crested penguin chicks 
have been infected by the sandfly-borne protozoan blood parasite 
(Leucocytozoon tawaki) (Taylor 2000, p. 59) (see discussion under 
Factor C for the yellow-eyed penguins). Diseases such as avian cholera, 
which has caused the deaths of southern rockhopper penguin adults and 
chicks at Campbell Islands, are inferred to be a potential problem in 
Fiordland crested penguin colonies (Taylor 2000, p. 59). However, with 
no significant disease outbreaks reported, the best available 
information leads us to conclude that disease is not a threat to this 
species.
    Predation from introduced mammals and birds is a threat to the 
Fiordland crested penguin (Taylor 2000, p. 58; Ellis et al. 1998, p. 
70). Comments received from the New Zealand DOC link historical 
declines of Fiordland crested penguins to the time of arrival of 
mammalian predators, particularly stoats, to the area (Houston 2007a, 
p. 1). Only Codfish Island, where 144 nests have been observed, is 
fully protected from introduced mammalian and avian predators 
(Studholme et al. 1994, p. 142). This island lies closely adjacent to 
Stewart Island so the future possibility of predator reintroduction 
cannot be discounted. Mustelids, especially stoats, are reported to 
take eggs and chicks in mainland colonies and may occasionally attack 
adult penguins (Taylor 2000, p. 58). The Norway rat, ship rat (Rattus 
rattus), and Pacific rat (Rattus exulans) may be predators, but there 
is no direct evidence of it. Feral cats and pigs are also potential 
predators, but they are not common in nesting areas. Recent 
observations since the development of the Action Plan (Taylor 2000, p. 
58), which originally discounted the impact of the introduced possum 
(Trichosurus vulpecula), indicate that this species has now colonized 
the mainland range of the Fiordland crested penguin in South Westland 
and Fiordland. Initially thought to be vegetarians, it is now 
documented that possums eat birds, eggs, and chicks and also compete 
for burrows with native species. It is not yet known if they compete 
for burrows or eat the eggs of Fiordland crested penguins, as they do 
other native species, but this is thought to be likely (Houston 2007b, 
p. 1). Domestic dogs are reported to kill adult penguins and disturb 
colonies near human habitation (Taylor 2000, p. 58).
    Weka, which are omnivorous, flightless rails about the size of 
chickens and native to other regions of New Zealand, have been widely 
introduced onto offshore islands of New Zealand. At Open Bay Islands 
and Solander Islands, this alien species has been observed to take 
Fiordland crested penguin eggs and chicks. At Open Bay Island colonies, 
weka caused 38 percent of egg mortality observed and 20 percent of 
chick mortality (St. Clair and St. Clair 1992, p. 61). The decline in 
numbers of Fiordland crested penguin on the Solander Islands from 
``plentiful'' to a few dozen since 1948 has also been attributed to egg 
predation by weka (Cooper et al. 1986, p. 89). Among the future 
management actions identified as needed in New Zealand's Action Plan 
for Seabird Conservation are weka eradication from Solander Island and 
addressing the problem of weka predation at Open Bay Islands (Taylor 
2000, p. 60).
    Predator control programs have been undertaken on only a few 
islands in a limited portion of the Fiordland crested penguin's range 
and are not practicable in the inaccessible mainland South Island 
strongholds of the species (Taylor 2000, p. 59).
    Predation by introduced mammalian species is the primary threat 
facing the Fiordland crested penguin on the mainland South Island of 
New Zealand. At breeding islands free of mammalian predators, e.g., 
Open Bay Islands and Solander Island, an introduced bird, the weka, is 
a predator on Fiordland penguin eggs and chicks. Only Codfish Island is 
fully protected from introduced mammalian and avian predators. 
Therefore, we find that predation by introduced species is not a threat 
to the Fiordland crested penguin on Codfish Island, but is a

[[Page 77319]]

threat to this species in other portions of its range now and in the 
foreseeable future.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    All but seven seabird species in New Zealand, including the 
Fiordland crested penguin, are protected under New Zealand's Wildlife 
Act of 1953, which gives absolute protection to wildlife throughout New 
Zealand and its surrounding marine economic zone. No one may kill or 
have in their possession any living or dead wildlife unless they have 
appropriate authority.
    The majority of the range of the Fiordland crested penguin is 
within the Fiordland National Park (which includes Solander Island) and 
adjacent parks, including Rakiura National Park. Fiordland National 
Park covers 15 percent of public conservation land in New Zealand. 
Under section 4 of the National Parks Act of 1980 and Park bylaws, 
``the native plants and animals of the parks shall as far as possible 
be preserved and the introduced plants and animals shall as far as 
possible be eradicated'' (NZ DOC 2007, p. 24). The June 2007 Fiordland 
National Park Management Plan (NZ DOC 2007, pp. 1-4) contains, in its 
section on Preservation of Indigenous Species and Habitats, a variety 
of objectives aimed at maintaining biodiversity by preventing the 
further loss of indigenous species from areas where they were 
previously known to exist. The Fiordland crested penguin is 
specifically referenced in the audit of biodiversity values to be 
preserved in the Park (NZ DOC 2007, p. 53). In addition, the Fiordland 
Marine Management Act of 2005 establishes the Fiordland Marine area and 
8 marine reserves within that area, which encompasses more than 2.18 
million ac (882,000 ha) extending from the northern boundary of the 
Park to the southern boundary (excluding Solander Island) (NZ DOC 2007, 
p. 29). The species also inhabits Rakiura National Park, which 
encompasses Stewart Island and Whenua Hou (Codfish Island) and also 
falls under the National Parks Act of 1980 and Park bylaws.
    The Fiordland National Park is encompassed in the Te Wahipounamu--
South West New Zealand World Heritage Area. World Heritage areas are 
designated under the World Heritage Convention because of their 
outstanding universal value (NZ DOC 2007, p. 44). Such designation does 
not confer additional protection beyond that provided by national laws.
    Despite these designations and the possibility of future efforts, 
we have no information to indicate that measures have been implemented 
that reduce the threats to the Fiordland crested penguin.
    The Fiordland crested penguin has been placed in the group of birds 
ranked as second tier threat status in New Zealand's Action Plan for 
Seabird Conservation on the basis of its being listed as `Vulnerable' 
by IUCN Red List Criteria and as Category B (second priority) on the 
Molloy and Davis threat categories employed by the New Zealand DOC 
(Taylor 2000, p. 33). The Action Plan, while not a legally binding 
document, outlines actions and priorities intended to define the future 
direction of seabird work in New Zealand. High-priority future 
management actions identified are eradication of weka from Big Solander 
Island and development of a management plan for the Open Bay Islands to 
address the problem of weka predation on Fiordland crested penguins and 
other species. We do not have information to allow us to evaluate 
whether any of these proposed actions and priorities have been carried 
out and, therefore, have not relied on this information in our threat 
analysis.
    New Zealand has in place The New Zealand Marine Oil Spill Response 
Strategy, which provides the overall framework to mount a response to 
marine oil spills that occur within New Zealand's area of 
responsibility. The aim of the strategy is to minimize the effects of 
oil on the environment and people's safety and health. The National Oil 
Spill Contingency Plan promotes a planned and nationally coordinated 
response to any marine oil spill that is beyond the capability of a 
local regional council or outside the region of any local council 
(Maritime New Zealand 2007, p. 1). As discussed below under Factor E, 
rapid containment of spills in remote areas and effective triage 
response under this plan has shown these to be effective regulatory 
mechanisms (New Zealand Wildlife Health Center 2007, p. 2; Taylor 2000, 
p. 94).
    Major portions of the coastal and marine habitat of the Fiordland 
crested penguin are protected under a series of laws, and the species 
itself is covered under the New Zealand Wildlife Act. The National 
Parks Act specifically calls for controlling and eradicating introduced 
species. While there has been limited success in controlling some 
predators of Fiordland crested penguins at isolated island habitats 
comprising small portions of the overall range, the comprehensive legal 
protection of this species has not surmounted the logistical and 
resource constraints which stand in the way of limiting or eradicating 
predators on larger islands and in inaccessible mainland South Island 
habitats. Furthermore, we are not able to evaluate whether efforts to 
reduce the threats of human disturbance discussed in Factor B have been 
implemented or achieved results.
    On the basis of this information, we find that inadequacy of 
existing regulatory mechanisms is a threat to the Fiordland crested 
penguin throughout all of its range now and in the foreseeable future.

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

    Commercial fishing in much of the species' range is a comparatively 
recent development and is considered unlikely to have played a 
significant role in historic declines (Houston 2007a, p. 1). New 
Zealand's Seabird Action Plan noted that Fiordland crested penguins 
could potentially be caught in set nets near breeding colonies and that 
trawl nets are also a potential risk. Competition with squid fisheries 
is also noted as a potential threat (Taylor 2000, p. 59; Ellis et al. 
1998, p. 70; Ellis et al. 2007, p. 7). The 1998 CAMP recommended 
research on foraging ecology to identify potential competition with 
commercial fisheries and effects of climatic variation (Ellis et al. 
1998, pp. 70-71), but we are not aware of the results of any such 
studies. The New Zealand DOC (Houston 2007a, p. 1), in its comments on 
this petition, noted that the ``assessment of threats overstates the 
threat from fisheries'' to the Fiordland crested penguin. The 
distribution and behavior of this species may reduce the potential 
impact of bycatch. The Fiordland crested penguin is distributed widely 
along the highly convoluted, sparsely populated, and legally protected 
South Island coastline for a linear distance of over 155 mi (250 km), 
as well as along the coasts of several offshore islands. Significant 
feeding concentrations of the species, which might be susceptible to 
bycatch, have not been described. Given the absence of documentation of 
actual impacts of fisheries bycatch on the Fiordland crested penguin, 
we conclude that this is a not threat to the species in any portion of 
its range.
    We have examined the possibility that oil and chemical spills may 
impact Fiordland crested penguins. Such spills, should they occur and 
not be effectively managed, can have direct effects on marine seabirds 
such as the Fiordland crested penguin. The range of the Fiordland 
crested penguin, on the southwest coast of the South Island of

[[Page 77320]]

New Zealand is remote from shipping activity and away from any major 
human population centers, and the consequent risk of oil or chemical 
spills is low. The Stewart Islands populations at the southern end of 
New Zealand are in closer proximity to vessel traffic and human 
industrial activities which may increase the possibility of oil or 
chemical spill impacts. Two spills have been recorded in this overall 
region. In March 2000, the fishing vessel Seafresh 1 sank in Hanson Bay 
on the east coast of Chatham Island and released 66 T (60 t) of diesel 
fuel. Rapid containment of the oil at this remote location prevented 
any wildlife casualties (New Zealand Wildlife Health Center 2007, p. 
2). The same source reports that in 1998 the fishing vessel Don Wong 
529 ran aground at Breaksea Islets off Stewart Island. Approximately 
331 T (300 t) of marine diesel was spilled along with smaller amounts 
of lubricating and waste oils. With favorable weather conditions and 
establishment of triage response, no casualties of the pollution event 
were discovered (Taylor 2000, p. 94). There is no doubt that an oil 
spill near a breeding colony could have a major effect on this species 
(Taylor 2000, p. 94). However, based on the remote distribution of 
Fiordland penguins around the mainland South Island, and offshore 
islands at the southern tip of the South Island, the low number of 
previous incidents around New Zealand, and the fact that each was 
effectively contained under the New Zealand Marine Oil Spill Response 
Strategy and resulted in no mortality or evidence of impacts on the 
population, we find that oil and chemical spills are not a threat to 
the Fiordland crested penguin in any portion of its range.
    In summary, while fisheries bycatch has been suggested as a 
potential source of mortality to the Fiordland crested penguin, the 
best available information leads us to conclude that this is not a 
threat to this species. There is a low-level potential for oil spill 
events to impact this species, but the wide dispersal of this species 
along inaccessible and protected coastlines lead us to conclude that 
this is not a threat to the Fiordland crested penguin. Therefore, we 
find that other natural or manmade factors are not a threat to the 
species in any portion of its range.

Foreseeable Future

    The term ``threatened species'' means any species (or subspecies 
or, for vertebrates, distinct population segments) that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act does not define the 
term ``foreseeable future.'' For the purpose of this proposed rule, we 
define the ``foreseeable future'' to be the extent to which, given the 
amount and substance of available data, we can anticipate events or 
effects, or reliably extrapolate threat trends, such that we reasonably 
believe that reliable predictions can be made concerning the future as 
it relates to the status of the species at issue.
    In considering the foreseeable future as it relates to the status 
of the Fiordland crested penguin, we considered the threats acting on 
the species, as well as population trends. We considered the historical 
data to identify any relevant existing trends that might allow for 
reliable prediction of the future (in the form of extrapolating the 
trends).
    With respect to the Fiordland crested penguin, the available data 
indicate that historical declines have been linked to the invasion by 
introduced predators to the South Island of New Zealand, and recently 
documented declines have been attributed to introduced predators. Given 
the remote and widely dispersed range of the Fiordland crested penguin, 
especially on the mainland of the South Island, significant anti-
predator efforts are largely impractical for this species, and we are 
unaware of any time-bound plan to implement anti-predator protection 
for Fiordland crested penguins or of any significant efforts to stem 
ongoing rates of predation. Therefore, we find that predation by 
introduced species is reasonably likely to continue in the foreseeable 
future. The threat of human disturbance could increase as tourism 
activities become more widespread in the region, and we have no 
information that indicates this threat will be alleviated for the 
Fiordland crested penguin in the foreseeable future.

Fiordland Penguin Finding

    The primary documented threat to the Fiordland crested penguin is 
predation by introduced mammalian and avian predators within the 
species' breeding range. We are only aware of one small breeding 
location that is known to be predator free. Even though this species is 
poorly known, an exhaustive multi-year survey effort documented current 
low population numbers. The impact of predators is evidenced by the 
major historical decline of the Fiordland crested penguin during the 
period of invasion by these predators to the South Island of New 
Zealand. Historical data from about 1890 cites thousands of Fiordland 
crested penguins in areas where current surveys find colonies of only 
100 or fewer. Recent declines at Open Bay and Solander Islands have 
been documented as resulting from weka predation. While the Fiordland 
crested penguin is a remote and hard-to-study species, the impact of 
predators on na[iuml]ve endemic penguins, which have never before 
experienced mammalian predation, is well documented for similar 
species, such as the yellow-eyed penguin (Darby and Seddon 1990, p. 45) 
and the white-flippered penguin (Challies and Burleigh 2004, p. 4) that 
are more accessible to scientific observation.
    New Zealand laws and the bylaws of the national parks, which 
encompass the majority of the range of the Fiordland crested penguin, 
institute provisions to ``as far as possible'' protect this species and 
to seek eradication of nonnative invasive species. Unfortunately, while 
complete eradication of predators, such as weka in isolated island 
habitats (e.g., Solander Island), may be possible, removal of the 
introduced mammalian predators now known to be widespread in mainland 
Fiordland National Park is an extremely difficult, if not impossible, 
task. Similarly, physical protection of some breeding groups from 
predation, as has been done for species such as the yellow-eyed and 
white-flippered penguins, is impractical for the Fiordland crested 
penguin. For other penguin species located in more accessible and more 
restricted ranges, the task of predator control has been undertaken at 
levels of effort meaningful to protection of those species. For this 
remote and widely dispersed species, predator control has only been 
undertaken on a limited basis, and we have no reason to believe this 
threat to the Fiordland crested penguin will be ameliorated in the 
foreseeable future.
    The threat of human disturbance is present in those areas of the 
range most accessible to human habitation, but could increase as 
tourism activities become more widespread in the region. While efforts 
to control this threat have been undertaken, we have no information 
which allows us to conclude this threat will be alleviated for the 
Fiordland crested penguin in the foreseeable future.
    The overall population of the Fiordland crested penguin is small 
(2,500-3,000 pairs) and reported to be declining (Ellis et al. 2007, p. 
6). The ongoing pressure of predation by introduced mammalian and avian 
species on this endemic species over the next few decades, with little 
possibility of significant anti-predator intervention, and the 
potential for human disturbance to impact breeding populations, leads 
us to find that the Fiordland crested

[[Page 77321]]

penguin is likely to become in danger of extinction within the 
foreseeable future throughout all of its range.

Significant Portion of the Range Analysis

    Having determined that the Fiordland crested penguin is likely to 
become in danger of extinction within the foreseeable future 
(threatened) throughout all of its range, we must next consider whether 
there are any significant portions of its range where the species is in 
danger of extinction. See our analysis for the yellow-eyed penguin for 
how we make this determination.
    Fiordland crested penguins breed in widely dispersed small colonies 
along the convoluted and inaccessible southwest coast of the South 
Island of New Zealand and adjacent offshore islands. The Fiordland 
National Park Management Plan reported that nesting success of breeding 
pairs at island sites was greater than at mainland sites, 88 and 55 
percent, respectively. This led us to consider whether the threats in 
the mainland portion of the range may be in danger of extinction. In 
our previous five-factor analyses, we found that threats from human 
disturbance and inadequacy of regulatory mechanisms have similar 
impacts on both island and mainland portions of the range. The primary 
threat to the Fiordland crested penguin is predation by introduced 
birds on islands and introduced mammals on the mainland. While the 
eradication of predators, such as weka, in isolated island habitats may 
be possible, removal of the widespread introduced mammalian predators 
on the mainland may be extremely difficult, if not impossible. While 
the threat of introduced predators is greater on the mainland, the 
overall population is buffered by the existence of some colonies on 
small islands just offshore of the mainland portions of the range and 
at Codfish Island which are free of predators. We find that the 
mainland portions of the range do not satisfy the two initial tests 
because there is not substantial information to conclude that the 
species in those portions may currently be in danger of extinction.
    As a result, while the best scientific and commercial data 
available allows us to make a determination as to the rangewide status 
of the Fiordland crested penguin, we have determined that there are no 
significant portions of the range in which the species is currently in 
danger of extinction.
    Therefore, we propose to list the Fiordland crested penguin as 
threatened throughout all of its range under the Act.

Humboldt Penguin (Spheniscus humboldti)

Background

    The Humboldt penguin is endemic to the west coast of South America 
from Foca Island (5[deg]12'0''S) in northern Peru to the Pinihuil 
Islands near Chiloe, Chile (42[deg]S) (Araya et al. 2000, p. 1). It is 
a congener of the African penguin and has similar life history and 
ecological traits.
    Humboldt penguins historically bred on guano islands off the coast 
of Peru and Chile (Araya et al. 2000, p.1). Prior to human mining of 
guano for fertilizer, the Humboldt penguin's primary nesting habitat 
was in burrows, tunneled into the deep guano substrate on offshore 
islands. While the guano is produced primarily by three other species 
(the Guanay cormorant (Phalacrocorax bouganvillii), the Peruvian booby 
(Sula variegate), and Peruvian pelican (Pelecanus thagus)), Humboldt 
penguins depended on these burrows for shelter from the heat and from 
predators. With the intensive harvest of guano over the last century 
and a half in both countries, Humboldt penguins are forced to nest out 
in the open or seek shelter in caves or under vegetation (Paredes and 
Zavalga 2001, pp. 199-205).
    The distribution of the Humboldt penguin is very closely associated 
with the Humboldt (Peruvian) current. The upwelling of cold, highly 
productive waters off the coast of Peru provides a continuous food 
source to vast schools of fish and large seabird populations (Hays 
1986, p. 170). In the Chilean system to the south, upwelling is lighter 
and occurs more seasonally compared to Peru (Simeone et al. 2002, p. 
44). In all regions, Humboldt penguins feed primarily on schooling fish 
such as the anchovy (Engraulis ringens), Auracanian herring 
(Strangomera bentincki), silversides (Odontesthes regia), garfish 
(Scomberesox saurus) (Herling et al. 2005, p. 21), and Pacific sardine 
(Simeone et al. 2002, p. 47). Depending on the location and the year, 
the proportion of each of these species in the diet varies.
    Periodic failure of the upwelling and its impact on schooling fish 
and fisheries off Peru and Ecuador were the first recorded and 
signature phenomena of El Ni[ntilde]o Southern Oscillation events 
(ENSO). El Ni[ntilde]o events occur irregularly every 2-7 years 
(National Oceanic and Atmospheric Administration (NOAA) 2007, p. 4). 
This periodic warming of sea surface temperatures and consequent 
upwelling failure affects primary productivity and the entire food web 
of the coastal ecosystem. Especially impacted are anchovy and sardine 
populations, which comprise the major diet of Humboldt penguins. During 
El Ni[ntilde]o events, seabirds, fish, and marine mammals experience 
reduced survival and reproductive success, and population crashes (Hays 
1986, p. 170).
    Given the north-south distribution of the Humboldt penguin along 
the Peruvian and Chilean coasts, researchers have looked for variation 
in breeding and foraging along this climatic gradient (Simeone et al. 
2002, pp. 43-50). In dry Peruvian breeding areas, where upwelling 
provides a constant food source, penguins nest throughout the year with 
two well-defined peaks in breeding in the autumn and spring. Adults 
remain near the colony all year. Further south, in northern and north-
central Chile, the birds follow the same pattern, despite stronger 
seasonal differences in weather (Simeone et al. 2002, pp. 48-49). They 
also attempt to breed twice a year, but the autumn breeding event is 
regularly disrupted by the rains more typical at that latitude, and 
there is high reproductive failure. Adults in the southern extent of 
the range (south-central Chile) leave the colonies in winter, 
presumably after abandoning nesting efforts (Simeone et al. 2002, p. 
47). Peruvian and northern Chilean colonies are only impacted by rains 
and flooding during El Ni[ntilde]o years, and during those years, 
nesting attempts are reduced as food supplies shift and adults forage 
farther afield (Culik et al. 2000, p. 2317).
    Similar to the African penguin, the distribution of colonies within 
the breeding range of the Humboldt penguin in Peru has shifted south in 
recent years. This shift may be in response to a number of factors: (1) 
El Ni[ntilde]o events in which prey distribution has been shown to move 
to the south (Culik et al. 2000, p. 2311); (2) increasing human 
pressure in central coastal areas; (3) long-term changes in prey 
distribution (Paredes et al. 2003, p. 135); or (4) overall increases in 
sea surface temperature.
    The Humboldt penguin has decreased historically from more than a 
million birds in the 19th century to 41,000 to 47,000 individual birds 
today (Ellis et al. 2007, p. 7). Nineteenth century reports indicate 
there were more than a million birds in the Humboldt Current area. By 
1936, there was already evidence of major population declines and of 
breeding colonies made precarious by the harvest of guano from over 100 
Peruvian islands (Araya et al. 2000, p. 1).
    Estimates of the population in Peru have fluctuated in recent 
history, with

[[Page 77322]]

3,500 to 7,000 in 1981, with a subsequent reported decrease to 2,100 to 
3,000 individuals after the 1982-83 El Ni[ntilde]o event. In 1996, 
there were reported to be 5,500 individuals, and after the strong 1997-
98 El Ni[ntilde]o event, fewer than 5,000. Population surveys in the 
southern portion of the range in Peru in 2006 found 41 percent more 
penguins than in 2004, increasing estimates for that area from 3,101 
individuals to 4,390 and supporting an overall population estimate for 
Peru of 5,000 individuals (Instituto Nacional de Recursos Naturales 
(INRENA) 2007, p. 1; IMARPE 2007, p. 1).
    In 1995-96, it was estimated there were 7,500 breeding Humboldt 
penguins in Chile (Ellis et al. 1998, p. 99; Luna-Jorguera et al. 2000, 
p. 508). This estimate was significantly revised following surveys 
conducted in 2002 and 2003 (Mattern et al. 2004, p. 373) at Isla 
Chanaral, one of the most important breeding islands for the Humboldt 
penguin. Mattern et al. (2004, p. 373) counted 22,021 adult penguins, 
3,600 chicks, and 117 juveniles at that island in 2003. While larger 
numbers (6,000 breeding birds) had been recorded in the 1980s, counts 
after 1985 had never exceeded 2,500 breeding birds (Ellis et al. 1998, 
p. 99). The authors speculated that rather than representing a sudden 
population increase, the discrepancy is a result of systematic 
underestimates in eight previous counts at Isla Chanaral, which were 
all conducted using a uniform methodology. Just to the south of this 
study area in the Coquimbo region, Luna-Jorguera et al. (2000, p. 506) 
counted a total of 10,300 penguins in on-land and at-sea counts 
conducted in 1999. That study also produced numbers higher than the 
most recent previous census, which had estimated only 1,050 individuals 
in the Coquimbo region (Luna-Jorguera et al. 2000, p. 508). Other than 
the overall rangewide figures for the species presented by Ellis et al. 
(2007, p. 7), there is not a comprehensive current estimate of the 
total number of penguins in Chile. The best available scientific 
information indicates that there are approximately 30,000 to 35,000 
individuals in the Chilean population.
    These updated Chilean counts have led to revision of overall 
population estimates for the species. As recently as 2007, BirdLife 
International (2007, p. 2) reported a total population of 3,000 to 
12,000. Based on the new data, Ellis et al. (2007, p. 7) report a 
population of 41,000 to 47,000 individuals.
    The 2007 IUCN Red List (BirdLife International 2007, p. 1) 
categorizes the Humboldt penguin as ``Vulnerable'' on the basis of 30 
to 49 percent declines over the past 3 generations and predicted over 3 
generations in the future.

Summary of Factors Affecting the Humboldt Penguin

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Humboldt Penguin's Habitat or Range

    The habitat of the Humboldt penguin consists of terrestrial 
breeding and molting sites and the marine environment, which serves as 
a foraging range year-round.
    Modification of their terrestrial breeding habitat is a continuing 
threat to Humboldt penguins. Humboldt penguin breeding islands were, 
and continue to be, a source of guano for the fertilizer industry and 
have been exploited since 1840 in both Peru and Chile. From 1840 to 
1880, Peru exported an estimated 12.7 million T (11.5 t) of guano from 
its islands (Cushman 2007, p. 1). Throughout the past century, Peru has 
managed the industry through a variety of political and ecological 
conflicts, including the devastating impacts of El Ni[ntilde]o on 
populations of guano-producing birds and the competition between the 
fishing industry and the seabird populations that are so valuable to 
guano production. After 1915, caretakers of the islands routinely 
hunted penguins for food even as their guano nesting substrate was 
removed; resulting in the birds being virtually eliminated from the 
guano islands (Cushman 2007, p. 11). Harvest of guano continues on a 
small scale today and is managed by Proyecto Especial de Promocion del 
Aprovechamiento de Abonos Provenientes de Aves (PROABONOS), a small 
government company producing fertilizer for organic farming (Cushman 
2007, p. 24).
    Reports from 1936 described completely denuded guano islands and 
indicated that by 1936 Humboldt penguin populations had undergone a 
vast decline throughout the range (Ellis et al. 1998, p. 97). Guano, 
which was initially many meters deep, was initially harvested down to 
the substrate level. Then, once the primary guano-producing birds had 
produced another ankle-deep layer, it was harvested again. The Humboldt 
penguins, which formerly burrowed into the abundant guano, were 
deprived of their primary nesting substrate and forced to nest in the 
open, where they are more susceptible to heat stress and their eggs and 
chicks are more vulnerable to predators, or they were forced to resort 
to more precarious nest sites (Ellis et al. 1998, p. 97).
    Paredes and Zavalga (2001, pp. 199-205) investigated the importance 
of guano as a nesting substrate and found that Humboldt penguins at 
Punta San Juan, where guano harvest has ceased, preferred to nest in 
high-elevation sites where there was adequate guano available for 
burrow excavation. As guano depth increased in the absence of harvest, 
the number of penguins nesting in burrows increased. Penguins using 
burrows on cliff tops had higher breeding success than penguins 
breeding in the open, illustrating the impact of loss of guano 
substrate on the survival of Humboldt penguin populations.
    Guano harvesting continues on Peruvian points and islands under 
government control. The fisheries agency, Instituto del Mar del Peru 
(IMARPE), is working with the parastatal guano extraction company, 
PROABONOS, to limit the impacts of guano extraction on penguins at 
certain colonies, with harvest conducted outside the breeding season 
and workers restricted from disturbing penguins (IMARPE 2007, p. 2). 
Two major colonies at Punta San Juan and Pchamacamac Island are in 
guano bird reserves and under the management and protection of the 
guano extraction agency, which has built walls to keep out people and 
predators (UNEP World Conservation Monitoring Center (UNEP WCMC) 2003, 
p. 9). However, guano extraction is still listed as a moderate threat 
to some island populations within the Reserva Nacional de Paracas 
(Lleellish et al. 2006, p. 4) and illegal guano extraction is listed by 
the Peruvian natural resource agency, Instituto Nacional de Recursos 
Naturales (INRENA), as one of three primary threats to the Humboldt 
penguin in Peru (INRENA 2007, p. 2). The penguin Conservation 
Assessment and Management Plan (CAMP) (Ellis et al. 1998, p. 101) 
recommended that the harvest of guano in Peru be regulated in order to 
preserve nesting habitat and reduce disturbance during the nesting 
seasons. Guano harvest is reported to have ceased in Chile (UNEP WCMC 
2003, p. 6). We conclude, on the basis of the extent and severity of 
exploitation throughout the range of the Humboldt penguin in both 
countries over the past 170 years, and on the basis of limited ongoing 
guano extraction in Peru, that modification of the terrestrial breeding 
habitat is a threat to the survival of the Humboldt penguin throughout 
its range.
    With respect to modification of the marine habitat of the Humboldt 
penguin, periodic El Ni[ntilde]o events have

[[Page 77323]]

been shown to have significant effects on the marine environment on 
which Humboldt penguins depend and must be considered the main marine 
perturbation for the Humboldt penguin (Ellis et al. 1998, p. 101), 
impacting penguin colonies in Peru (Hays 1986, p. 169-180; INRENA 2007, 
p. 1) and Chile (Simeone et al. 2002, p. 43). The strength and duration 
of El Ni[ntilde]o events has increased since the 1970s, with the 1997-
98 event the largest on record (Trenberth et al. 2007, p. 288). The 
Humboldt Penguin Population and Habitat Viability Assessment (Araya et 
al. 2000, pp. 7-8) concluded that, even without El Ni[ntilde]o and 
other impacts, documented rates of reproductive success and survival 
would cause declines in the Chilean populations. In the absence of 
other human impacts, annual declines from El Ni[ntilde]o events in 
Chile alone were projected to lead to 2.3 to 4.4 percent annual 
declines. Peruvian population data found an overall population decline 
of 65 percent during the 1982-83 El Ni[ntilde]o event (Hays 1986, p. 
169). While we have not found comparable documentation of the impact of 
the 1997-98 event in Peru, few birds were recorded breeding at guano 
bird reserves in 1998 and, at one colony, Punta San Juan, the number of 
breeding individuals appears to have declined by as much as 75 percent 
between 1996 and 1999 before subsequent rebound (Paredes et al. 2003, 
p. 135). This suggests that a similar level of impact from a single El 
Ni[ntilde]o event in the future could reduce current Peruvian 
populations from 5,000 birds to 1,250 to 1,750 birds. Cyclical El 
Ni[ntilde]o events cause high mortality among seabirds, but there is 
also high selection pressure on Humboldt Current seabird populations to 
increase rapidly in numbers after each event (Ellis et al. 1998, p. 
101). Nonetheless, with strengthening El Ni[ntilde]o events, reduced 
Humboldt penguin population numbers, and the compounding influence of 
other threat factors, such as ongoing competition with commercial 
fisheries for food sources, which are discussed below under Factor E, 
the resiliency of Humboldt penguins to recover from cyclical El 
Ni[ntilde]o events is highly likely to be reduced from historical times 
(Ellis et al. 1998, p. 101).
    On the basis of this analysis, we find that the present and 
threatened destruction, modification, or curtailment of both its 
terrestrial and marine habitats is a threat to the Humboldt penguin 
throughout all of its range now and in the foreseeable future.

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

    Hunting of Humboldt penguins for food and bait and harvesting of 
their eggs have been long established on the coasts of Chile and Peru; 
it is not clear how much hunting persists today. At Pajaros Island in 
Chile, Humboldt penguins are sometimes hunted for human consumption or 
for use as bait in the crab fishery. At the Punihuil Islands farther 
south, they are also hunted on occasion for use as crab bait (Simeone 
et al. 2003, p. 328; Simeone and Schlatter 1998, p. 420). Paredes et 
al. (2003, p. 136) reported that as fishing occurs more frequently in 
the proximity of penguin rookeries this has attracted fishermen to take 
penguins for food in Peru. Cheney (UNEP WCMC 2003, p. 6) reported an 
observation of a fisherman taking 150 penguins to feed a party. In 
1995, egg harvest was listed as the primary threat to Chilean 
populations (UNEP WCMC 2003, p. 6), but recent information does not 
indicate whether that practice continues today. Paredes et al. (2003, 
p. 136) also reported that guano harvesters supplement their meager 
incomes and diets through collecting eggs and chicks, although the 
fisheries agency, IMARPE, is working with PROABONOS to restrict workers 
from disturbing penguins (IMARPE 2007, p. 2). On the basis of this 
information, we conclude that localized intentional harvest may be 
ongoing. We have no basis to evaluate the effectiveness of reported 
efforts to control this harvest. Therefore, we conclude that 
intentional take is a threat to the Humboldt penguin throughout all of 
its range.
    It was estimated in 1985 that 9,264 Humboldt penguins had been 
exported to several zoos around the world within a period of 32 years. 
Exportation of Humboldt penguins from Peru or Chile is now prohibited 
(Ellis et al. 1998, p. 101) and, as discussed under Factor D, the 
species is listed in Appendix I of the Convention on International 
Trade in Endangered Species of Wild Fauna and Flora (CITES).
    Tourism has been identified as a potential threat to the Humboldt 
penguin. Since the 1990 designation of the Humboldt National Reserve, 
which includes the islands of Damas, Choros, and Chanaral in Chile, 
tourism has increased rapidly but with little regulation (Ellenberg et 
al. 2006, p. 97). Ellenberg et al. (2006, p. 99) found that Humboldt 
penguin breeding success varied with levels of tourism at these three 
islands. Breeding success was very low at Damas Island, the most 
tourist accessible island that saw over 10,000 visitors. Better 
breeding success was observed at Choros Island, a less accessible 
island that saw less than 1,000 visitors. The highest breeding success 
was observed at the remote and largest Chanaral Island colony, where 
tourist access was negligible. Unlike their congeners, the Magellanic 
penguins (Spheniscus magellanicus), Humboldt penguins were found to be 
extremely sensitive to human presence and to display little habituation 
potential, suggesting a strong need for tourism guidelines for this 
species (Ellenberg et al. 2006, p. 103). Simeone and Schlatter (1998, 
p. 420) described nest destruction by unregulated tourists at Punihuil 
Island, a popular tourist destination in southern Chile. Both the 
attractiveness of the penguins for tourism and the potential for 
increased impacts from human disturbance stem from the coincidence of 
the prime tourist season with the Humboldt penguin's spring and summer 
breeding season. In Peru, the impact of tourism is listed as a minimal 
to mid-level threat at the Reserva Nacional de Paracas (Lleellish et 
al. 2006, p. 4).
    In the areas described in the literature, tourism has increased 
rapidly and with little regulation in the Humboldt National Reserve, 
has caused nest destruction at Punihuil Island in Chile, and is 
reported to be a minimal to mid-level threat at Reserva Nacional de 
Paracas in Peru. Because Humboldt penguins are extremely sensitive to 
the presence of humans, the species' breeding success is impacted with 
the increased levels of tourism, and the prime tourist season coincides 
with the species' spring and summer breeding season, we conclude that 
tourism is a threat to the species in portions of its range where it is 
unregulated.
    Other human activities may disturb penguins. For example, fishermen 
hunting European rabbits (Oryctolagus cuniculus) disturbed penguins at 
Choros Island (Simeone et al. 2003, p. 328), but we do not conclude 
that this activity has occurred at a scale that represents a threat to 
the Humboldt penguin.
    We have identified intentional take and unregulated tourism as a 
threat to Humboldt penguins. Therefore, we find that overutilization 
for commercial, recreational, scientific, or educational purposes is a 
threat to the Humboldt penguin throughout all of its range now and in 
the foreseeable future.

Factor C. Disease or Predation

    There is no information to indicate that disease is a threat to the 
Humboldt penguin.

[[Page 77324]]

    Simeone et al. (2003, p. 331) reported that the presence of rats, 
rabbits, and cats has been documented on islands along the Chilean 
coast, but their impacts on Humboldt penguins are not known. In Peru, 
``rats were observed at Pajaros Island, Chachagua, and Pajaro Nido. At 
Pajaros Islands, rats were present in large numbers and were observed 
to predate on penguin eggs and chicks'' (Simeone et al. 2003, p. 328). 
However, on the basis of the best available information, we do not 
conclude that predation is exerting a significant impact on Humboldt 
penguin populations. Therefore, on the basis of the best available 
information, we conclude that disease and predation are not a threat to 
the Humboldt penguin in any portion of its range.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    The Humboldt penguin is listed as `endangered' in Peru, the highest 
threat category under Peruvian legislation, and take, capture, 
transport, trade and export are prohibited except for scientific or 
cultural purposes (IMARPE 2007, p. 1; UNEP WCMC 2003, p. 8). Most 
breeding sites are protected by designated areas. The principal 
breeding colonies are legally protected by PROABONOS, the institute 
managing guano extraction. The Reserva Nacional de Paracas protects an 
area of 1,293 mi2 (3,350 km2) of the coastal 
marine ecosystem. In 2006, 1,375 penguins were observed in this reserve 
(Lleellish et al. 2006, pp. 5-6). However, patrols of this area are 
inadequate to police illegal activities such as dynamite fishing 
(Lleellish et al. 2006, p. 4).
    In Chile, there is a 30-year moratorium on hunting and capture of 
Humboldt penguins and at least four major colonies are protected. Most 
terrestrial sites where the species occurs are within the national 
system of protected areas (UNEP WCMC 2003, p. 8).
    The species is listed in Appendix I of the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES) and in Appendix I of the Convention on Migratory Species. 
Exportation of Humboldt penguins from Peru or Chile is now prohibited 
(Ellis et al. 1998, p. 101), removing this as a potential threat to the 
species.
    While legal protections are in place for the Humboldt penguin in 
both Chile and Peru, in general it is reported that enforcement of such 
laws are limited due to limited resources and the remote location of 
penguin colonies (UNEP WCMC 2003, p. 8). The UNEP WCMC Report on the 
Status of Humboldt Penguins concluded that little has been done to 
establish particular fishing-free zones and there is little progress in 
preventing penguins from being caught in fishing nets.
    Majluf et al. (2002, p. 1342) stated, ``There is currently no 
management of artesanal [sic] gill-net fisheries in Peru, except for 
restrictions on retaining cetaceans and penguins. Even these 
regulations are difficult to enforce in remote and isolated ports such 
as San Juan.''
    Both countries have national authorities and national contingency 
plans for oil spill response. Chile has the capability to respond to 
Tier One (small spills with no outside intervention) and Tier Two 
(larger spills requiring additional outside resources and manpower) oil 
spill events (International Tankers Owners Pollution Federation Limited 
(ITOPF) 2003, p. 2). As of July 2003, Peru was not listed as having 
significant capability to respond to oil spill events (ITOPF 2000b, p. 
1).
    We find that inadequacy of existing regulatory mechanisms, 
particularly in the area of enforcement of existing prohibitions 
related to fishing methods and management of fisheries bycatch, is a 
threat to the Humboldt penguin throughout all of its range now and in 
the foreseeable future.

Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

    Both large-scale commercial fisheries extraction and artesanal 
fisheries compete for the primary food of the Humboldt penguin 
throughout its range (BirdLife International 2007, p. 4; Ellis et al. 
1998, p. 100; Herling et al. 2005, p. 23; Hennicke and Culik 2005, p. 
178). While El Ni[ntilde]o events cause severe fluctuations in Humboldt 
penguin numbers, over-fishing and entanglement (discussed below) are 
identified as a steady contributor to underlying long-term declines 
(BirdLife International 2007, p. 4). The anchovy fishery in Peru 
collapsed in the 1970s due to high catches and overcapacity of fishing 
fleets, exacerbated by the effects of the 1972-73 El Ni[ntilde]o event. 
Twenty years passed before it became clear that this fishery had 
recovered (Food and Agriculture Organization (FAO) 2007, p. 2). These 
recovered stocks continue to be significantly impacted by major El 
Ni[ntilde]o events, but have rebounded more quickly after recent 
events, with Peru reporting anchovy catches of 8.64 million T (9.6 
million t) in 2000 and 5.76 million T (6.4 million t) in 2001 (FAO 
2007, p. 2), and Chile reporting catches of 1.25 million T (1.4 million 
t) in 2004 (FAO 2006, p. 4). In Chile, local-level commercial 
extraction of specific fish species has reduced those species in the 
diet of penguins, and it has been noted that fisheries extraction has 
the potential of harming Humboldt penguins if overfishing occurs 
(Herling et al. 2005, p. 23). Culik and Luna-Jorquera (1997, p. 555) 
and Hennicke and Culik (2005, p.178), tracking foraging effort of 
penguins in northern Chile, concluded that even small variations in 
food supply, related to small changes in sea-surface temperature, led 
to increased foraging time. They concluded that Humboldt penguins have 
high energetic costs to obtain food even in non-El Ni[ntilde]o years. 
They recommended the establishment of no-fishing zones, for example, 
encompassing the foraging range around the breeding area at Pan de 
Azucar Island to buffer the species from possible catastrophic effects 
of future El Ni[ntilde]o events. While commercial fishing in 
combination with El Ni[ntilde]o events has contributed to the historic 
declines of Humboldt penguin, and the identified threat of El 
Ni[ntilde]o will interact with fisheries extraction during future El 
Ni[ntilde]o episodes, on the basis of the best available information we 
conclude that overfishing or competition for prey from commercial or 
artesanal fisheries is not a threat to the Humboldt penguin in any 
portion of its range.
    Incidental take by fishing operations is the most significant 
threat to Humboldt penguins. The Government of Peru lists incidental 
take by fisheries in fishing nets as one of the major sources of 
penguin mortality (IMARPE 2007, p. 2). Reports from Chile indicated a 
similar level of impact on the species (Majluf et al. 2002, pp. 1338-
1343). In Peru, the expansion of local-scale fisheries and the 
switching to new areas and species as local fisheries are unable to 
compete with larger commercial operations has brought humans and 
penguins into increasing contact, with increased penguin mortality due 
to entanglement in fishing nets (Paredes et al. 2003, p. 135). Paredes 
et al. (2003, p. 135) attribute the changes in distribution of penguin 
colonies southward in Peru to this increased human disturbance--there 
are now fewer penguins on the central coastal area and more to the 
south.
    Between 1991 and 1998, Majluf et al. (2002, pp. 1338-1343) recorded 
922 deaths in fishing nets out of a population of approximately 4,000 
breeding Humboldt penguins at Punta San Juan, Peru. This level of 
incidental take was found to be unsustainable even without factoring in 
periodic El Ni[ntilde]o impacts. Take was highly variable between 
years, with the greatest incidental mortality when surface set

[[Page 77325]]

drift gill nets were being used to catch cojinovas (Seriolella 
violace), a species that declined during the course of the study. A 
subsequent study found that the risk of entanglement is highest when 
surface nets are set at night (Taylor et al. 2002, p. 706).
    In Chile, Simeone et al. (1999, pp. 157-161) recorded 605 Humboldt 
penguins drowned in drift gill nets set for corvina (Cilus gilberti) in 
the Valparaiso region of central Chile between 1991 and 1996. Birds 
pursuing anchovies and sardines were apparently unable to see the 
transparent nets in their path and were entangled and drowned. These 
mortalities occurred outside of the breeding season when penguins 
forage in large aggregations and probably involved birds originating 
from beyond small local colonies. The deaths recorded represent 
underestimates of rangewide mortality--the authors only studied one of 
four major regions where corvina fishing occurred. Incidental mortality 
from such fishing operations is thought to affect Humboldt penguins 
throughout the species' range (Wallace et al. 1999, p. 442). Therefore 
we conclude that fisheries bycatch is a threat to the Humboldt penguin.
    In addition, fishing with explosives, such as dynamite, is listed 
by INRENA as one of three major threats to Humboldt penguins in Peru 
(INRENA 2007, p. 2). The use of explosives is recurrent in the Reserva 
Nacional de Paracas, the primary center of population for penguins in 
Peru. Explosives use is especially prevalent in the southern zone, an 
area that contains more than 73 percent of the population, but does not 
receive as thorough patrolling as the north (Lleellish et al. 2006, p. 
4).
    Oil and chemical spills can have direct effects on the Humboldt 
penguin. The range of the species encompasses major industrial ports 
along the coast of both Chile and Peru. Approximately 100,000 barrels 
per day of crude oil transit the coastal waters from the tip of South 
America to Panama (ITOPF 2003, p. 1) with over 1,000 tankers calling 
annually at ports in that entire region. Major spill events in Chile 
have been limited to the Straits of Magellan to the south of the range 
of the Humboldt penguin, and no major events have been recorded for 
Peru (ITOPF 2000a, p. 2; ITOPF 2000b, p. 2). However, lesser spills 
have occurred. On May 25, 2007, about 92,400 gallons (350,000 liters) 
of crude oil leaked into San Vicente Bay in Talcuhuano, near 
Concepcion, Chile, during offloading of fuel by the vessel New 
Constellation, with impacts on sea lions and seabirds, including 
Humboldt penguins (Equipo Ciudano 2007, p. 1). A similar spill of 2,206 
T (2,000 t) of crude oil occurred at an oil terminal off Lima in 1984, 
severely polluting beaches there (ITOPF 2000b, p. 3). As noted in 
Factor D, Chile and Peru have limited ability to handle spill cleanup.
    However, while there is a possibility of oil spill impacts as a 
result of incidents along the Peruvian or Chilean coast, we find that a 
number of elements mitigate against our finding this a threat to the 
species. There is little history of spill events in the region and the 
breeding colonies of Humboldt penguin are widely dispersed along a very 
long coastline. In addition, the Humboldt penguin distribution does not 
encompass the southern tip of South America where the risk of oil spill 
is greatest. On this basis, we conclude that oil spill impacts are not 
a threat to the survival of the Humboldt penguin in any portion of its 
range.
    In summary, we find that fisheries bycatch is a threat to the 
survival of the Humboldt penguin throughout all of its range now and in 
the foreseeable future.

Foreseeable Future

    The term ``threatened species'' means any species (or subspecies 
or, for vertebrates, distinct population segments) that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act does not define the 
term ``foreseeable future.'' For the purpose of this proposed rule, we 
define the ``foreseeable future'' to be the extent to which, given the 
amount and substance of available data, we can anticipate events or 
effects, or reliably extrapolate threat trends, such that we reasonably 
believe that reliable predictions can be made concerning the future as 
it relates to the status of the species at issue.
    In considering the foreseeable future as it relates to the status 
of the Humboldt penguin, we considered the threats acting on the 
species, as well as population trends. We considered the historical 
data to identify any relevant existing trends that might allow for 
reliable prediction of the future (in the form of extrapolating the 
trends).
    With respect to the Humboldt penguin, the available data indicate 
that historical declines have resulted from the destruction of Humboldt 
penguin nesting substrate by guano collection, and this loss of nesting 
habitat continues to impact the breeding success of the species. We 
have no reason to believe this will change in the future. El 
Ni[ntilde]o events have caused periodic crashes of the food supply of 
Humboldt penguins in Peru and Chile in the historic and recent past. 
Such events, which occur irregularly every 2-7 years, have increased in 
frequency and intensity in recent years and are likely to impact 
Humboldt penguins more frequently and more severely in the foreseeable 
future. The harvest of Humboldt penguins for food, eggs, and bait is a 
threat to the survival of the Humboldt penguin, and we have no reason 
to believe this threat will be ameliorated in the future. Incidental 
take by fisheries operations has emerged as the most significant human-
induced threat to Humboldt penguins in both Chile and Peru, causing 
significant mortality of Humboldt penguins in both countries in the 
1990s. There currently appears to be a lack of enforcement and a lack 
of significant measures to reduce the impacts. Based on our analysis of 
the best available information, we have no reason to believe that 
population trends will change in the future, nor that the effects of 
current threats acting on the species will be ameliorated in the 
foreseeable future.

Humboldt Penguin Finding

    The Humboldt penguin has decreased historically from more than a 
million birds in the 19th century to 41,000 to 47,000 individual birds 
today. Since 1981, the Peruvian population has fluctuated between 3,500 
and 7,000 individuals, with the most recent estimate at 5,000 
individuals. Estimates of the population in Chile (30,000 to 35,000 
individuals) have been recently updated with improved documentation of 
a colony at Isla Chanaral. The increase in the population estimate is a 
correction of systematic undercounting for 20 years, and cannot be 
concluded to signify recent population increases in Chile.
    Historical threats to terrestrial habitat, in particular the 
destruction of Humboldt penguin nesting substrate by guano collection, 
have been responsible for the massive historical decline of the 
species, and this loss of nesting habitat continues to impact the 
breeding success of the species. Effects of guano extraction on the 
current populations appear to have been reduced by designation of 
protected areas and management of the limited guano harvesting that 
still occurs. However, at guano islands the availability and quality of 
nesting habitat is still impacted by both historical and ongoing 
harvest.
    The impact of El Ni[ntilde]o events, which have caused periodic 
crashes of the food sources of Humboldt penguins in Peru and Chile in 
the historic and recent past, is a threat factor leading to declines of 
this species. Such events,

[[Page 77326]]

which occur irregularly every 2-7 years, have increased in frequency 
and intensity in recent years and are likely to impact Humboldt 
penguins more and more severely in the foreseeable future. Given 
reduced population sizes and the existence of other significant 
threats, the resiliency of the Humboldt penguin to respond to these 
cyclical El Ni[ntilde]o events is greatly reduced.
    We find that harvest of Humboldt penguins for food, eggs and bait 
is a threat to the survival of the Humboldt penguin throughout all of 
its range. Tourism, if not properly managed, has the potential to 
impact individual colonies; however, we do not conclude this is a 
threat to the species.
    Unlike the African penguin which breeds directly on a major 
shipping route for petroleum and at major ports of call for tanker 
traffic, the range of the Humboldt penguin along the coast of Chile and 
Peru does not have the same history of major spills or the same level 
of shipping traffic. Therefore we conclude that oil spill impacts are 
not a threat to the survival of the Humboldt penguin in any portion of 
its range.
    Industrial fisheries extraction, which in conjunction with El 
Ni[ntilde]o caused collapse of anchovy stocks in the 1970s, has had a 
historical influence on the species and contributed to its long-term 
decline. The recovery of fish stocks since the 1970s, however, has 
improved the food base of this species. Although large-scale commercial 
fisheries and local-scale fisheries extraction is targeting the same 
prey as the Humboldt penguin, we do not identify this as a current 
threat to the species. More importantly, incidental take by fisheries 
operations has emerged as the most significant human-induced threat to 
Humboldt penguins in both Chile and Peru. Entanglement in gill nets 
caused significant documented mortality of Humboldt penguins in both 
countries in the 1990s. There is evidence of lack of enforcement and 
lack of significant measures to reduce the impacts of bycatch. 
Therefore, we find that fisheries bycatch is a threat to the Humboldt 
penguin throughout all of its range.
    On the basis of: (1) Destruction of its habitat by guano 
extraction; (2) high likelihood of El Ni[ntilde]o events 
catastrophically impacting the prey of Humboldt penguins in cyclical 2-
to 7-year timeframes; (3) intentional harvest of this species for meat, 
eggs, and bait; (4) inadequacy of regulatory mechanisms, especially 
with respect to controlling fisheries bycatch; and (5) ongoing threat 
of incidental take from fisheries bycatch, we find that the Humboldt 
penguin is likely to become in danger of extinction within the 
foreseeable future throughout all of its range.

Distinct Population Segment (DPS)

    Section 3(16) of the Act defines ``species'' to include ``any 
distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature.'' To interpret and implement 
the DPS provisions of the Act and Congressional guidance, the Service 
and National Marine Fisheries Service published a Policy regarding the 
recognition of Distinct Vertebrate Population Segments in the Federal 
Register (DPS Policy) on February 7, 1996 (61 FR 4722). Under the DPS 
policy, three factors are considered in a decision concerning the 
establishment and classification of a possible DPS. These are applied 
similarly to the list of endangered and threatened species. The first 
two factors--discreteness of the population segment in relation to the 
remainder of the taxon and the significance of the population segment 
to the taxon to which it belongs--bear on whether the population 
segment is a valid DPS. If a population meets both tests, it is a DPS 
and then the third factor is applied--the population segment's 
conservation status in relation to the standards for listing, 
delisting, or reclassification under the Act.

Discreteness Analysis

    Under the DPS policy, a population segment of a vertebrate taxon 
may be considered discrete if it satisfies either of the following 
conditions: (1) It is markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological, or 
behavioral factors, or (2) it is delimited by international boundaries 
within which differences in control of exploitation, management of 
habitat, conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act.
    Humboldt penguins have a continuous range from northern Peru to 
mid-southern Chile. With respect to discreteness criterion 1, we have 
not identified any marked biological boundaries between populations 
within that range or of differences in physical, physiological, 
ecological, or behavioral factors among any groups within that range. 
We have found no reports of genetic or morphological discontinuity 
between any discrete elements of the population. The range of the 
Humboldt penguin crosses the international boundary between Peru and 
Chile, which leads to evaluation of the second discreteness factor. 
However, in our analysis of differences between Peru and Chile in 
conservation status, habitat management, and regulatory mechanisms, we 
have found no significant differences between the two countries. In 
both countries, take of penguins is prohibited, but some illegal take 
occurs, and measures to address fisheries bycatch are similar, but 
fisheries bycatch remains widespread. Both countries provide protection 
to major breeding colonies of the species. The Chilean population is 
more numerous, but the extent of their range is greater. Given the fact 
that problems in census data have only recently been corrected, we 
cannot conclude that Chilean Humboldt penguin population trends are 
different from the Peruvian or that conservation concerns are 
different. In fact, the impacts of habitat loss, the effects of El 
Ni[ntilde]o, intentional take, inadequacy of regulatory mechanisms, and 
fisheries bycatch are concerns throughout the range.
    Based on our analysis, we do not find that differences in 
conservation status or management for Humboldt penguins across the 
range countries are sufficient to justify the use of international 
boundaries to satisfy the discreteness criterion of the DPS Policy. 
Therefore, we have concluded that there are no population segments that 
satisfy the discreteness criterion of the DPS Policy. As a consequence, 
we could not identify any geographic areas or populations that would 
qualify as a DPS under our 1996 DPS Policy (61 FR 4722).

Significant Portion of the Range Analysis

    Having determined that the Humboldt penguin is likely to become in 
danger of extinction within the foreseeable future throughout all of 
its range, we also considered whether there are any significant 
portions of its range where the species is currently in danger of 
extinction. See our analysis for the yellow-eyed penguin for how we 
make this determination.
    Given the continuous linear range of the Humboldt penguin which 
breeds from northern Peru to south-central Chile and the distribution 
of colonies along that coast, no specific geographic portions of 
concern were immediately apparent. Therefore, we considered the 
occurrence of threat factors and to what extent their occurrence was 
uneven throughout the range or concentrated in any particular portion 
of the range, or whether there were any portions of the range where the 
threats were different.
    Overall, for each factor identified as a threat, we found that 
these were threats throughout the range. Terrestrial and marine habitat 
loss, which included the impacts of guano extraction, the effects

[[Page 77327]]

of El Ni[ntilde]o, intentional harvest, the inadequacy of regulatory 
mechanisms, and fisheries bycatch were determined to be threats 
throughout Humboldt penguin's range.
    In reviewing our findings, one difference within threat Factor A 
relates to the ongoing limited harvest of guano in Peru, while such 
harvest has stopped in Chile. In our finding, we indicated that both 
the historic and present impacts of guano extraction were a threat to 
the Humboldt penguin. On the basis of this difference, we considered 
whether the Peruvian population of Humboldt penguin may be in danger of 
extinction in a significant portion of its range. The information 
available on local harvest patterns or population trends in specific 
areas where guano harvest is documented do not allow us to divide the 
range further. The most recent 2006 estimate of the Peruvian population 
of the Humboldt penguin is approximately 5,000 individuals. This count 
includes an increase of 41 percent since 2004 in the southern portion 
of the range where 80 percent of the birds are found. The overall 
population has fluctuated between 2,100 and 7,000 individuals since 
1981with fluctuations attributed to response to El Ni[ntilde]o events. 
While the population of Humboldt penguins in Peru has fluctuated at low 
numbers for many years, current evidence of increases over the last few 
years reflects continued reproduction and resiliency of this 
population. Therefore, we find that the Humboldt penguin is not 
currently in danger of extinction in the Peruvian portion of the range.
    As a result, while the best available scientific and commercial 
data allows us to make a determination as to the rangewide status of 
the Humboldt penguin, we have determined that there are no significant 
portions of the range in which the species is currently in immediate 
danger of extinction.
    Therefore, we propose to list the Humboldt penguin as a threatened 
species throughout its range under the Act.

Erect-Crested Penguin (Eudyptes sclateri)

Background

    The erect-crested penguin, a New Zealand endemic, breeds primarily 
on the Bounty Islands and Antipodes Islands, located respectively, 
approximately 437 mi (700 km) and 543 mi (870 km) southeast of the 
South Island of New Zealand (NZ DODC 2006, pp. 27, 30). The Bounty 
Islands consist of eight islands with a total area of 0.5 
mi2 (1.3 km2). The Antipodes Islands have two 
main islands and some minor islands. The largest is Antipodes Island, 
consisting of 23 mi2 (60 km2), and the second 
island, Bollons, consists of 0.77 mi2 (2 km2). 
Erect-crested penguins nest in large, dense, conspicuous colonies, 
numbering thousands of pairs, on rocky terrain (BirdLife International 
2007, p. 3). Winter distribution at sea is largely unknown.
    The Action Plan for Seabird Conservation of New Zealand lists the 
total world breeding population of erect-crested penguin at 81,000 
pairs +/-4,000 pairs (Taylor 2000, p. 65).
    Counts of erect-crested penguins at Bounty Islands in 1978 
estimated 115,000 breeding pairs (Robertson and van Tets 1982, p. 315) 
although these counts are considered overestimations (Houston 2007, p. 
3). While the data were not directly comparable, 1997 counts found 
27,956 pairs (Taylor 2000, p. 65), suggesting that a large decline in 
numbers may have occurred at the Bounty Islands (BirdLife International 
2007, p. 2). There have been no further surveys since 1997-98.
    In 1978, the population on the Antipodes was thought to be similar 
in size to Bounty Islands (about 115,000 breeding pairs). More recent 
surveys in 1995 indicate a population of 49,000 to 57,000 pairs in the 
Antipodes. Comparisons of photographs of nesting areas from the 
Antipodes show a constriction of colonies at some sites from 1978-1995. 
There have been no subsequent formal counts of erect-crested penguins 
at either the Bounty Islands or the Antipodes, and visits to the 
islands are rare. Both observations and photographs taken by 
researchers visiting these islands for other purposes have provided 
anecdotal information that erect-crested penguin colony sizes continue 
to decrease (Davis, 2001, p. 8; D. Houston 2008, pers. comm.).
    A few hundred birds formerly bred at Campbell Island farther to the 
southwest in the 1940s; in 1986-87, a small number of birds (20 to 30 
pairs) were observed there, but no breeding was seen (Taylor 2000, p. 
65). Breeding on the Auckland islands, also to the southwest, was 
considered a possibility, with one pair found breeding there in 1976 
(Taylor 2000, p. 65). The most recent penguin conservation assessment 
(Ellis et al. 2007, p. 6) reported erect-crested penguins are no longer 
present at Campbell or Auckland Islands. There is one record of 
breeding on the mainland of the South Island of New Zealand at Otago 
Peninsula, but it is unlikely there was ever widespread breeding there 
(Houston 2007, p. 3). Based on this information, we do not consider 
these areas as being part of the erect-crested penguin's current range, 
and have not included them in our analysis of the status of this 
species.
    On the basis of declines of at least 50 percent in the past 45 
years and a breeding range constricted to two locations, the IUCN has 
listed the species as `Endangered' on the IUCN Red List (BirdLife 
International 2007, p. 1). It is ranked as Category B (second priority) 
on the Molloy and Davis threat categories used by the New Zealand DOC 
(Taylor 2000, p. 33) and, on that basis, placed in the second category 
of highest priority in the New Zealand Action Plan for Seabird 
Conservation (Taylor 2000, p. 33). The species is listed as `acutely 
threatened--nationally endangered' on the New Zealand Threat 
Classification System list (Hitchmough et al. 2007, p. 38; Molloy et 
al. 2002, pp. 13-23). Under this classification system, which is non-
regulatory, species experts assess the placement of species into threat 
categories according to both status criteria and threat criteria.

Summary of Factors Affecting the Erect-Crested Penguin

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Erect-Crested Penguin Habitat or Range

    There is little evidence of destruction, modification, or 
curtailment of erect-crested penguin breeding habitat on land at the 
Bounty and Antipodes Islands. Feral animals, such as sheep and cattle, 
which could trample nesting habitat, are absent. Competition for 
breeding habitat with fur seals is reported to be minimal (Houston 
2007, p. 1).
    The New Zealand sub-Antarctic islands have been inscribed on the 
World Heritage List (World Heritage List 2008, p. 16). All islands are 
protected as National Nature Reserves and are State-owned (World 
Heritage Committee Report 1998, p. 21). We find that the present or 
threatened destruction, modification, or curtailment of the terrestrial 
habitat or range of the erect-crested penguin is not a threat of the 
species in any portion of its range.
    Given the lack of terrestrial predators at the majority of erect-
crested penguin colony sites, the absence of direct competition with 
other species, and the lack of physical habitat destruction at these 
sites, recent declines in erect-crested populations have been 
attributed to changes in the marine habitat. Penguins are susceptible 
to local ecosystem perturbations because they are constrained by how 
far they can swim from the colony in search of food (Davis 2001, p. 9). 
It has been

[[Page 77328]]

hypothesized that slight warming of sea temperatures and change in 
distribution of prey species may be having an impact on erect-crested 
penguin colonies (Taylor 2000, p. 66; Ellis et al. 2007, p. 6). The 
primary basis for this inference comes from studies of a closely-
related species, the southern rockhopper penguin at Campbell Island 
(Cunningham and Moors 1994, p. 27), where the population declined by 94 
percent between the early 1940s and 1985 from an estimated 800,000 
breeding pairs to 51,500 (Cunningham and Moors 1994, p. 34). The 
majority of this decline appears to have coincided with a period of 
warmed sea surface temperatures between 1946 and 1956. It is widely 
inferred that warmer waters most likely affected southern rockhopper 
penguins through changes in the abundance, availability, and 
distribution of their food supply (Cunningham and Moors 1994, p. 34); 
recent research suggested they may have had to work harder to find the 
same food (Thompson and Sagar 2002, p. 11).
    The suggestion that erect-crested penguins may have been similarly 
impacted by changes in the marine habitat during this time period is 
strengthened by the fact that erect-crested penguin breeding colonies 
are now absent from Campbell Island (Ellis et al. 2007, p. 6); they 
disappeared from the island during the same time period (1940s to 1987) 
as the southern rockhopper decline. In the 1940s, a few hundred erect-
crested penguins bred on the island (Taylor 2000, p. 65). The latest 
IUCN assessment of the erect-crested penguin found that oceanic warming 
is a continuing threat that is resulting in a ``very rapid decline'' in 
greater than 90 percent of the population, and is therefore a threat of 
high impact to the erect-crested penguin (BirdLife International 2007, 
p. 2 of `additional data'). Therefore, based on the best available 
information, we find that the present or threatened destruction, 
modification, or curtailment of the erect-crested penguin's marine 
habitat is a threat to the species throughout all its range now and in 
the foreseeable future.

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

    Aside from periodic surveys and the possibility of a future 
research program focused on the diet and foraging of the species, we 
are unaware of any purpose for which the erect-crested penguin is 
currently being utilized. Therefore, we conclude that overutilization 
for commercial, recreational, scientific, or educational purposes is 
not a threat to this species in any portion of its range.

Factor C. Disease or Predation

    Avian disease has not been recorded in erect-crested penguins, 
although disease vectors of ticks and bird fleas are found in colonies 
(Taylor 2000, p. 66).
    The only known mammalian predators within the current range of the 
erect-crested penguin are mice, which are present only on the main 
Antipodes Island. Although their eradication from this island is 
recommended as a future management action in the Action Plan for 
Seabird Conservation in New Zealand, we have found no reference to 
these mice being a threat to the erect-crested penguins on this one 
island in their range (Taylor 2000, p. 67). At the other islands in the 
Antipodes group (Bollons, Archway, and Disappointment) and at the 
Bounty Islands, mammalian predators are not present. Feral cats, sheep, 
and cattle are also no longer present (Taylor 2000, p. 66). The threat 
of future introduction of invasive species is being managed by the New 
Zealand DOC, which has measures in place for quarantine of researchers 
working on sub-Antarctic islands (West 2005, p. 36). These quarantine 
measures are an important step toward controlling the introduction of 
invasive species. At this time, however, we have no means to measure 
their effectiveness.
    On the basis of this information, we find that neither disease nor 
predation is a threat to the erect-crested penguin in any portion of 
its range.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    All breeding islands of the erect-crested penguin are protected by 
New Zealand as National Nature Reserves. The marine areas are managed 
under fisheries legislation (World Heritage Committee Report 1998, p. 
21).
    The Action Plan for Seabird Conservation in New Zealand is in place 
and outlines previous conservation actions, future management actions 
needed, future survey and monitoring needs, and research priorities. 
Among the most relevant recommendations are pest quarantine measures to 
keep new animal and plant pest species from reaching offshore islands 
and eradication of mice from the main Antipodes Island (Taylor 2000, p. 
67). At least one of these recommendations has been put into place; as 
mentioned under Factor C, strict required quarantine measures are now 
in place for researchers and expeditions to all New Zealand sub-
Antarctic islands to prevent the introduction or re-introduction of 
animal and plant pest species (West 2005, p. 36). At this time, we have 
no means to measure the effectiveness of these quarantine measures.
    In addition to national protection, all of New Zealand sub-
Antarctic islands are inscribed on the World Heritage List (World 
Heritage List 2008, p. 16). World Heritage designation places an 
obligation on New Zealand to ``take appropriate legal, scientific, 
technical, administrative and financial measures, necessary for the 
identification, protection, conservation, presentation and 
rehabilitation of this heritage'' (World Heritage Convention 1972, p. 
3). At the time of inscription of this site onto the World Heritage 
List in 1998, human impacts were described as ``limited to the effects 
of introduced species at Auckland and Campbell Islands'' (World 
Heritage Convention Nomination Documentation 1998, p. 1).
    New Zealand has in place The New Zealand Marine Oil Spill Response 
Strategy, which provides the overall framework to mount a response to 
marine oil spills that occur within New Zealand's area of 
responsibility. The aim of the strategy is to minimize the effects of 
oil on the environment and people's safety and health. The National Oil 
Spill Contingency Plan promotes a planned and nationally coordinated 
response to any marine oil spill that is beyond the capability of a 
local regional council or outside the region of any local council 
(Maritime New Zealand 2007, p. 1). As discussed below under Factor E, 
rapid containment of spills in remote areas and effective triage 
response under this plan have shown these to be effective regulatory 
mechanisms (New Zealand Wildlife Health Center 2007, p. 2; Taylor 2000, 
p. 94).
    On the basis of national and international protections in place, we 
find that inadequacy of existing regulatory mechanisms is not a threat 
to the erect-crested penguin in any portion of its range.

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

    New Zealand's Action Plan for Conservation of Seabirds notes that, 
while there is a possibility that erect-crested penguins could be 
caught in trawl nets or by other fishing activity, there are no records 
of such (Taylor 2000, p. 66). The IUCN noted that the New Zealand DOC 
has limited legal powers to control commercial harvesting in waters 
around the sub-Antarctic islands and recommended

[[Page 77329]]

that the New Zealand Ministry of Fisheries should be encouraged to 
address fisheries bycatch and squid fishery impacts (World Heritage 
Nomination--IUCN Technical Evaluation 1998, p. 25). As noted in the 
discussion under Factor A, the Action Plan for Conservation of New 
Zealand Seabirds outlines research efforts that would provide more data 
on the diet and activities and distribution of erect-crested penguins 
at sea. Such research will assist in evaluating whether competition for 
prey with fisheries or bycatch from fisheries activities is a factor in 
declines of the erect-crested penguin. However, in the absence of such 
research results, we have found no evidence that erect-crested penguins 
are subject to fisheries bycatch.
    A large proportion of erect-crested penguin populations are found 
on two isolated, but widely separated, island archipelagos during the 
breeding season. We have examined the possibility that oil and chemical 
spills may impact erect-crested penguins. Such spills, should they 
occur and not be effectively managed, can have direct effects on marine 
seabirds. As a gregarious colonial nesting species, erect-crested 
penguins are potentially susceptible to mortality from local oil spill 
events during the breeding season. A significant spill at either the 
Antipodes or Bounty Islands could jeopardize more than one-third of the 
population of this species. The non-breeding season distribution of 
erect-crested penguins is not well-documented, but there is the 
potential for birds to encounter spills within the immediate region of 
colonies or, if they disperse more widely, elsewhere in the marine 
environment.
    Based on previous incidents of oil and chemical spills around New 
Zealand, we evaluated this as a potential threat to this species. For 
example, in March 2000, the fishing vessel Seafresh 1 sank in Hanson 
Bay on the east coast of Chatham Island and released 66 T (60 t) of 
diesel fuel. Rapid containment of the oil at this very remote location 
prevented any wildlife casualties (New Zealand Wildlife Health Center 
2007, p. 2). The same source reported that in 1998 the fishing vessel 
Don Wong 529 ran aground at Breaksea Islets, off Stewart Island, 
outside the range of the erect-crested penguin. Approximately 331 T 
(300 t) of marine diesel was spilled along with smaller amounts of 
lubricating and waste oils. With favorable weather conditions and 
establishment of triage response, no casualties of the pollution event 
were discovered (Taylor 2000, p. 94). However, the potential threat of 
oil or chemical spills to the erect-crested penguin is mitigated by New 
Zealand's oil spill response and contingency plans, which have been 
shown to be effective in previous events even at remote locations, and 
by the remoteness of Antipodes and Bounty Islands from major shipping 
routes or shipping activity. While the 138 mi (221 km) distance between 
the two primary breeding areas reduces the likelihood of impacts 
affecting the entire population, the limited number of breeding areas 
is a concern relative to the potential of oil spills or other 
catastrophic events. On the basis of the best available information we 
find that oil and chemical spills are not a threat to the erect-crested 
penguin in any portion of its range.
    On the basis of our analysis, we find that other natural or manmade 
factors are not a threat to the erect-crested penguin in any portion of 
its range.

Foreseeable Future

    The term ``threatened species'' means any species (or subspecies 
or, for vertebrates, distinct population segments) that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act does not define the 
term ``foreseeable future.'' For the purpose of this proposed rule, we 
define the ``foreseeable future'' to be the extent to which, given the 
amount and substance of available data, we can anticipate events or 
effects, or reliably extrapolate threat trends, such that we reasonably 
believe that reliable predictions can be made concerning the future as 
it relates to the status of the species at issue.
    In considering the foreseeable future as it relates to the status 
of the erect-crested penguin, we considered the threats acting on the 
species, as well as population trends. We considered the historical 
data to identify any relevant existing trends that might allow for 
reliable prediction of the future (in the form of extrapolating the 
trends).
    With respect to the erect-crested penguin, the most recent detailed 
information, from a decade ago, indicated populations were in decline, 
with more recent qualitative information suggesting that declines 
continue. Although this qualitative data is currently the best 
information available, its use in establishing a reliable population 
trend is limited. Therefore, we are specifically requesting the public 
to provide any updated information available on current population 
numbers or trends for this species. This will help ensure that any 
final Service action related to this species will be as accurate as 
possible.
    As characterized in our analysis of threat factors above, the 
erect-crested penguin is at risk throughout its range by ongoing 
changes to its marine habitat. At this time, managers can monitor 
impacts of this threat but have no management tools to reduce the 
threat. Therefore, it is reasonably likely that this threat will 
continue in the future. Based on our analysis of the best available 
information, we have no reason to believe that population trends will 
change in the future, nor that the effects of current threats acting on 
the species will be ameliorated in the foreseeable future.

Erect-Crested Penguin Finding

    Significant declines in numbers have been documented for the erect-
crested penguin between 1978 and 1997 at their two primary breeding 
grounds on the Bounty and Antipodes Islands. The latest population 
estimates from the late 1990s indicated there were approximately 81,000 
pairs of erect-crested penguins in these two primary breeding grounds. 
The declines are reported to be largest at Bounty Island, although the 
extent of the decline is uncertain due to the differing methodologies 
between the surveys conducted there in 1978 and those conducted in 
1997-98. At the Antipodes Islands, declines of from 50 to 58 percent 
have been estimated between 1978 and 1995, with photographic evidence 
from those two years showing obvious contraction in colony areas at 
some sites (Taylor 2000, p.65). Formal surveys have not been conducted 
since the 1995 and 1997-98 surveys referenced above, for the Antipodes 
and Bounty Islands, respectively. The only further information for this 
primary portion of the range is qualitative photographic evidence and 
observations suggesting that declines continue.
    We have no recent population assessments for the erect-crested 
penguin. The most recent detailed information, from a decade ago, 
indicated populations were in decline with more recent qualitative 
information suggesting declines continue. Despite the relatively high 
population numbers of this species estimated in 1998, the population 
numbers at the time showed a very high rate of decline. This species' 
breeding colonies have been reduced to only two breeding island groups, 
separated from one another by 138 mi (221 km). Lower population numbers 
reasonably likely to occur in the foreseeable future, combined with the 
limited number of breeding areas, would make this species

[[Page 77330]]

even more vulnerable to the threats from changes in the marine habitat, 
and would make the species vulnerable to potential impacts from oil 
spills and random catastrophic events. Therefore, on the basis of our 
analysis of the best available scientific and commercial information, 
we conclude that the erect-crested penguin is likely to become 
endangered with extinction throughout all of its range in the 
foreseeable future.

Significant Portion of the Range Analysis

    Having determined that the erect-crested penguin is likely to 
become endangered with extinction in the foreseeable future throughout 
all of its range, we must next consider whether there are any 
significant portions of its range which warrant further consideration 
as to whether the species is endangered. See our analysis for the 
yellow-eyed penguin for how we make this determination.
    Erect-crested penguins breed on two primary island groups, Bounty 
and Antipodes Islands, which lie about 138 mi (221 km) from one another 
in the South Pacific Ocean to the southwest of the South Island of New 
Zealand. The erect-crested penguin is documented as in decline at these 
two islands. Our rangewide threats analysis found that changes in the 
marine habitat--slight warming of sea surface temperatures and their 
possible impact on prey availability--have the same impact on the two 
areas. No information is available that suggests this threat is 
disproportionate between these two areas. The overall population number 
of the erect-crested penguins is not low--27,956 pairs at Bounty Island 
and 49,000 to 57,000 pairs at the Antipodes Islands. Although the 
population numbers have declined at a very high rate and appear to be 
continuing to decline, the most recent population estimates indicate 
that the populations of both island groups are not currently in danger 
of extinction.
    As a result, while the best scientific and commercial data allows 
us to make a determination as to the rangewide status of the erect-
crested penguin, we have determined that there are no significant 
portions of the range in which the species is currently in danger of 
extinction. Because we find that the erect-crested penguin is not 
currently in danger of extinction in these two portions of its range, 
we need not address the question of significance for these populations.
    Therefore, we propose to list the erect-crested penguin as a 
threatened species throughout all of its range under the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, requirements for Federal 
protection, and prohibitions against certain practices. Recognition 
through listing results in public awareness, and encourages and results 
in conservation actions by Federal governments, private agencies and 
groups, and individuals.
    Section 7(a) of the Act, as amended, and as implemented by 
regulations at 50 CFR part 402, requires Federal agencies to evaluate 
their actions within the United States or on the high seas with respect 
to any species that is proposed or listed as endangered or threatened, 
and with respect to its critical habitat, if any is being designated. 
However, given that the yellow-eyed penguin, white-flippered penguin, 
Fiordland crested penguin, Humboldt penguin, and erect-crested penguin 
are not native to the United States, critical habitat is not being 
designated for these species under section 4 of the Act.
    Section 8(a) of the Act authorizes limited financial assistance for 
the development and management of programs that the Secretary of the 
Interior determines to be necessary or useful for the conservation of 
endangered and threatened species in foreign countries. Sections 8(b) 
and 8(c) of the Act authorize the Secretary to encourage conservation 
programs for foreign endangered species and to provide assistance for 
such programs in the form of personnel and the training of personnel.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered and 
threatened wildlife. As such, these prohibitions would be applicable to 
yellow-eyed penguin, white-flippered penguin, Fiordland crested 
penguin, Humboldt penguin, and erect-crested penguin. These 
prohibitions, under 50 CFR 17.21, make it illegal for any person 
subject to the jurisdiction of the United States to ``take'' (take 
includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
collect, or to attempt any of these) within the United States or upon 
the high seas, import or export, deliver, receive, carry, transport, or 
ship in interstate or foreign commerce in the course of a commercial 
activity, or to sell or offer for sale in interstate or foreign 
commerce, any endangered wildlife species. It also is illegal to 
possess, sell, deliver, carry, transport, or ship any such wildlife 
that has been taken in violation of the Act. Certain exceptions apply 
to agents of the Service and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.22 for endangered species, and at 17.32 for threatened species. With 
regard to endangered wildlife, a permit must 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.

Peer Review

    In accordance with our joint policy with National Marine Fisheries 
Service, ``Notice of Interagency Cooperative Policy for Peer Review in 
Endangered Species Act Activities,'' published in the Federal Register 
on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at 
least three appropriate independent specialists regarding this proposed 
rule. The purpose of peer review is to ensure that our proposed rule is 
based on scientifically sound data, assumptions, and analyses. We will 
send copies of this proposed rule to the peer reviewers immediately 
following publication in the Federal Register. We will invite these 
peer reviewers to comment during the public comment period, on our 
specific assumptions and conclusions regarding this proposed rule.
    We will consider all comments and information we receive during the 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, our final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if we receive any requests for hearings. We must receive your request 
for a public hearing within 45 days after the date of this Federal 
Register publication (see DATES). Such requests must be made in writing 
and be addressed to the Chief of the Division of Scientific Authority 
at the address shown in the FOR FURTHER INFORMATION CONTACT section. We 
will schedule public hearings on this proposal, if any are requested, 
and announce the dates, times, and places of those hearings, as well as 
how to obtain reasonable accommodations, in the Federal Register at 
least 15 days before the first hearing.

[[Page 77331]]

Required Determinations

Regulatory Planning and Review (Executive Order 12866)

    The Office of Management and Budget has determined that this rule 
is not significant under Executive Order 12866.

National Environmental Policy Act (NEPA)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations adopted under section 4(a) of 
the Act. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244).

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988, and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

References Cited

    A complete list of all references cited in this proposed rule is 
available on the Internet at http://www.regulations.gov or upon request 
from the Division of Scientific Authority, U.S. Fish and Wildlife 
Service (see FOR FURTHER INFORMATION CONTACT).

Author

    The authors of this proposed rule are staff of the Division of 
Scientific Authority, U.S. Fish and Wildlife Service (see FOR FURTHER 
INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec.  17.11(h) by adding new entries for ``Penguin, Erect-
crested,'' ``Penguin, Fiordland crested,'' ``Penguin, Humboldt,'' 
``Penguin, White-flippered,'' and ``Penguin, Yellow-eyed'' in 
alphabetical order under BIRDS to the List of Endangered and Threatened 
Wildlife as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Birds
 
                                                                      * * * * * * *
Penguin, erect-crested...........  Eudyptes sclateri ..  New Zealand, Bounty  Entire.............  T               ...........           NA           NA
                                                          Islands and
                                                          Antipodes Islands.
Penguin, Fiordland crested.......  Eudyptes              New Zealand, South   Entire.............  T               ...........           NA           NA
                                    pachyrhynchus.        Island and
                                                          offshore islands.
 
                                                                      * * * * * * *
Penguin, Humboldt................  Spheniscus humboldti  Eastern Pacific      Entire.............  T               ...........           NA           NA
                                                          Ocean--Chile, Peru.
Penguin, white-flippered.........  Eudyptula minor       New Zealand, South   Entire.............  T               ...........           NA           NA
                                    albosignata.          Island.
Penguin, yellow-eyed.............  Megadyptes antipodes  New Zealand, South   Entire.............  T               ...........           NA           NA
                                                          Island and
                                                          offshore islands.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 77332]]

* * * * *

    Dated: December 2, 2008.
H. Dale Hall,
Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-29670 Filed 12-17-08; 8:45 am]
BILLING CODE 4310-55-P