[Federal Register Volume 75, Number 110 (Wednesday, June 9, 2010)]
[Proposed Rules]
[Pages 32728-32734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13779]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2010-0035]
[MO-92210-0-0008-B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List van Rossem's Gull-billed Tern as Endangered or 
Threatened.

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding and initiation of status review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list van Rossem's gull-billed tern 
(Gelochelidon nilotica vanrossemi) as an endangered or threatened 
species under the Endangered Species Act of 1973, as amended (Act), and 
to designate critical habitat. Based on our review, we find the 
petition provides substantial scientific or commercial information 
indicating that listing this subspecies may be warranted. Therefore, 
with the publication of this notice, we are initiating a review of the 
status of the subspecies to determine if listing is warranted. To 
ensure that this status review is comprehensive, we are requesting 
scientific and commercial data and other information regarding this 
subspecies. Based on the status review, we will issue a 12-month 
finding on the petition, which will address whether the petitioned 
action is warranted, as provided in section 4(b)(3)(B) of the Act.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before August 9, 2010. Please note 
that if you are using the Federal eRulemaking Portal (see ADDRESSES 
section, below) the deadline for submitting an electronic comment is 
11:59 p.m. Eastern Daylight Savings Time on this date.
    After August 9, 2010, you must submit information directly to the 
Field Office (see the FOR FURTHER INFORMATION CONTACT section below). 
Please note that we may not be able to address or incorporate 
information that we receive after the above requested date.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. In 
the box that reads ``Enter Keyword or ID,'' enter the Docket number for 
this finding, which is FWS-R8-ES-2010-0035. Check the box that reads 
``Open for Comment/Submission,'' and then click the Search button. You 
should then see an icon that reads ``Submit a Comment.'' Please ensure 
that you have found the correct rulemaking before submitting your 
comment.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R8-ES-2010-0035; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all information received on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Request for Information 
section below for more details).

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, 
California 92011; by telephone at 760-431-9440; or by facsimile to 760-
431-9624. If you use a telecommunications device for the deaf (TDD) may 
call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

[[Page 32729]]

Request for Information

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly review the status of the species (status review). 
For the status review to be complete and based on the best available 
scientific and commercial information, we request information on van 
Rossem's gull-billed tern from governmental agencies, Native American 
Tribes, the scientific community, industry, and any other interested 
parties. We seek information on:
    (1) The subspecies' biology, range, and population trends, 
including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the subspecies or 
its habitat or both.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which 
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; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (3) Information relevant to the taxonomic status of this or related 
subspecies of gull-billed terns (particularly of the gull-billed terns 
nesting in western North America), or whether any population segments 
of gull-billed terns are discrete or significant under our policy 
(Policy Regarding the Recognition of Distinct Vertebrate Population 
Segments under the Endangered Species Act, 61 FR 4722; February 7, 
1996).
    (4) Information regarding the geographic structure of van Rossem's 
gull-billed tern populations and whether any portion or portions of the 
range may be considered significant, and why.
    (5) The potential effects of climate change on this species and its 
habitat.
    If, after the status review, we determine that listing the van 
Rossem's gull-billed tern is warranted, we will propose critical 
habitat (see definition in section 3(5)(A) of the Act), under section 4 
of the Act, to the maximum extent prudent and determinable at the time 
we propose to list the species. Therefore, within the geographical 
range currently occupied by van Rossem's gull-billed tern, we request 
data and information on:
    (1) What may constitute ``physical or biological features essential 
to the conservation of the species,''
    (2) Where these features are currently found, and
    (3) Whether any of these features may require special management 
considerations or protection.
    In addition, we request data and information on ``specific areas 
outside the geographical area occupied by the species'' that are 
``essential for the conservation of the species.'' Please provide 
specific comments and information as to what, if any, critical habitat 
you think we should propose for designation if the species is proposed 
for listing, and why such habitat meets the requirements of section 4 
of the Act.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Submissions merely stating support for or opposition to the action 
under consideration without providing supporting information, although 
noted, will not be considered in making a determination. Section 
4(b)(1)(A) of the Act directs that determinations as to whether any 
species is an endangered or threatened species must be made ``solely on 
the basis of the best scientific and commercial data available.''
    You may submit your information concerning this status review by 
one of the methods listed in the ADDRESSES section. If you submit 
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the 
website. If you submit a hardcopy that includes personal identifying 
information, you may request at the top of your document that we 
withhold this personal identifying information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hardcopy submissions on http://www.regulations.gov.
    Information and supporting documentation that we received and used 
in preparing this finding, will be available for you to review at 
http://www.regulations.gov, or you may make an appointment during 
normal business hours at the U.S. Fish and Wildlife Service, Carlsbad 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition and publish our notice of the 
finding promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly commence a review the status of the species, which is 
subsequently summarized in our 12-month finding.

Petition History

    On June 8, 2009, we received a petition from the Center for 
Biological Diversity requesting that we list the ``western'' or ``van 
Rossem's'' subspecies of gull-billed tern throughout its range as 
endangered or threatened under the Act, and that we designate critical 
habitat concurrent with listing (CBD 2009, pp. 1-40). The petition 
clearly identified itself as such and included the requisite 
identification information for the petitioner, as required by 50 CFR 
424.14(a). In an August 18, 2009, letter to the petitioner, we 
responded that we had reviewed the information presented in the 
petition and determined that issuing an emergency regulation listing 
the subspecies under section 4(b)(7) of the Act was not warranted. This 
finding addresses the petition.

Previous Federal Actions

    We included van Rossem's gull-billed tern as a Category 2 candidate 
in our November 15, 1994, notice of candidate review (59 FR 58982). 
Category 2 taxa were defined as those taxa for which information in the 
possession of the Service, at that time, indicated that proposing to 
list as endangered or threatened was possibly appropriate but for which 
persuasive data on biological

[[Page 32730]]

vulnerability and threats were not available to support proposed rules. 
In the February 28, 1996, notice of candidate review (61 FR 7596), we 
announced our decision to discontinue recognition of Category 2 
candidates, including van Rossem's gull-billed tern. This decision was 
made final on December 5, 1996 (61 FR 64481). Since that time, van 
Rossem's gull-billed tern has not been treated as a candidate for 
Federal listing under the Act.
    In 2002 and 2008, pursuant to the Fish and Wildlife Conservation 
Act of 1980, as amended (16 U.S.C. 2901 et seq.), our Division of 
Migratory Bird Management included the gull-billed tern (the species as 
a whole) in the list of Birds of Conservation Concern (USFWS 2002, pp. 
1-99; USFWS 2008, pp. 1-87). The species was included as a Bird of 
Conservation Concern both nationally and in certain specific Bird 
Conservation Regions, including the U.S. portions of Bird Conservation 
Regions 32 (Coastal California) and 33 (Sonoran and Mojave Deserts) 
(USFWS 2008, pp. 48 and 49). The gull-billed tern that occurs in Bird 
Conservation Regions 32 and 33 is Gelochelidon nilotica vanrossemi.

Species Information

    The van Rossem's gull-billed tern is a medium-sized seabird. It is 
one of two subspecies of gull-billed tern in North America (Molina 
2008, p. 188) and six worldwide (Parnell et al. 1995, p. 3). Scientists 
with the U.S. Geological Survey are finalizing a study that may help 
identify additional information regarding the eastern and western North 
American subspecies; we anticipate looking into this further in the 
status review. Bancroft (1929, pp. 283-286) described Gelochelidon 
nilotica vanrossemi from specimens collected at the Salton Sea, 
Imperial County, California. Van Rossem's gull-billed tern differs from 
the nominate subspecies of the Old World (G. n. nilotica) by its 
shorter tail and bill shape (less angular gonys), and from the 
subspecies of eastern North America (G. n. aranea) by its ``decidedly 
larger size'' (Bancroft 1929, p. 284).
    Van Rossem's gull-billed tern is migratory. During the spring and 
summer, it nests locally along the Pacific coast of Mexico including 
the Gulf of California. An additional coastal nest colony is located in 
San Diego Bay, San Diego County, California. Nest colonies are also 
located at inland localities in northeastern Baja California, Mexico, 
and at the Salton Sea, Imperial County, California. The Salton Sea and 
San Diego Bay are the only nesting areas for the subspecies in the 
United States (Molina and Erwin 2006, p. 273). The extent of the winter 
range for the subspecies is not known but likely includes the Pacific 
coast of Mexico, Central America, and possibly northwestern South 
America (Molina and Erwin 2006, p. 272).
    Gull-billed terns, including van Rossem's gull-billed terns, nest 
in colonies of 20 to 50 pairs, although numbers may vary (Parnell et 
al. 1995, p. 9). Nests consist of shallow scrapes with simple 
adornments (such as rocks, shells, fish bones) (Parnell et al. 1995, p. 
10). Nesting habitat for van Rossem's gull-billed terns consists of 
low, open areas on natural and artificial beaches, islands, and levees 
with no or sparse vegetation (Parnell et al. 1995, pp. 5 and 10; 
Palacios and Mellink 2007, p. 215). At San Diego Bay and the Salton 
Sea, van Rossem's gull-billed terns typically lay 2 to 3 eggs per 
clutch (Parnell et al. 1995, p. 12). The egg incubation period is 22 to 
23 days, and the young fledge after 28 to 35 days (Parnell et al. 1995, 
p. 11). Fledglings remain dependent upon their parents for at least 4 
weeks after fledging, and probably longer (Parnell et al. 1995, p. 12).
    Like other terns, gull-billed terns (including van Rossem's gull-
billed tern) are predators, but they differ from most other tern 
species in how they forage and in the types of prey they consume. 
Unlike many other tern species that eat only fish caught by shallow 
dives into water, gull-billed terns forage on a variety of prey items 
found in different habitat types: (1) Gull-billed terns in flight 
capture flying insects in the air (Parnell et al. 1995, p. 5); (2) they 
swoop down and snatch up terrestrial prey (such as crabs, lizards, 
insects, or chicks of other birds) and aquatic prey (such as small 
fish) near the water's surface (Parnell et al. 1995, p. 5; Molina and 
Marschalek 2003, p. i); and (3) they land to pick up prey items 
(Parnell et al. 1995, p. 5). Van Rossem's gull-billed tern is 
predominantly a coastal bird, but it does occur at certain inland sites 
with aquatic resources (Parnell et al. 1995, p. 5; Molina and Erwin 
2006, p. 284). The foraging habitat of van Rossem's gull-billed terns 
consists of ``open mudflats in tidal estuaries, river margins, beaches, 
salt marshes, freshwater marshes, aquacultural impoundments (such as 
shrimp ponds), and a variety of upland habitats including open scrub, 
pasturelands and irrigated agricultural fields and associated drains,'' 
and the airspace over such areas (Molina and Erwin 2006, p. 284; 
Parnell et al. 1995, pp. 4-5).

Evaluation of Information for This Finding

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations in the Code of Federal Regulations (CFR) at 50 CFR 424, set 
forth the procedures for adding species to the Federal Lists of 
Endangered and Threatened Wildlife and Plants. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1) of the Act:
    (A) 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; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    In making this 90-day finding, we first evaluated information 
presented in the petition and other information available in our files 
on the taxonomic status of the subspecies petitioned. We then evaluated 
whether information regarding threats to the van Rossem's gull-billed 
tern, as presented in the petition and other information available in 
our files, is substantial, thereby indicating that the petitioned 
action may be warranted. Our evaluation of this information is 
presented below.
    The petitioner requests that the Service list Gelochelidon nilotica 
vanrossemi (van Rossem's gull-billed tern) as endangered or threatened 
(CBD 2009, p. 1). The petitioner does not specifically address a 
taxonomic or geographical scope at a level lower than subspecies or the 
subspecies' entire range; that is, the petitioner does not address any 
potential distinct population segments, nor does the petitioner 
identify any portions of the subspecies' range as significant. 
Therefore, we evaluated the petition as a petition to list the 
subspecies as endangered or threatened throughout its range.
    The petition states that the validity of the subspecies has not 
been questioned (CBD 2009, p. 4). However, information in the 
scientific literature shows that some authors have questioned the 
validity (distinctiveness) of van Rossem's gull-billed tern. These 
include: (1) Grinnell and Miller (1944, p. 172), who, based on 
conflicting information available at the time, stated that they ``do 
not recognize a western race'' (i.e., subspecies); (2) Unitt (2004, p. 
249), who questioned the taxon's distinctiveness based on measurements

[[Page 32731]]

presented in Parnell et al. (1995, p. 3); and (3) Pyle (2008, p. 706), 
who considered the morphological differences of the western North 
American birds to be ``too slight for subspecific recognition.'' In 
contrast, other authors did not question the distinctiveness of the 
vanrossemi subspecies. For example, the American Ornithologists' Union 
(AOU) Committee on Classification and Nomenclature (AOU Committee), the 
long-standing scientific body responsible for standardizing North 
American avian taxonomy, recognized the vanrossemi subspecies in its 
1957 (fifth) edition of its check-list of North American birds, which 
was the last time the AOU Committee explicitly addressed subspecies 
(AOU 1957, p. 233). More recently, Patten et al. (2003, p. 188), who 
critically reviewed the taxonomy of subspecies presented in their book 
on the birds of the Salton Sea region (Patten et al. 2003, p. 71), also 
recognized the subspecies. Thus, the scientific literature readily 
available in our files is not consistent regarding the distinctiveness 
of van Rossem's gull-billed tern. We will address van Rossem's gull-
billed tern for the purposes of evaluating the petitioned action; 
however, to ensure that the status review is comprehensive, we are 
soliciting scientific and commercial information regarding the 
distinctiveness and taxonomic status of van Rossem's gull-billed tern 
especially compared to those gull-billed terns that nest and winter 
along the west coast of North America.

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

Information Provided in the Petition
    The petitioner asserts that van Rossem's gull-billed tern is 
threatened by loss of nesting and foraging habitat (CBD 2009, p. 8). In 
the San Diego Bay area, the petitioner notes that nesting habitat used 
by van Rossem's gull-billed tern lies predominantly within the 
boundaries of the San Diego Bay National Wildlife Refuge (Refuge), and 
thereby is protected from development. However, its foraging habitat is 
found outside the Refuge boundaries and is subject to impacts from 
recreation and military training activities (CBD 2009, p. 8). The 
petitioner claims that tern nesting and foraging habitat at the Salton 
Sea is threatened by declining water levels because of reduction of 
inflows. The petitioner notes inflows to the Salton Sea have declined 
due to the reduced availability of irrigation water; less irrigation 
water is available from the Colorado River, and a portion of what water 
is available is being transferred from the Imperial Valley agricultural 
areas to the San Diego region for municipal use. The petitioner claims 
the amount of nesting habitat is reduced because the reduced inflow 
into the Salton Sea is causing former nesting islands to become part of 
the mainland; this allows access by land predators and increased wind-
blown dust (CBD 2009, p. 9). Also, foraging habitat for the tern, the 
petitioner asserts, is threatened at the Salton Sea by degradation of 
water quality and a reduction in the amount of irrigated agricultural 
areas (CBD 2009, p. 9). The petitioner also asserts the effects of 
global climate change, including sea-level rise, shoreline erosion, and 
changes in vegetation, threatens the van Rossem's gull-billed tern's 
nesting habitat, foraging habitat, or both (CBD 2009, p. 10). Finally, 
the petitioner asserts nesting and foraging habitat in Mexico for this 
subspecies is threatened by commercial aquaculture development, 
tourism-related development, development of evaporation ponds for 
commercial salt production (saltworks), flooding from beach erosion, 
and fluctuating water levels in water impoundments (CBD 2009, pp. 9 and 
10).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    The petitioner cited several publications to support assertions 
made in the petition; however, the petitioner did not include reference 
information for some citations (such as Schwabe et al. 2008). We 
reviewed cited and referenced publications that were readily available 
in our files, including Terp and Pavelka (1999, pp. 1-23), Molina and 
Erwin (2006, pp. 271-295), USFWS (2006, pp. 1-1 through 8-2), and 
Palacios and Mellink (2007, pp. 214-222). In general, we find 
substantive information suggesting that the assertions made by the 
petitioner are accurate. In particular, Molina and Erwin (2006, pp. 
284-287) and Palacios and Mellink (2007, pp. 215-221) identified 
destruction of nesting and foraging habitat from coastal development as 
a threat to the subspecies.
    Destruction and modification of nesting and foraging habitat may 
affect the subspecies by reducing the amount of available nesting and 
foraging habitats. Such reductions in nesting habitat may force van 
Rossem's gull-billed terns to nest in sub-optimal habitat subject to 
disturbance or other threats, which may subsequently affect the 
subspecies' reproductive success (Molina and Erwin 2006, p. 285). Also, 
van Rossem's gull-billed terns need foraging habitat close to nesting 
habitat so that adults can efficiently feed their young (Molina and 
Erwin 2006, p. 284). Destruction and modification of foraging habitat 
in the nesting range may further reduce the van Rossem's gull-billed 
terns' reproductive success. If reproductive rates are reduced enough, 
the overall population of the subspecies may be reduced. Additionally, 
the range of the subspecies may be curtailed by habitat destruction.
    The petitioner provided information, which is corroborated by 
information readily available in our files, that destruction and 
modification of van Rossem's gull-billed tern habitat has occurred and 
is likely to continue in the future. Therefore, we find the petition 
and readily available information in our files presents substantial 
information indicating that the present or threatened destruction, 
modification, or curtailment of nesting or foraging habitat may be a 
significant threat to the van Rossem's gull-billed tern.

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

Information Provided in the Petition
    The petitioner, citing information in the scientific literature 
(Gonzalez-Bernal et al. 2003, and Palacios and Mellink 2007), asserts 
that van Rossem's gull-billed terns are threatened by people collecting 
eggs, chicks, or both at certain nest sites in Mexico (CBD 2009, p. 
12).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    We reviewed Gonzalez-Bernal et al. (2003, pp. 175-177) and Palacios 
and Mellink (2007, pp. 214-222). Both indicate the eggs and young of 
colonial waterbirds, potentially including van Rossem's gull-billed 
terns, have been utilized for commercial or subsistence purposes 
(Gonzalez-Bernal et al. 2003, p. 177; Palacios and Mellink 2007, pp. 
216). This use of eggs and young results in the death of embryos and 
nestlings, which, depending on the amount of this use, could 
significantly reduce the reproductive success of nesting colonial 
waterbirds. If such use affects van Rossem's gull-billed terns and if 
utilization rates are high enough, the status of the subspecies may be 
affected. While it is unclear whether or to what extent this threat 
affects the van Rossem's gull-billed tern, we find the petition and 
readily available

[[Page 32732]]

information in our files presents substantial information indicating 
that overutilization of van Rossem's gull-billed tern eggs and 
nestlings may be a significant threat to the subspecies.

C. Disease or Predation

Information Provided in the Petition
    Disease--The petitioner notes that there is ``little to no existing 
literature on the prevalence of disease in [van Rossem's] gull-billed 
terns'' (CBD 2009, p. 12). However, the petitioner suggests that West 
Nile virus is a possible threat to van Rossem's gull-billed tern (CBD 
2009, p. 12). Additionally, the petitioner implies that van Rossem's 
gull-billed tern may be susceptible to disease by noting that a number 
of other bird species that may be found near van Rossem's gull-billed 
tern's nesting and foraging areas in southern California suffered 
illness and mortality during a 2004 outbreak of an unknown illness 
(although the petitioner notes that it may have been a result of 
contamination) (CBD 2009, p. 21).
    Predation--The petitioner asserts that predation is a threat to van 
Rossem's gull-billed tern throughout its range, noting a number of 
potential and documented predator species (CBD 2009, pp. 10-12). The 
petitioner cites several sources from the scientific literature 
documenting predation on the subspecies.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Disease--Diseases occur naturally in wildlife populations, but the 
occurrence of a disease within the range of a species does not 
necessarily mean that it is deleterious to that species. However, if 
one or more diseases are virulent enough, the status of the subspecies 
will be affected. We reviewed the petition and information in our files 
and did not find substantial information to indicate that disease may 
be a threat to the subspecies; however, we will investigate the 
potential impact of disease, including West Nile virus, during the 
status review for the subspecies.
    Predation--The petitioner cites several published and unpublished 
documents to support the assertions of predation as a potential threat; 
however, the petitioner did not include reference information for some 
citations (such as Blus and Stafford 1980, Eyler et al. 1999, and 
O'Connell and Beck 2003). We reviewed the publications that were 
readily available in our files, including Parnell et al. (1995, pp. 8 
and 13), Molina and Erwin (2006, pp. 285-286), and Palacios and Mellink 
(2007, pp. 216-219). Based on the review of these sources, we found 
information suggesting that the assertions made by the petitioner 
regarding the occurrences of predation are generally accurate. Although 
not articulated by the petitioner, we note that these sources indicate 
that predation is primarily of eggs or young at nest sites (or ``nest 
predation''), although the petitioner also alluded to predation of 
adult terns (CBD 2009, pp. 11-12).
    Predators kill prey for food. Nearly all species are subject to 
predation under natural conditions. A high level of nest predation at a 
van Rossem's gull-billed tern nest colony could significantly reduce 
the reproductive success of the subspecies at that site. Also, high 
levels of predation on adult gull-billed tern's could significantly 
affect the population of the subspecies as a whole. If predation rates 
are high enough, the status of the subspecies may be affected. We 
reviewed the petition and information in our files and did not find 
substantial information to indicate that predation may be a threat to 
the subspecies; however, we will further evaluate the potential effects 
of predation on the status of the van Rossem's gull-billed tern as we 
conduct our status review.

D. The Inadequacy of Existing Regulatory Mechanisms

Information Provided in the Petition
    The petitioner identifies three existing Federal regulatory 
mechanisms in the United States that may provide some conservation 
benefit for van Rossem's gull-billed tern. These are: (1) The Migratory 
Bird Treaty Act (16 U.S.C. 703-712), (2) the Fish and Wildlife 
Conservation Act (16 U.S.C. 2901 et seq.), and (3) Executive Order 
13186. The petitioner also identifies one existing State regulatory 
mechanism (the State of California's list of Bird Species of Special 
Concern) and one existing regulatory mechanism in Mexico (the 1936 
international treaty between the United States and Mexico for the 
protection of Migratory Birds and Game Mammals). The petitioner asserts 
that none of these existing regulatory mechanisms are adequate to 
conserve van Rossem's gull-billed tern (CBD 2009, pp. 22-24). To 
illustrate the asserted inadequacy, the petitioner includes several 
examples of past management actions under Service-issued permits that 
resulted in the death of van Rossem's gull-billed terns. These 
management actions were for protection of endangered and threatened 
species and to reduce the risk of bird airstrike hazards at an airport 
runway (CBD 2009, p. 22). The petitioner also notes there have been 
proposals for additional actions to manage gull-billed terns.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    The petitioner cites several published and unpublished sources, but 
most of the references readily available in our files are of the 
regulatory mechanisms themselves, and few readily available references 
evaluate whether regulatory mechanisms to protect van Rossem's gull-
billed tern are adequate. However, we note that Molina 2008 (p. 190) 
corroborates the petitioner's assertion that lethal control has been 
used on van Rossem's gull-billed terns in response to a potential 
airstrike hazard. Additionally, the Service has proposed to manage van 
Rossem's gull-billed tern populations that prey on other federally 
listed species on San Diego Bay National Wildlife Refuge, which is 
evidence that supports the petitioner's assertion that such examples of 
management may continue into the future.
    In general, application of Factor D, assumes two pre-existing 
conditions: (1) One or more threats exist that are severe enough to 
affect the status of the species, such existing threats would fall 
under at least one of the other listing factors (Factors A, B, C, or 
E); and (2) one or more regulatory mechanisms exist that address in 
some way the aforementioned threat or threats. Existing regulatory 
mechanisms can be inadequate, and thus considered to be a ``threat'' to 
the species under Factor D in two ways: (1) The regulatory mechanism is 
inherently inadequate to reduce the severity of the existing threat or 
threats to a point that such threats do not affect the status of the 
species; or (2) the regulatory mechanism is not inherently inadequate 
to address the threat or threats, but enforcement of that regulatory 
mechanism is lacking or wanting, thus making the existing regulatory 
mechanism inadequate to reduce the severity of the existing threat or 
threats to a point that those threats affect the status of the species.
    The petitioner asserts that threats under Factors A, B, C, and E 
are affecting the status of the species; we have found substantial 
evidence to support the assertions for Factors A, B and E (see our 
discussion under those factors). The petitioner has identified that 
regulatory mechanisms exist and asserts that such mechanisms are 
inadequate, either because of inherent flaw in the mechanism with 
respect to the threat or because of inadequate enforcement. As we noted 
above,

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instead of providing an analysis of how the regulatory mechanisms are 
inadequate, the petitioner supports the assertions by providing 
examples, which we find are accurate, at least to some extent. We 
believe the provided examples are enough to lead a reasonable person to 
conclude that existing regulatory mechanisms may be inadequate. 
Therefore, we find the petition and readily available information in 
our files presents substantial information indicating that the 
inadequacy of existing regulatory mechanisms to protect the van 
Rossem's gull-billed tern may be a significant threat to the 
subspecies.

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

Information Provided in the Petition
    The petitioner, citing a variety of published and unpublished 
sources and supplying several examples, asserts a number of natural and 
manmade factors affect the continued existence of van Rossem's gull-
billed tern. Below, we summarize and group the petitioner's claims into 
the following categories:
     The effects of other colonial-nesting bird species on van 
Rossem's gull-billed terns at nest sites, including competition for 
nesting space, disturbance of adults or young, or harm of eggs or 
chicks (CBD 2009, pp. 11 and 19) of the van Rossem's gull-billed tern.
     Disturbance of van Rossem's gull-billed terns at nest 
sites caused by the actions of humans, livestock, or dogs (CBD 2009, p. 
13).
     Intentional killing or other take (as defined under 
section 3 of the Act) of individual van Rossem's gull-billed tern 
adults, young, or eggs through legal and illegal actions, or through 
specific management actions in the United States and Mexico (CBD 2009, 
pp. 15-19).
     Deleterious effects resulting from exposure to pesticides, 
heavy metals, or other natural or anthropogenic contaminants (CBD 2009, 
pp. 20-21).
     Fluctuations in food availability resulting from natural 
or anthropogenic changes in the environment (CBD 2009, p. 20).
     Increased vulnerability to extinction and other effects 
associated with small population size (CBD 2009, p. 13).
     Effects associated with natural and anthropogenic 
variations in weather and climate, including anticipated effects 
associated with global climate change and subsequent changes in sea 
level and other sources of coastal flooding (CBD 2009, pp. 12 and 21).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    We reviewed the information cited and referenced in the petition 
and other information that was readily available in our files. The 
effects of other colonial-nesting bird species as a potential threat is 
supported by information in Molina (2004, p. 98), while disturbance by 
humans and other animals as a potential threat is supported by Parnell 
et al. (1995, p. 13), Molina and Erwin (2006, p. 285), and Palacios and 
Mellink (2007, p. 219). Intentional killing as a potential threat is 
supported by Molina and Erwin (2006, p. 287) and Molina (2008, p. 190). 
Contaminants as a potential threat is supported by Parnell et al. 
(1995, p. 13) and Molina and Erwin (2006, p. 287), while potential 
threats acting on the small population size is supported by Palacios 
and Mellink (2007, p. 221). Additionally, Parnell et al. (1995, p. 13) 
and Palacios and Mellink (2007, p. 216) include information on changes 
in climate, weather, and flooding as potential threats. Neither the 
petition nor readily available information in our files yielded 
substantial information indicating that the effects of fluctuations in 
food availability may be a significant threat to the van Rossem's gull-
billed tern.
    The individual threats under this factor are wide-ranging and may 
affect the subspecies in a number of ways. For example, such threats 
may significantly reduce the reproductive success of the van Rossem's 
gull-billed tern (such as trampling of van Rossom's gull-billed tern 
chicks by other waterbird species), result in the death of individual 
adults (such as lethal control of van Rossem's gull-billed terns in an 
effort to protect other listed species), or affect populations (such as 
contaminant build-up in the food chain). Additionally, as cited in the 
petition, the San Diego National Wildlife Refuge proposes to addle up 
to 43 percent of the van Rossem's gull-billed tern egg clutches at the 
San Diego Bay to protect listed species (Service 2009, p. 1). Although 
this activity has not been implemented by the Refuge, if such action 
occurs in the future, it would likely impact the population of this 
subspecies. If these threats, either individually or collectively, are 
severe enough, the status of the subspecies may be significantly 
affected. We have evaluated the petition and readily available 
information in our files and find substantial information indicating 
that the effects of one or more of the following--other colonial-
nesting bird species, disturbance by humans and other animals, 
intentional killing, contaminants, threats linked to small population 
size, or potential changes in climate, weather, and flooding regimes--
may significantly affect the status of van Rossem's gull-billed tern.

Finding

    On the basis of our evaluation of the information presented under 
section 4(b)(3)(A) of the Act, we have determined that the petition 
presents substantial scientific or commercial information indicating 
that listing the van Rossem's gull-billed tern may be warranted. This 
finding is based on information provided under Factor A (present or 
threatened destruction, modification, or curtailment of the subspecies' 
habitat or range), Factor B (overutilization for commercial, 
recreational, scientific, or educational purposes), Factor D (the 
inadequacy of existing regulatory mechanisms), and Factor E (other 
natural or manmade factors affecting the subspecies' continued 
existence). Because we have found that the petition presents 
substantial information indicating that the van Rossem's gull-billed 
tern may be at risk of extinction now or in the foreseeable future and 
therefore listing under the Act may be warranted, we are initiating a 
status review to determine whether listing the van Rossem's gull-billed 
tern under the Act is warranted.
    The ``substantial information'' standard for a 90-day finding 
differs from the Act's ``best scientific and commercial data'' standard 
that applies to a status review to determine whether a petitioned 
action is warranted. A 90-day finding does not constitute a status 
review under the Act. In a 12-month finding, we will determine whether 
a petitioned action is warranted after we have completed a thorough 
status review of the species, which is conducted following a 
substantial 90-day finding. Because the Act's standards for 90-day and 
12-month findings are different, as described above, a substantial 90-
day finding does not mean that the 12-month finding will result in a 
warranted finding.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Carlsbad Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Author

    The primary authors of this notice are staff members of the 
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

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Authority

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

    Dated: May 26, 2010
Daniel M. Ashe,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-13779 Filed 6-8-10; 8:45 am]
BILLING CODE 4310-55-S