[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Proposed Rules]
[Pages 310-316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31215]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R9-ES-2009-0089]
[90100-1660-1FLA]
[RIN 1018-AW70]


Endangered and Threatened Wildlife and Plants; Withdrawal of 
Proposed Rule to List Cook's Petrel

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; withdrawal.

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SUMMARY: We, the U.S. Fish and Wildlife Service, withdraw our December 
17, 2007, proposal (72 FR 71298) to list the Cook's petrel (Pterodroma 
cookii) as a threatened species under the Endangered Species Act of 
1973, as amended. Based on a thorough review of the best available 
scientific data, we do not believe this species is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.

DATES:  The December 17, 2007 (72 FR 71298), proposal to list the 
Cook's petrel as a threatened species is withdrawn as of January 5, 
2010.

ADDRESSES: Comments and materials we receive, as well as supporting 
information used in the preparation of this document, are available for 
public inspection, by appointment, during normal business hours, Monday 
through Friday, at the U.S. Fish and Wildlife Service, 4401 N. Fairfax 
Drive, Suite 110, Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT: Douglas Krofta, Chief, Branch of 
Listing, Endangered Species, U.S. Fish and Wildlife Service, 4401 North 
Fairfax Drive, Room 420, Arlington, VA 22203; telephone 703-358-2105. 
If you use a telecommunications device for the deaf (TDD), call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    The Cook's petrel (Pterodroma cookii) is a small, grey and white 
gadfly petrel that is endemic to the New Zealand archipelago (del Hoyo 
et al. 1992, p. 11; Rayner et al. 2007b, p. 59; Birdlife International 
(BLI) 2009, unpaginated). Its darker grey wings show an ``M'' in 
flight. It is distinguished from other petrels by a whiter underwing 
(BLI 2009, unpaginated). The species was first taxonomically described 
by Gray in 1843 (Sibley and Monroe 1990, p. 322).
    The New Zealand archipelago comprises two main islands, the North 
and South islands, and numerous smaller islands. The total land area of 
the archipelago covers 103,363 square miles (mi\2\) (267,710 square 
kilometers (km\2\)) (CIA 2009, unpaginated). Birds migrate to the east 
Pacific Ocean, mainly between 34 degrees south ([deg]S) and 30 degrees 
north ([deg]N) (Heather and Robertson 1997, as cited in BLI 2009, 
unpaginated).
    The species' diet consists primarily of cephalopods, fish, 
crustaceans, and bioluminescent tunicates that can be hunted at night 
(Imber 1996, p. 189). It breeds in burrows on forested ridges and steep 
slopes. Ideal breeding habitat is unmodified forests close to ridge 
tops with a low and open canopy and many large stems (Marchant and 
Higgins 1990, as cited in BLI 2009, unpaginated; Rayner et al. 2007b, 
p. 59; Rayner et al. 2007c, p. 243; Rayner et al. 2007, as cited in BLI 
2009). Historically, Cook's petrels were harvested in large numbers as 
a food source by native Moriori (Oliver 1955, p. 10).
    Although the Cook's petrel was once considered a dominant species 
on these New Zealand islands, the species' breeding and nesting 
activities are now restricted to islands at the northern and southern 
limits of its former breeding range, including Great Barrier (Aotea), 
Little Barrier (Hauturu), and Codfish (Whenua Hou) islands (del Hoyo et 
al. 1992, p. 15).
    BLI (2009, unpaginated) estimates the range of the Cook's petrel to 
be 124 mi\2\ (320 km\2\). However, BLI (2000, pp. 22, 27) defines 
``range'' as the ``Extent of Occurrence, the area contained within the 
shortest continuous imaginary boundary which can be drawn to encompass 
all the known, inferred, or projected sites of present occurrence of a 
species, excluding cases of vagrancy.'' Therefore, this reported range 
includes a large area of nonbreeding habitat (i.e., the sea).
    The population of the Cook's petrel on Little Barrier Island was 
thought to be about 50,000 pairs (BLI 2007, unpaginated). Using GIS 
(Geographic Information System) technology, Rayner et al. (2007c, pp. 
241-242) and Rayner (2008, in litt.) determined that the population is 
approximately 286,000 pairs. The population on Codfish Island is 
approximately 5,000 breeding pairs (Rayner 2008, in litt.). In 2006, 
the Great Barrier Island population was considered to be in danger of 
extirpation because only four nest burrows had been located in recent 
years, and it was estimated that fewer than 20 pairs continued to breed 
on the island. However, the populations on Little Barrier and Codfish 
islands are increasing following predator eradications (Rayner 2008, in 
litt.; BLI 2009, unpaginated). The minimum world population for Cook's 
petrel is estimated to be approximately 1,300,000 individuals, with an 
increasing population trend (Rayner et al. 2007c, p. 245; Rayner 2008, 
in litt.; BLI 2009, unpaginated).

Previous Federal Actions

    On November 28, 1980, we received a petition (1980 petition) from 
Dr. Warren B. King, Chairman of the International Council for Bird 
Preservation (ICBP), to add 60 foreign bird species to the List of 
Endangered and Threatened Wildlife (50 CFR 17.11(h)), including Cook's 
petrel. Two of the foreign species identified in the

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petition were already listed under the Endangered Species Act of 1973, 
as amended (16 U.S.C. 1531 et seq.); therefore, in response to the 1980 
petition, we published a substantial 90-day finding on May 12, 1981 (46 
FR 26464), for 58 foreign species and initiated a status review. On 
January 20, 1984 (49 FR 2485), we published a 12-month finding within 
an annual review on pending petitions and description of progress on 
all pending petition findings. In that notice, we found that all 58 
foreign bird species from the 1980 petition were warranted but 
precluded by higher priority listing actions. On May 10, 1985, we 
published the first annual notice (50 FR 19761) in which we continued 
to find that listing all 58 foreign bird species from the 1980 petition 
was warranted but precluded. We published additional annual notices on 
the 58 species included in the 1980 petition on January 9, 1986 (51 FR 
996), July 7, 1988 (53 FR 25511), December 29, 1988 (53 FR 52746), 
April 25, 1990 (55 FR 17475), November 21, 1991 (56 FR 58664), and May 
21, 2004 (69 FR 29354).
    On May 6, 1991, we received a petition (1991 petition) from ICBP to 
add an additional 53 species of foreign birds to the List of Endangered 
and Threatened Wildlife. The 1991 petition also confirmed the 1980 
petition's request to add Cook's petrel to the List of Endangered and 
Threatened Wildlife.
    Per the Service's listing priority guidelines (September 21, 1983; 
48 FR 43098), in our April 23, 2007, Annual Notice on Resubmitted 
Petition Findings for Foreign Species (72 FR 20184), we determined that 
listing six seabird species of the family Procellariidae, including 
Cook's petrel, was warranted. In selecting these six species from the 
list of warranted-but-precluded species, we took into consideration the 
magnitude and immediacy of the threats to the species, consistent with 
the Service's listing priority guidelines.
    On December 17, 2007 (72 FR 71298), we published in the Federal 
Register a proposal to list the Chatham petrel, Fiji petrel, and the 
magenta petrel as endangered under the Act, and the Cook's petrel, 
Galapagos petrel, and the Heinroth's shearwater as threatened under the 
Act. We implemented the Service's peer review process and opened a 60-
day comment period to solicit scientific and commercial information on 
the species from all interested parties following publication of the 
proposed rule.
    On December 30, 2008, the Service received a 60-day notice of 
intent to sue from the Center for Biological Diversity (CBD) over 
violations of section 4 of the Act and the Administrative Procedure Act 
(APA) for the Service's failure to issue a final determination 
regarding the listing of these six foreign birds. Under a settlement 
agreement approved by the U.S. District Court for the Northern District 
of California on June 15, 2009 (CBD v. Salazar, 09-cv-02578-CRB), the 
Service must submit to the Federal Register final determinations on the 
proposed listings of the Chatham petrel, Fiji petrel, and magenta 
petrel by September 30, 2009, and final determinations on the proposed 
listings of the Cook's petrel, Galapagos petrel, and Heinroth's 
shearwater by December 29, 2009.
    We listed the Chatham petrel, Fiji petrel, and magenta petrel as 
endangered in a final rule published on September 14, 2009 (74 FR 
46914). We are listing the Galapagos petrel and Heinroth's shearwater 
in a final rule published in the Rules and Regulations section of 
today's Federal Register. This document addresses only the Cook's 
petrel.

Summary of Comments and Recommendations

    In the proposed rule published on December 17, 2007 (72 FR 71298), 
we requested that all interested parties submit information that might 
contribute to development of a final rule. We received nine comments 
addressing the proposed listing of the six Procellariid species: six 
from members of the public, one from an international conservation 
organization, one from the U.S. National Marine Fisheries Service 
(NMFS), and one from the New Zealand Department of Conservation 
(NZDOC). In all, four commenters supported the proposed listings. Five 
commenters provided information but did not express support or 
opposition to the proposed listings. We address the comments we 
received below.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from 14 knowledgeable individuals 
with scientific expertise that included familiarity with the six 
Procellariid species, the geographic region in which the six species 
occur, and conservation biology principles. We received a response from 
six of the peer reviewers from whom we requested comments. The peer 
reviewers generally agreed that the description of the biology and 
habitat for each species was accurate and based on the best available 
information. New or additional information on the current population 
numbers for the Cook's petrel and threats to the species was provided 
and incorporated into this determination as appropriate (as indicated 
in the citations by ``in litt.'').

Peer Review Comments

    Comment 1: Provide the taxonomic list(s) of birds used to identify 
the six species.
    Our Response: We have added information on taxonomy of the Cook's 
petrel to this determination.
    Comment 2: One peer reviewer disagreed with our conclusion in the 
proposed rule that there was a likelihood of extinction for Cook's 
petrel within the foreseeable future. The peer reviewer provided us 
with new information on the population levels and threats to this 
species.
    Our Response: Based on this new information (which is discussed 
above in the Background section of this document), we have reexamined 
our proposal to list the Cook's petrel (Pterodroma cookii) as a 
threatened species, and we are withdrawing our proposal to list this 
species under the Act. We concur with the peer reviewer and do not 
believe this species is likely to become an endangered species within 
the foreseeable future throughout all, or a significant portion, of its 
range.

Other Comments

    Comment 3: Listing under the Act provides substantial benefits to 
foreign species, such as drawing attention to their needs and providing 
much-needed funding and expertise to address the significant threats 
they face.
    Our Response: We agree that listing a foreign species under the Act 
provides benefits to the species in the form of conservation measures, 
such as recognition, requirements for Federal protection, and 
prohibitions against certain practices. However, we did not find any 
threats of such magnitude to warrant listing of this species. In 
addition, we found evidence of active support for the conservation of 
this species, which has contributed to the increasing population.
    Comment 4: We would encourage the U.S. Fish and Wildlife Service to 
carefully consider how listing these species under the Act will benefit 
their conservation. Would listing under the Act prompt U.S.-based 
actions that the species would otherwise not receive?
    Our Response: As part of the conservation measures provided to 
foreign species listed under the Act, recognition through listing 
results in public awareness and encourages and results in conservation 
actions by

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Federal and State governments, private agencies and groups, and 
individuals. In addition, section 8(a) of the Act authorizes the 
provision of 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 and threatened species and to provide assistance for 
such programs in the form of personnel and the training of personnel.
    Comment 5: The general statement that the ``long-line fishery...is 
the single greatest threat to all seabirds'' erroneously indicates 
long-line fishing as a threat to all seabirds. The main species of 
seabirds killed in long-line fisheries are albatrosses and other 
species of petrels (not Pterodroma species). The characteristics of a 
petrel species vulnerable to long-line fishing (seabird that is 
aggressive and good at seizing prey, or baited hooks, at the water's 
surface, or is a proficient diver) do not describe the five Pterodroma 
species or the Heinroth's shearwater that are proposed for listing 
under the Act. Fisheries by catch has not been identified as a key 
threat for any of these species; thus it is inaccurate to characterize 
long-line fishing as a threat to these species or to all seabird 
species.
    Our Response: We received several comments disputing our statement 
that long-line fisheries threaten all seabirds and Cook's petrel, 
Galapagos petrel, and the Heinroth's shearwater in particular, and we 
have amended this determination for the Cook's petrel accordingly (see 
the Summary of Factors Affecting the Cook's Petrel section of this 
document).
    Comment 6: The serious threats to the species are impacts from 
extremely small populations, limited breeding locations or foraging 
ranges, loss and degradation of nesting habitat, invasive alien 
species, introduced predators, and hunting.
    Our Response: Although this may be true of the other Procellariid 
species included in the 2007 proposed rule, we are not aware of any 
information that indicates that the Cook's petrel is currently 
threatened by hunting or over collection in New Zealand.
    Comment 7: The primary threats to these species are predation by 
introduced predators and risk at breeding colonies.
    Our Response: Although this may be true of the other Procellariid 
species included in the 2007 proposed rule, we are not aware of any 
information that indicates that the Cook's petrel is currently 
threatened by nonnative predators.

Species Information and Factors Affecting the Species

    Section 4 of the Act, 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. Listing actions may be 
warranted based on any of the above threat factors, singly or in 
combination.

Conservation Status

    Rayner (2008, in litt.) suggested a revision of the conservation 
status of this species, under IUCN criteria, from endangered to 
vulnerable based on the refined population numbers mentioned above and 
discussed below. The IUCN has recently reclassified Cook's petrel from 
``Endangered'' to ``Vulnerable'' based on an increasing population 
trend and habitat (BLI 2009, unpaginated).

Summary of Factors Affecting the Cook's Petrel

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

    The range of this species changes intra-annually based on an 
established breeding cycle. During the breeding season, which appears 
to vary by population (Taylor 2000, p. 135), birds return to colonies 
to breed and nest. During the nonbreeding season, birds migrate far 
from their breeding range where they remain at sea until returning to 
breed. Therefore, our analysis of Factor A is separated into analyses 
of: (1) The species' breeding habitat and range, and (2) the species' 
nonbreeding habitat and range.
    The Cook's petrel breeds on Little Barrier and Great Barrier 
islands in the Hauraki Gulf, northeast of New Zealand's North Island, 
and Codfish Island, west of Stewart Island in southern New Zealand. The 
species breeds on steep slopes near ridge tops at 984 feet (300 meters) 
above sea level or higher and prefers unmodified forest habitat with 
low, open canopies (Rayner et al. 2007b, pp. 65-66). Fire is unlikely 
to be a threat to this species' breeding habitat because Cook's petrels 
primarily breed in damp forests (Imber 1985a, as cited in Taylor 2000, 
p. 135). Breeding burrows are usually long and deep among tree roots 
and are not easily collapsed, so trampling by introduced species is not 
likely to be a threat to Cook's petrel nest sites (Taylor 2000, p. 
135).
    According to the best available information, a large amount of 
suitable habitat is available to the Cook's petrel on the three islands 
where it breeds (Rayner et al. 2007b, p. 59; Rayner 2008, in litt.). Of 
these islands, the largest, the Great Barrier Island covering 110 mi\2\ 
(285 km\2\), is the only island that has a permanent human population. 
This small population of 1,100 people is located primarily within 
coastal settlements, away from the species' breeding habitat. 
Inhabitants mostly make a living from farming and the tourist industry, 
but the island is not considered a major tourist destination due to its 
relative remoteness (Wikipedia 2007a, unpaginated). There is no 
indication that the Cook's petrel's breeding habitat on Great Barrier 
Island is threatened with human-induced habitat destruction or 
modification.
    The other two islands, Little Barrier and Codfish islands, covering 
11 and 9 mi\2\ (28 km\2\ and 23 km\2\), respectively, are wildlife 
sanctuaries with restricted access. These islands are not inhabited by 
humans aside from rotational conservation staff (Wikipedia 2007a and b, 
unpaginated). Therefore, the Cook's petrel's breeding habitat on these 
islands is not threatened with human-induced habitat destruction or 
modification.
    In 2004, the Maungatautari Ecological Island Trust prepared ``An 
Ecological Restoration Plan for Maungatautari,'' which included 
restoration of habitat and the removal of threats to attract or 
reintroduce Cook's petrel, as well as a number of other native species, 
to New Zealand's North Island (McQueen 2004, pp. 13-22). In 2007, the 
Trust finished construction of a 29-mi (47-km) pest-proof fence around 
the forest edge of Maungatautari [Mountain] to allow restoration of 
degraded habitat and reintroduction of native plants and animals that 
were historically known from this area but no longer occur there 
(Maungatautari Ecological Island Trust N.D., unpaginated). 
Reintroduction of Cook's petrel is suggested by McQueen (2004, p. 50) 
following eradication of all

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pest species within the fenced area. There is no information to 
indicate that reintroduction efforts have begun for this species at 
Maungatautari. However, if successful, this effort would expand the 
current breeding range of the species.
    During the nonbreeding season, the Cook's petrel migrates to the 
east Pacific Ocean, primarily between 34 [deg]S and 30 [deg]N (Heather 
and Robertson 1997, as cited in BLI 2009, unpaginated). We are unaware 
of any present or threatened destruction, modification, or curtailment 
of this species' current sea habitat or range.

Summary of Factor A

    We are not aware of any scientific or commercial information that 
indicates that the present or threatened destruction, modification, or 
curtailment of the Cook's petrel's habitat or range poses a threat to 
this species. As a result, we do not consider the destruction, 
modification, or curtailment of the species' habitat or range to be a 
contributing factor to the continued existence of the Cook's petrel.

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

    We are unaware of any scientific or commercial information that 
indicates that overutilization of the Cook's petrel for commercial, 
recreational, scientific, or education purposes poses a threat to this 
species. As a result, we do not consider the destruction, modification, 
or curtailment of the species' habitat or range to be a contributing 
factor to the continued existence of the Cook's petrel.

C. Disease or Predation

    Although several diseases have been documented in other species of 
petrels, disease has not been documented in the Cook's petrel. 
Therefore, we have no other information to indicate that disease is a 
threat to Cook's petrel.
    The introduction of predatory species by European settlers is 
believed to have contributed to the historical population decline in 
this species. The best available information indicates that the Codfish 
Island population declined due to predation by rats and the weka, a 
bird native to the North and South islands and introduced to Codfish 
Island (Marchant and Higgins 1990, as cited in BLI 2009, unpaginated). 
In 1934, there were an estimated 20,000 breeding pairs on Codfish 
Island, but weka predation reduced the population to 100 pairs by 1984 
(Bartle et al. 1993, as cited in Taylor 2000, p. 135). On Little 
Barrier and Great Barrier islands, introduced feral cats and the 
Pacific rat reduced Cook's petrel population numbers. However, a 
Pacific rat eradication on Little Barrier Island in 2004 led to a 
tenfold increase in breeding success of Cook's petrel (Rayner et al. 
2007a, p. 20862; Rayner 2008, in litt.). The black rat (Rattus rattus) 
also contributed to the decline on Great Barrier Island (Heather and 
Robertson 1997, Marchant and Higgins 1990, as cited in BLI 2009, 
unpaginated; Taylor 2000, p. 135).
    Due to extensive predator eradication programs implemented by 
NZDOC, by 1980, feral cats had been eradicated from Little Barrier 
Island. By 1985, weka had been eradicated from Codfish Island (Taylor 
2000, p. 135). Rats had been successfully eradicated from Codfish 
Island by 1998, and from Little Barrier Island by 2006 (NZDOC 2006a, 
unpaginated).
    The NZDOC manages Little Barrier Island under the New Zealand 
Conservation Act of 1987 as a nature reserve for many of New Zealand's 
most threatened species as well as other native animals and plants 
(Little Barrier Island Supporters Trust 2007, unpaginated). Access to 
the island is restricted by permit for scientific or conservation 
purposes only, and visitor numbers and movements are strictly 
regulated. Resident NZDOC rangers are responsible for day-to-day 
management and for coordinating research activities and volunteer 
working groups (Little Barrier Island Supporters Trust 2007, 
unpaginated). While there is an ongoing risk that predators, such as 
rats or cats, may be inadvertently reintroduced to the island by boats 
transporting conservation and research groups to the island, we believe 
the risk of these predators becoming reestablished on the island is 
quite low because the NZDOC monitors and manages the island intensively 
to maintain the island as a predator-free habitat. In 2006, Cook's 
petrels were reported to be breeding in record numbers since rats were 
eradicated on Little Barrier Island, and 86 percent of eggs in a 
monitored area hatched with all chicks fledged or about to fledge 
(NZDOC News 2006, unpaginated).
    The NZDOC also manages the 3,459-acre (1,400-hectare) Codfish 
Island Nature Reserve for several threatened species, as well as the 
Cook's petrel (NZDOC 2006b, unpaginated). Access is restricted and by 
permit for scientific or conservation purposes only. In order to 
prevent the inadvertent introduction of pest plants and animals, 
incoming bags and equipment are searched at an on-island quarantine 
facility (Encyclopedia of New Zealand 2007, unpaginated). As stated 
above, while there is an ongoing risk that predators, such as rats or 
cats, may be inadvertently reintroduced to the island by boats 
transporting conservation and research groups to the island, we believe 
the risk of these predators becoming reestablished on the island is 
quite low because the NZDOC monitors and manages the island intensively 
to maintain it as a predator-free habitat.
    Although the introduced predators that threaten Cook's petrels have 
been eradicated from Little Barrier and Codfish Islands, introduced 
predators have not been removed from Great Barrier Island. As a result, 
the Cook's petrel population on Great Barrier Island, which has been 
reduced to 20 breeding pairs, continues to be severely threatened by 
introduced feral cats, the black rat, and the Pacific rat (Marchant and 
Higgins 1990, as cited in BLI 2009, unpaginated; Rayner 2008, in 
litt.), and the risk of extirpation of this species from Great Barrier 
Island is high. In fact, Rayner (2008, in litt.) believes this 
population has long since ceased to be viable and that the small number 
of burrows on Great Barrier Island are due to ongoing recruitment from 
the large population on Little Barrier Island, 1.9 mi (3 km) away.

Summary of Factor C

    We are unaware of any threats to this species from disease 
affecting the continued existence of this species.
    Predators have been successfully eradicated from both Little 
Barrier Island and Codfish Island. There is a current ongoing effort by 
NZDOC to monitor for reintroductions of nonnative plants and animals on 
these islands and immediately eradicate any detected. Therefore, we 
find that introduced predators are not an immediate threat to Cook's 
petrel populations on Little Barrier and Codfish islands. We find that 
introduced predators are a threat to Cook's petrels on Great Barrier 
Island. According to Rayner (2008, in litt.), burrows that have been 
found on Great Barrier Island over the last 25 years are likely due to 
recruitment of birds from nearby Little Barrier Island, and not due to 
the presence of a viable population on Great Barrier Island.
    We are unaware of any threats due to predation on Cook's petrels 
during the nonbreeding season (while the species is at sea) affecting 
the continued existence of this species.
    Therefore, we find that neither disease nor predation is a threat 
to the Cook's petrel on Codfish and Little Barrier islands now or in 
the foreseeable future. Predation is a threat to this species on Great 
Barrier Island, but it is questionable whether these birds comprise a 
viable population.

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D. The Inadequacy of Existing Regulatory Mechanisms

    The Cook's petrel is protected from disturbance and harvest under 
New Zealand's Wildlife Act of 1953 and its Reserves Act of 1977. The 
petrel is designated as a declining species by the NZDOC, which 
signifies the species is not seriously threatened, ``but may become so 
over time if population trends continue on their current trajectory'' 
(Hitchmough et al. 2005, p. 49; Townsend et al. 2008, pp. 10-11). As 
discussed in Factor C above, this species is not threatened by 
predators such as nonnative rats, feral cats, and weka on Codfish and 
Little Barrier islands due to the successful efforts of the NZDOC to 
eradicate and maintain these islands as predator-free. We are not aware 
of any predator eradication efforts in the burrow areas on Great 
Barrier Island, and therefore these birds are threatened by nonnative 
predators. Though currently not classified as a seriously threatened 
species, the NZDOC and other agencies and organizations have 
implemented many actions that directly or indirectly benefit the 
conservation of Cook's petrel. These actions include the removal of all 
predators on two of the three known islands with petrel breeding sites; 
the support of research and other studies on the Cook's petrel to 
better understand its biological and ecological requirements, and the 
reintroduction of Cook's petrel to predator-free sites in its 
historical range (e.g., Maungatautari on the North Island) (McQueen 
2004, pp. 47, 50, 65; NZDOC News 2007, unpaginated; Taylor 2000, p. 
136).

Summary of Factor of D

    The available regulatory protections conferred by the New Zealand 
Wildlife and Reserves acts, in combination with the actions implemented 
for the protection of the Cook's petrel by the NZDOC and other 
organizations and agencies, provide significant protection to this 
species on Codfish and Little Barrier islands. Therefore, we find that 
the inadequacy of existing regulatory mechanisms is not a threat to 
Cook's petrel on Codfish and Little Barrier islands now and in the 
foreseeable future. However, while existing regulatory mechanisms have 
not eliminated the threat from predators on Great Barrier Island, this 
population is not believed to be viable and the presence of birds on 
this island is most likely due to ongoing recruitment from the large 
population on nearby Little Barrier Island.

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

    As previously mentioned, several commenters disputed our statement, 
in our 2007 proposed rule to list six Procellariid species (72 FR 
71298), that long-line fisheries threaten all seabirds and in 
particular, Cook's petrel, Galapagos petrel, and Heinroth's shearwater. 
According to the U.S. National Marine Fisheries Service (Mecum, in 
litt. 2008) and BLI (Small, in litt. 2008), the main seabirds killed in 
long-line fisheries are albatrosses and other species of petrels (not 
Pterodroma species). The characteristics of a petrel species vulnerable 
to long-line fishing (seabird that is aggressive and good at seizing 
prey, or baited hooks, at the water's surface, or is a proficient 
diver) do not describe the five Pterodroma species, including Cook's 
petrel. According to the commenters, fisheries by catch has not been 
identified as a key threat for any of these species (Small, in litt. 
2008; Mecum, in litt. 2008; NZDOC, in litt. 2008, pp. 2-3). Therefore, 
we do not believe that long-line fishing is a significant threat to the 
Cook's petrel.
    In our 2007 proposal (72 FR 71298), we stated that the loss of the 
Cook's petrel population on Great Barrier Island would decrease the 
species' genetic diversity and increase the risk of extinction of this 
species. However, based on information we received during the public 
comment period, we now believe that the population on Great Barrier 
Island is no longer viable and that the small number of burrows on this 
island are due to ongoing recruitment from the large population on 
Little Barrier Island, 1.9 mi (3 km) away (Rayner 2008, in litt.). 
Therefore, the genetic diversity contributed by the Great Barrier 
Island population is likely already extirpated, and there is a low risk 
of extinction of this species due to the loss of the Great Barrier 
Island population because the presence of birds on Great Barrier Island 
is due to recruitment of birds from Little Barrier Island (i.e., 
currently there is not a Great Barrier population), the overall 
population number of the species is quite high (estimated to be 
approximately 1,300,000 individuals), and the populations on Codfish 
and Little Barrier islands are increasing.
    We are unaware of any threats to this species from other natural or 
manmade factors affecting the continued existence of this species.

Summary of Factor E

    The characteristics of a petrel species vulnerable to long-line 
fishing do not describe the Cook's petrel; therefore, we do not believe 
that long-line fishing is a significant threat to the Cook's petrel. 
Since the birds present on Great Barrier Island are believed to be 
mostly from recruitment of birds from Little Barrier Island, we find 
that the Cook's petrel is not threatened by other natural or manmade 
factors affecting the continued existence of the species throughout all 
of its range now or in the foreseeable future.

Significant Portion of the Range

    We now consider whether more immediate threats place this species 
in imminent danger of extinction in any significant portion of the 
species' range. Having determined that this species does not meet the 
definition of threatened or endangered throughout its range, we must 
next consider whether there are any significant portions of its range 
that are in danger of extinction or are likely to become endangered in 
the foreseeable future. On March 16, 2007, a formal opinion was issued 
by the Solicitor of the Department of the Interior, ``The Meaning of In 
Danger of Extinction Throughout All or a Significant Portion of Its 
Range'' (U.S. Department of the Interior 2007). We have summarized our 
interpretation of that opinion and the underlying statutory language 
below.
    A portion of a species' range is significant if it is part of the 
current range of the species and it contributes substantially 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. In other words, in 
considering significance, the Service should ask whether the loss of 
this portion likely would eventually move the species toward 
extinction, but not necessarily to the point where the species should 
be listed as threatened throughout its range.
    The first step in determining whether a species is threatened or 
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 threatened or endangered. To identify only 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 
or likely to

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become so within the foreseeable future. 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 not significant 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.
    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. It is 
likely that the larger size of a population will help contribute to the 
viability of the species overall. Thus, a portion of the range of a 
species may make a meaningful contribution to the resiliency of the 
species if the area is relatively large and contains particularly high-
quality habitat or if its location or characteristics make it less 
susceptible to certain threats than other portions of the range. When 
evaluating whether or how a portion of the range contributes to 
resiliency of the species, it may help to evaluate the historical value 
of the portion and how frequently the portion is used by 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 insures 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.
    The population on Great Barrier Island is approximately 20 breeding 
pairs. Cook's petrels on Great Barrier Island are threatened by 
predation from rats and feral cats; however the available information 
suggests that the population on this island is essentially extirpated. 
Further, based on the best information available, petrels that use 
Great Barrier Island are believed to be birds that are dispersing from 
the other islands; they are not believed to be distinct genetically, 
nor are they believed to be a wholly separate population. On the basis 
that the habitat on Great Barrier Island appears to be of low quality 
and supports feral cats and rats, and because the birds are believed to 
be dispersing from other nearby islands, we believe that the birds and 
the habitat on Great Barrier Island are not significant to the species 
as a whole because they do not contribute significantly to the 
representation, resiliency, or redundancy of the species. Loss of these 
birds and the habitat on Great Barrier Island would not result in a 
meaningful effect on the representation, resiliency, and redundancy of 
the species. There are large, healthy, populations on two other islands 
that are protected, and the NZDOC is translocating birds to other 
protected areas.
    Following an evaluation of the best available information, we 
conclude that the population and the portion of the Cook's petrel range 
on Great Barrier Island is not significant to the taxon and does not 
warrant further consideration as a significant portion of the species' 
range. The population is believed to be locally extirpated, thus 
limiting its overall contribution to the species. The loss of the birds 
on Great Barrier Island would not result in a decrease in the ability 
to conserve the species. Therefore, it is our judgment that the Great 
Barrier Island is not a significant portion of the range for the Cook's 
petrel.

Conclusion and Finding for the Cook's Petrel

    We have carefully assessed the best scientific and commercial data 
available regarding the status of the Cook's petrel and have analyzed 
the five threat factors described in section 4(a)(1) of the Act. We 
find, based on the best available scientific data, that there is not 
sufficient information to justify the earlier proposed rule to list the 
Cook's petrel as threatened. In our December 2007 proposal (72 FR 
71298), we determined that the Cook's petrel was threatened by 
predation from nonnative feral cats and rats within its breeding range 
on Little Barrier, Great Barrier, and Codfish islands. However, based 
on information we received during the proposal's public comment period, 
including information from the NZDOC, one peer reviewer, and one member 
of the public, we believe that introduced predators are not an 
immediate threat to Cook's petrel on Codfish and Little Barrier islands 
for the reasons discussed above (see Factor C). The overall population 
number of the Cook's petrel is not as low as previously thought, and 
the two viable populations of this species, Little Barrier Island and 
Codfish Island, with 286,000 and 5,000 pairs, respectively, are 
reported to be increasing (Rayner et al. 2007c, pp. 235, 245; Rayner 
2008, in litt.; BLI 2009, unpaginated).
    In conclusion, while the NZDOC classified this species as 
``declining,'' and thus of lower priority for conservation, the NZDOC 
intensively manages both Little Barrier Island and Codfish Island for 
the conservation of native species, including the Cook's petrel. 
Nonnative predators have been removed from these islands, access is 
restricted, and monitoring for new introductions of predators is 
ongoing. Habitat restoration efforts are also ongoing. In addition, 
there are plans to translocate Cook's petrels to additional, 
appropriate, predator-free sites (NZDOC News 2007, unpaginated; Rayner 
2008, in litt.). All of these actions are evidence of active support 
for the conservation of this species, even though the overall 
population number is not low.
    We believe the population of Cook's petrel is likely to be 
increasing now and is likely to do so into the foreseeable future 
throughout all or a significant portion of its range due to the 
eradication of predators from Little Barrier Island and Codfish Island 
which contain viable populations of this species, and the translocation 
of birds to additional predator-free sites. Therefore, we do not 
believe Cook's petrel is likely to become an endangered species within

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the foreseeable future throughout all or a significant portion of its 
range.

Withdrawal of Proposal to List Cook's Petrel

    Based on the information discussed above, we withdraw our December 
17, 2007 (72 FR 71298), proposal to list the Cook's petrel as a 
threatened species under the Act.

References Cited

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

Author

    The primary authors of this final rule are staff members of the 
Branch of Listing, Endangered Species, U.S. Fish and Wildlife Service.

    Dated: December 28, 2009
Robyn Thorson,
Acting Director, Fish and Wildlife Service
[FR Doc. E9-31215 Filed 1-4-10; 8:45 am]
BILLING CODE 4310-55-S