[Federal Register Volume 75, Number 148 (Tuesday, August 3, 2010)]
[Rules and Regulations]
[Pages 45497-45527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18884]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R9-IA-2008-0118]
[MO 92210-0-0010-B6]
RIN 1018-AW40


Endangered and Threatened Wildlife and Plants; Determination of 
Threatened Status for Five Penguin Species

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened status for five penguins: 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) under the Endangered Species Act of 1973, as 
amended (Act).

DATES: This rule becomes effective September 2, 2010.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. Comments and materials received, as well as 
supporting documentation used in the preparation of this rule, will be 
available for public inspection, by appointment, during normal business 
hours at the U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, 
Suite 420, Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT: Janine Van Norman, Chief, Branch of 
Foreign Species, Endangered Species Program, U.S. Fish and Wildlife 
Service, 4401 North Fairfax Drive, Room 420, Arlington, VA 22203; 
telephone 703-358-2171; facsimile 703-358-1735. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    On December 18, 2008, we published a proposed rule (73 FR 77303) 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) under the Endangered Species 
Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.). That document 
also served as the 12-month finding on a petition to list these 
species, which are 5 of 12 penguin species included in the petition. We 
opened the public comment period on the proposed rule for 60 days, 
ending February 17, 2009, to allow all interested parties an 
opportunity to comment on the proposed rule. On March 9, 2010, the 
Center for Biological Diversity (CBD) filed a complaint (CV-10-992, 
N.D. Cal) for failure to issue a final listing determination within 12 
months of the proposal to list the species. In a court-approved 
settlement agreement, the Service agreed to submit a final rule to the 
Federal Register by July 30, 2010.

Previous Federal Action

    For a detailed history of previous Federal actions involving these 
five penguin species, please see the Service's proposed listing rule, 
which published in the Federal Register on December 18, 2008 (73 FR 
77303).

Summary of Comments and Recommendations

    In the proposed rule published on December 18, 2008 (73 FR 77303), 
we requested that all interested parties submit information that might 
contribute to development of a final rule. We also contacted 
appropriate scientific experts and organizations and invited them to 
comment on the proposed listings. We received 13 comments: 4 from 
members of the public, and 9 from peer reviewers.
    We reviewed all comments received from the public and peer 
reviewers for substantive issues and new information regarding the 
proposed listing of these five species, and we have addressed those 
comments below. Overall, the commenters and peer reviewers supported 
the proposed listings. One comment from the public included substantive 
information; other comments simply supported the proposed listing 
without providing scientific or commercial data.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we requested expert opinions from 14 knowledgeable peer 
reviewers with scientific expertise that included familiarity with the 
species, the geographic region in which the species occur, and 
conservation biology principles. We received responses from nine of the 
peer reviewers. They generally agreed that the description of the 
biology and habitat for each species was accurate and based on the best 
available information. They provided some new or additional information 
on the biology and habitat of some of these penguin species and their 
threats, and we incorporated that information into the rulemaking as 
appropriate. In some cases, it has been indicated in the citations by 
``personal communication,'' which could indicate either an email or 
telephone conversation, while in other cases the research citation is 
provided.

Peer Reviewer Comments

    (1) Comment: Several peer reviewers provided new data and 
information regarding the biology, ecology, life history, population 
estimates, and threat factors affecting these penguin species, and 
requested that we incorporate the new data and information into this 
final rule and consider it in making our listing determination. With 
respect to potential threats, one peer reviewer raised the issue of 
flipper banding of the yellow-eyed penguin. Several peer reviewers 
provided clarifying information on predation with respect

[[Page 45498]]

to the Humboldt and white-flippered penguins. Additionally, some of the 
peer reviewers provided technical corrections and brought to our 
attention recent papers discussing taxonomy and genetics.
    Our Response: In addition to the critical review provided by 
species experts, we considered scientific and commercial information 
regarding these penguin species contained in technical documents, 
published journal articles, and other general literature documents, 
including over 30 documents we reviewed since the publication of the 
proposed rule to list these 5 penguin species. We have incorporated the 
new information and technical corrections into this final rule. In 
addition, we address flipper banding of the yellow-eyed penguin, and 
information on predation of the Humboldt and white-flippered penguins 
in the threats analyses for those species in this final rule.
    (2) Comment: One peer reviewer suggested that the mainland and sub-
Antarctic populations of yellow-eyed penguins should be considered 
separate management units, stating that there was negligible genetic 
interchange between populations. The peer reviewer cited information 
from 1989, and indicated that more recent work was in review, although 
no researcher or paper was cited.
    Our Response: We reviewed the best available information, including 
two papers on the genetics of yellow-eyed penguin published in 2008 and 
2009, and found no basis to amend our initial finding. The 2008 and 
2009 papers support our finding that the species should be listed as 
threatened throughout its range. Additional discussion is found later 
in this document under yellow-eyed penguin.
    (3) Comment: One peer reviewer raised the issue that the taxonomy 
of the white-flippered penguin has long been in debate.
    Our Response: We reviewed the best available information regarding 
the taxonomy of white-flippered penguin (Eudyptula minor albosignata), 
and we found no basis to amend our taxonomic treatment of the species. 
See the background section below on white-flippered penguin for 
additional discussion.

Public Comments

    (4) Comment: One commenter provided additional information 
regarding potential threat factors affecting these five species, and 
requested that we consider the information and incorporate it into the 
listing determinations. Specifically, the commenter indicated that the 
Service failed to address anthropogenic climate change and how it will 
affect penguins, particularly the Humboldt penguin. The commenter also 
requested that we address the issue of accelerated ocean warming and 
ocean acidification. The commenter suggested that the pH (acidity) of 
the ocean is rapidly changing, and may lower by 0.3 to 0.4 units by the 
year 2100, which would mean the acidity would increase by 100 to 150 
percent. The commenter cited Orr et al. 2005 and Meehl et al. 2007.
    Our Response: We thank the commenter who provided this information 
for our consideration in making this final listing determination. We 
will first respond to the comment that greenhouse gas emissions will 
accelerate ocean warming and increase sea level rise. Gille (2002, p. 
1276) found that while ocean warming occurred in the 1950s and 1960s, 
it leveled off in the 1980s and 1990s; overall, there was an increase 
in ocean water temperature in the Southern Hemisphere over the past 50 
years. Looking forward to years 2090-2099, precipitation is predicted 
to increase across the sub-Antarctic and Antarctic region, with a 
greater than 20 percent increase predicted for the Antarctic continent 
(IPCC 2007, p. 10). We acknowledge that ocean warming and sea level 
rise may occur. Warming of the climate system is unequivocal, as is now 
evident from observations of increases in global average air and ocean 
temperatures, widespread melting of snow and ice, and rising global 
average sea level ((IPCC 2007, p. 30). During the status review, we 
carefully evaluated threats facing these species. We considered the 
various threats in part based on their severity. In some cases, the 
effects of climate change are unpredictable and understudied, and the 
best available information does not indicate how increased sea level 
rise and ocean warming may affect these five penguin species. However, 
we determined what major stressors are affecting the status of the 
species, and evaluated those stressors based on the best available 
scientific and commercial information
    Secondly, we acknowledge that the issue of ocean acidification was 
not directly addressed in the proposed rule. Again, with respect to 
penguins, the best available information does not address how ocean 
acidity would impact the physiology and food web associated with these 
five penguin species. We acknowledge that ocean acidification may be a 
concern, but at this time, any conclusion would be purely speculative 
regarding how much the oceanic pH may change in the penguins' habitat 
and how the other changes in the species' environments would interact 
with other known threats. The manner in which a change in ocean pH may 
affect penguins is currently unpredictable.
    (5) Comment: The same commenter requested that the Service consider 
listing these five species as endangered instead of threatened based on 
the two issues noted above.
    Our Response: Section 4(b)(1)(A) of the Act requires us to make 
listing decisions based solely on the best scientific and commercial 
data available. We have thoroughly reviewed all available scientific 
and commercial data for these species in preparing this final listing 
determination. We reviewed historical and recent publications, as well 
as unpublished reports, concerning these species. In addition, we used 
peer review to provide a more focused, independent examination of the 
available scientific information and its application to the current 
status of the species. As part of our evaluation, we carefully 
considered the quality and reliability of all data to decide which 
constitutes the best available data for our consideration in making our 
final determination. We analyzed the threats in making our 
determination, and our review of the threat factors indicate that 
listing these five species as threatened is warranted. After reviewing 
the peer review and public comments we received, we have no reason to 
alter our assessment. Based on our analysis, we determined that none of 
these five penguin species is currently in danger of extinction 
throughout its entire range, and therefore none of them meet the 
definition of endangered under the Act (16 U.S.C. 1532(6)).

Summary of Changes from Proposed Rule

    We fully considered comments from the public and peer reviewers on 
the proposed rule to develop this final listing of five foreign penguin 
species. This final rule incorporates changes to our proposed listing 
based on the comments that we received that are discussed above and 
newly available scientific and commercial information. Reviewers 
generally commented that the proposed rule was very thorough and 
comprehensive. We made some technical corrections based on new, 
although limited, information. None of the information, however, 
changed our determination that listing these five species as threatened 
is warranted.

[[Page 45499]]

Species Information and Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations 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. 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 threats 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 18 pounds 
(lb) (8 kilograms (kg)) in weight, the males averaging 1 kg more than 
females at 8.5 kg. It is the only species in the monotypic genus 
Megadyptes (Boessenkool et al. 2009, p. 819). 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).
    Unlike more strongly colonial breeding penguin species, yellow-eyed 
penguins nest in relative seclusion, out of sight of humans and one 
another (Ratz and Thompson 1999, p. 205; Seddon and Davis 1989, pp. 
653-659; Wright 1998, pp. 9-10). 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, the historic 
habitat was in coastal forests and shrub margins (Marchant and Higgins 
1990, p. 237).
    In 2001, the New Zealand Department of Conservation (NZDOC) 
published the Hoiho (Megadyptes antipodes) Recovery Plan (2000-2025) to 
state the NZDOC's intentions for the conservation of this species, to 
guide the NZDOC 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).
    In 2007, the total population estimate was 1,600 breeding pairs 
(3,200 breeding adults in the population) (Houston 2007, p. 3). As of 
2009, the total estimate for this species is 7,000 individuals 
(Boessenkool et al. 2009, p. 815), which is not substantially different 
from the 2007 estimate.
    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 by at least 75 percent from the 1940s to 1988. In 
1988, 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 3 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 a combined estimate of 178 breeding 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. This estimate, while lower than previous estimates, may be lower 
because when the population estimates were done in the 1980s and 1990s, 
they were partial surveys rather than full surveys. It is unclear 
whether numbers have declined in the past two 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 at Stewart Island and nearby 
Codfish Island, which the researchers extrapolated from density 
estimates. In the Hoiho Recovery Plan, which reported these 1988 
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 1990s'' (McKinlay 2001, p. 
8). Darby (2003, p. 148), one of the authors of the 1988 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. 
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. 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 under way.
    As of 2007, in the sub-Antarctic island range of the yellow-eyed 
penguin, there were an estimated 400 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 classified as ``Endangered'' by the 
International Union for Conservation of Nature (IUCN) 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 Department of Conservation (NZDOC) (Taylor 2000, p. 33). On 
this basis, the species was placed in the second tier of New Zealand's 
Action Plan for Seabird Conservation. The species is listed as 
``acutely threatened--nationally vulnerable'' on the New Zealand Threat 
Classification System

[[Page 45500]]

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 the 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. 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 was 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 the 
trampling of nests by domestic cattle. For example, on the mainland 
Otago Peninsula in 1985, cattle destroyed 25 out of 41 nests (60 
percent) (Marchant and Higgins 1990, p. 238).
    Yellow-eyed penguins are also more frequently exposed to fire in 
these new scrubland and agricultural habitat, 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 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). 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 
implemented to restore nesting habitat and to exclude grazing animals 
from breeding habitats (McKinlay 2001, p. 12). 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). In addition, the Yellow-eyed 
Penguin Trust has been active in the conservation of this species, and 
has purchased land specifically for the protection of the species 
(http://yellow-eyedpenguin.org.nz). Despite these efforts, yellow-eyed 
penguin numbers on the mainland have not increased and have continued 
to fluctuate dramatically at low levels, 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). Reports indicate very little 
change in the quality of terrestrial habitat of the yellow-eyed penguin 
habitat on these islands (McKinlay 2001, p. 7).
    Although individual locations remain susceptible to fire or other 
localized events, the threat of manmade habitat destruction has been 
reduced over the dispersed range of the species on the mainland South 
Island. In our analysis of other threat factors, in particular Factor 
C, we will further examine why the 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). Eight years into the 2000-2025 recovery plan, the long-term goal 
to increase yellow-eyed penguin populations remains elusive. However, 
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. Further, the species' 
island breeding habitats have either not been impacted or, if 
historically impacted, the causes of disturbance have been removed. In 
addition, the Yellow-eyed Penguin Trust has been active in the 
conservation of this species, and has purchased land specifically for 
the protection of the species. Because these conservation efforts have 
been implemented, 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 the marine environment, yellow-eyed penguins forage locally 
around colony sites during the breeding season. Unlike most penguin 
species, yellow-eyed penguins tend to be benthic (bottom of ocean) 
rather than pelagic (surface of ocean) feeders (Mattern 2007, p. 295). 
They are known to 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) 
(van Heezik 1990b, pp. 209-210). Yellow-eyed penguins that were 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

[[Page 45501]]

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 prevalent causes of chick death 
at the northeast Stewart Island study colonies (King 2007, p. 106). 
Poor chick survival and, presumably, poor recruitment of new breeding 
pairs, is reported to be 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. Stewart Island chicks received 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 at Stewart Island, degradation of benthic habitat by 
commercial oyster dredging is limiting foraging habitat for yellow-eyed 
penguins. 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 is not 
a threat to the species overall.

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. 
Tourism is the primary commercial, recreational, or educational use of 
the yellow-eyed penguin. Approximately 126,000 tourists viewed penguins 
in New Zealand in 2006 and 2007 (NZ Ministry of Tourism, 2007).
    When the proposed rule was published, we were not aware of tourism 
activities in the island portions of the range of the yellow-eyed 
penguin. However, since then, we have learned that tourists are viewing 
yellow-eyed penguins on Enderby Island, which is the northernmost 
island of a Subantarctic group known as the Auckland Islands 
approximately 320 km (199 mi) south of New Zealand. Yellow-eyed 
penguins are extremely wary of human presence and will not land on the 
beach if humans are in sight (McClung et al. 2004, p. 279). Yellow-eyed 
penguins 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 how the potential of increasing tourism impacts yellow-eyed 
penguins (Seddon and Ellenberg, 2008). 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 an older study, no obvious impacts of tourist presence were 
found (Ratz and Thompson 1999, p. 208). Breeding success appeared to be 
equivalent in both the colony visited by tourists and the colony not 
visited by tourists; however, the penguins were habituated to a 
particular noninvasive level of tourism. In newer studies, disturbance 
was associated with increased heart rate, stress level, energy use, and 
corticosterone levels (associated with stress) in parents and lower 
fledgling weights of chicks (Ellenberg et al. 2006, p. 95). Yellow-eyed 
penguins exhibited a stronger initial stress response than other 
penguin species at a breeding site exposed to unregulated tourism 
compared to an undisturbed area (Seddon and Ellenberg, 2008p. 171.) 
These studies have provided information, some of which is being used in 
the design of visitor management and control procedures at yellow-eyed 
penguin viewing areas to minimize disturbance to breeding pairs. A key 
impact from human disturbance described in the Recovery Plan is that 
yellow-eyed penguins may not come ashore or may leave the shore 
prematurely after landing. The Hoiho Recovery Plan identified 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 
were 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). NZDOC is using these existing lists 
to guide the approval of tourism. Overall, under the plan, tourism is 
being directed to those sites where impacts of tourism can be 
minimized. However, unregulated tourism still occurs (McKinlay 2001, p. 
8; PenguinSpirit 2009, p. 2, BLI 2010b, p. 2) and affects penguins.
    With respect to the impact of research on yellow-eyed penguins, 
flipper banding for scientific research was identified as having a 
negative effect on some penguin species. At a 2005 penguin symposium, 
van Heezik presented findings (pp. 265-266) that flipper banded 
penguins had a lower survival rate than nonbanded penguins for age 
class 2 to 11. Another review of scientific research regarding flipper 
banding found the survival rate of flipper banded penguins compared 
with nonbanded penguins to be 21 percent less (Froget et al. 1998, pp. 
409-413). Dugger found a 10 percent reduced survival rate in stainless 
steel-banded penguins compared with nonbanded penguins (Petersen et al. 
2006, p. 76). Petersen's review of the effects of flipper banding 
indicated that there may be negative effects of flipper banding.
    Different types of banding have been used, and species appear to be 
affected differently by them. In addition, there may be coping 
mechanisms to compensate for any drag that penguins experience when 
swimming with flipper bands. Other evidence of negative effects of 
flipper banding include the finding that unbanded King penguin adults 
were more likely to successfully breed, possibly because they arrived 
earlier at the colony for courtship. They produced almost twice as many 
young over four breeding seasons (Gauthier-Clerc et al. 2004, p. 424). 
Researchers hypothesize that the unbanded penguins have a competitive 
advantage over the banded penguins, which appears to be a reasonable 
conclusion. This research identified flipper banding as a problem, and 
the penguin scientific community subsequently modified banding 
techniques. The detrimental tagging methods were abandoned or modified. 
Therefore, after evaluating this factor, we find that flipper banding, 
while it should continue to be monitored, does not constitute a threat 
to this species. We have found no other reports of impacts on this 
species from scientific research or any other commercial, recreational, 
scientific, or educational purposes.
    Nature-based tourism has increased in recent decades. The New 
Zealand DOC, in cooperation with conservation,

[[Page 45502]]

tourism, and industry stakeholders, has put measures in place to 
understand and minimize the impacts of tourism activities on the 
yellow-eyed penguin through the Hoiho Recovery Plan. A study by Seddon 
and Ellenberg in 2008 indicates that yellow-eyed penguins are 
particularly sensitive to human disturbance such as tourism (pp. 169-
170). Although yellow-eyed penguins do not always exhibit an obvious 
alarm reaction, other penguin species have exhibited increased heart 
rates when humans were within 1 m (3 ft) of nesting penguins (Seddon 
and Ellenberg, 2008, pp. 167, 170). Yellow-eyed penguins needed more 
recovery time than other penguins after exposure to a stressor (p. 
170), and this stress response carries with it an associated 
expenditure of energy. Based on this information, we find that 
overutilization for commercial, recreational, scientific, or 
educational purposes, particularly unregulated tourism, is a threat to 
the yellow-eyed penguin.

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 
2006-2007, which involved loss of all 32 chicks at the northeast Anglem 
Coast monitoring area of the Yellow-eyed Penguin Trust. This parasite 
may have spread from Fiordland crested penguins, which are known to 
house this parasite (Taylor 2000, p. 59). Chick mortality was also 
reported at this area in 2007-2008 (Houston 2008, pers. comm.). 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 if it 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 2004-2005 breeding season, 
an outbreak of Corynebacterium amycolatum infection (diptheritic 
stomatitis) caused high mortality in yellow-eyed penguin chicks 
(Houston 2005, p. 267) at many colonies there 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, but survival was 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-
2007 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.
    Predation of chicks and sometimes adults by introduced stoats 
(Mustela erminea) (which are good swimmers), 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 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

[[Page 45503]]

with 88 percent predation at one breeding area adjacent to farmland 
(Darby and Seddon 1990, p. 57). Of 114 yellow-eyed penguin carcasses 
found on the South Island mainland between 1996 and 2003, one-quarter 
of deaths were attributed to predation. Dogs and mustelids were found 
to be the most common predators (Hocken 2005, p. 4).
    In light of this threat, protection of chicks from predators is a 
primary objective under the 2000-2025 Hoiho Recovery Plan. 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 predation is a 
threat that may be managed through trapping or other cost-effective 
methods to protect chicks in nests (McKinlay 2001, p. 18). 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 used penguin 
paths within them to gain easy access to penguin nests (Alterio et al. 
1998, p. 189). Given these conflicting reports, we cannot 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.
    Offshore, at Stewart and Codfish Islands, there are a number of 
introduced predators, but mustelids are absent. Research indicated that 
the presence of feral cats could be depressing the population of 
yellow-eyed penguins at Stewart Island. (Harper 2004, p. 26; Massaro 
and Blair 2003, p. 107). 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, Pacific rats (R. exulans), and ship rats (R. 
rattus), which are thought to prey on small chicks (Massaro and Blair 
2003, p. 107). Even though Norway rats are present on Campbell Island, 
evidence of egg or chick predation by terrestrial mammalian predators 
was not observed 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).
    At Otago Peninsula, even as objectives are set to attempt to bring 
terrestrial predators under more effective control, an emerging threat 
is predation by the New Zealand sea lion (Phocarctos hookeri). Since 
1985, sea lions have recolonized 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 that 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 exceeds 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.
    In summary, on the basis of the best available scientific 
information, we find that disease and predation, which have impacted 
both mainland and island populations, threaten the yellow-eyed penguin. 
New or recurrent disease outbreaks are reasonably likely to occur in 
the future and may result in further declines throughout the species' 
range. Although some predator eradication efforts within breeding areas 
of the yellow-eyed penguin have been successful, predation continues to 
affect the species, and we do not expect that regulatory mechanisms 
will be sufficient to address or ameliorate the threats to the species 
in the foreseeable future. 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 
those areas. We find that disease and predation are threats to this 
species.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    The yellow-eyed penguin is 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 species inhabits areas within Rakiura National Park, which 
encompasses Stewart and Codfish Islands (Whenua Hou). Under section 4 
of New Zealand's 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), although no 
additional protections are afforded by

[[Page 45504]]

this designation. 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 New Zealand DOC's 
Action Plan for Seabird Conservation in New Zealand (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. Twenty mainland breeding locations (out of an estimated 
32 to 42 sites) are reported to be under ``statutory protection'' 
against further habitat loss. However, 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 2000-2025 
Recovery Plan for this species was developed. This plan builds on the 
first phase (1985-1997) 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 provide enduring legal guarantees of 
protections for breeding habitat through reservation or covenant 
(McKinlay 2001, p. 12). The best available information does not allow 
us to evaluate in detail the progress that has been made in meeting the 
eight objectives of the 2000-2025 recovery plan, but 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 threats 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 human 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).
    A review of the best available information indicates that there are 
general, or in some cases specific, protective or regulatory measures 
to address threats to the yellow-eyed penguin. The best available 
information indicates that despite the existence of these protective or 
regulatory measures to address the threats to the yellow-eyed penguin, 
local marine habitat modification through oyster dredging in some areas 
(Factor A), disease and predation pressure (Factor C), and gillnet 
fisheries bycatch (Factor E), continue to act as threats to the yellow-
eyed penguin. We therefore find that the existing regulatory mechanisms 
are currently inadequate to protect the yellow-eyed penguin.

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.

Offshore Fisheries Bycatch

    Long-line fisheries were indicated as potentially having an effect 
on yellow-eyed penguins (BLI 2010b, p 2). Long-line fishing uses a long 
line with baited hooks attached to hanging fishing lines at various 
intervals. These lines are sometimes set using an anchor, or they can 
be left to drift. Thousands of hooks can be attached and the lines can 
be miles long and can alternatively be dragged along the seafloor or 
the surface of the ocean. Seabirds, particularly petrels, are 
especially vulnerable to long-line fishing because they take baited 
hooks. In certain conditions, birds can get hooked and tangled in the 
line and drown. This type of fishing impacts a number of New Zealand 
seabird species; however, the Action Plan for Seabird Conservation 
indicates it is unlikely that yellow-eyed penguins are caught in long-
lines. The National Plan of Action to Reduce the Incidental Catch of 
Seabirds in New Zealand Fisheries does not identify this as a threat to 
yellow-eyed penguins (Ministry of Fisheries and New Zealand DOC (MOF 
and NZDOC) 2004, p. 57)).

Coastal Fishing Bycatch

Otago Peninsula

    New Zealand's National Plan of Action to Reduce the Incidental 
Catch of Seabirds in New Zealand Fisheries, prepared by the MOF and 
NZDOC (2004, p. 57), indicated that yellow-eyed penguins are being 
incidentally caught in inshore set fishing nets (also known as gill 
nets). Gill nets are mesh nets, and they can at times be thousands of 
meters long. A study of bycatch of yellow-eyed penguins along the 
southeast coast of South Island of New Zealand during the period 1979-
1997 identified gill-net entanglement as a significant threat to the 
species (Darby and Dawson 2000, p. 327). Fishing nets are used in 
various ways. They may be set as anchored nets in long rows at or near 
the bottom of the ocean, or sometimes drift with a fishing vessel. 
Mortality was highest in areas adjacent to the Otago Peninsula (on the 
east coast of South Island, below Banks Peninsula) breeding grounds. 
Approximately 55 of 72 gill-netted penguins were found in this 
particular area (Darby and Dawson 2000, p. 329) as bycatch. 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) because not all fishermen report bycatch.
    Most gill-net 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.

[[Page 45505]]

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 gill-net bycatch may be severe at a local 
scale. One small colony inside the entrance to Otago harbor suffered 
seven 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). Given the small sizes of local yellow-eyed penguin 
concentrations, this mortality rate is significant to the maintenance 
of breeding colonies and the survival of adults in the population.

Banks Peninsula

    In response to bycatch of various species, set net bans have been 
implemented in the vicinity of the Banks Peninsula on the east coast of 
South Island, which has been designated as a marine reserve. A 4-month 
set net ban was 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). Based on the 
best available information, we are unable to conclude that these 
measures at the Banks Peninsula had been effective in reducing bycatch 
of yellow-eyed penguins. The Hoiho Recovery Plan states that bycatch is 
likely the largest source of mortality at sea; the Plan 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.
    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 yellow-eyed penguin. In 
spite of efforts to regulate this activity, bycatch in coastal gill net 
fisheries is a threat to yellow-eyed penguins foraging from mainland 
breeding areas; therefore, we expect this threat to continue into the 
foreseeable future.
    Under Factor A, we 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 no information to indicate that 
fishery interaction has any impact on the penguins. Therefore, we find 
that commercial or recreational fishing is not a threat to this 
species. However, local marine habitat modification through oyster 
dredging (commercial oyster dredging is a threat to chick survival for 
some colonies at Stewart Island), and fisheries bycatch from coastal or 
inshore set net or gillnet fishing, continue to act as threats to the 
yellow-eyed penguin in some areas of their range.

Oil and chemical spills

    We 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 on 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. Nonbreeding 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 1sank in 
Hanson Bay on the east coast of Chatham Island and released 66 U.S. 
tons (T) (60 tonnes (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 529ran aground at Breaksea Islets off 
Stewart Island. Approximately 331 T (300 t) of marine diesel were 
spilled along with smaller amounts of lubricating and waste oils.
    With favorable weather conditions and establishment of triage 
response, no casualties of the Don Wong 529pollution 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 on 
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 threats to the yellow-eyed penguin.

Yellow-eyed Penguin Finding

    Yellow-eyed penguin populations number approximately 1,600 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 (on the east coast of South 
Island) 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 
180 breeding pairs. There are an estimated 400 pairs at Campbell Island 
where numbers have declined since 1997, and 570 pairs at the Auckland 
Islands.
    Some of the documented factors affecting yellow-eyed penguin 
populations are tourism and predation. Predation occurs by introduced 
(and to a lesser extent 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

[[Page 45506]]

presence and predation. New Zealand laws including the bylaws of New 
Zealand's national parks, which encompass some of the range of the 
yellow-eyed penguin, provide some protection for this species. New 
Zealand also has programs for eradication of nonnative invasive 
species, which includes nonnative predators. 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 in terms of reducing predation, 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. We conclude that predation is 
still a significant threat to 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 caused 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 the 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 1,600 breeding pairs rangewide.
    The yellow-eyed penguin is also impacted by ongoing activities in 
the marine environment. Local marine habitat modification of the sea 
floor through oyster dredging 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 gillnet fisheries is a threat to yellow-eyed 
penguins foraging around mainland breeding areas despite efforts to 
regulate this activity. In this case, regulatory mechanisms are 
currently inadequate and we do not have any information that would lead 
us to anticipate that this would change in the foreseeable future.
    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 do not find this to be a threat to the yellow-eyed 
penguin.
    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). 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, gillnet fisheries bycatch, and the inadequacy of 
regulatory mechanisms throughout the species' range. Based on our 
analysis of the best available information, we have no reason to 
believe that population trends will change in the future, or that the 
effects of current threats acting on the species will be ameliorated in 
the foreseeable future.
    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 species with 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 are exacerbated by 
the impacts of predators, disease, and the inadequacy of regulatory 
mechanisms throughout the species' 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. Increased tourism 
is taxing the species based on the penguins' increased energy usage due 
to human presence. Because of the species' low population size 
(estimated to be approximately 1,600 breeding pairs); its continued 
decline in three out of four areas, the threats of predation by 
primarily introduced species, disease, fisheries bycatch, tourism, and 
the inadequacy of regulatory mechanisms, 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

    To determine whether any portion of the range of the yellow-eyed 
penguin warrants further consideration as endangered, we evaluated the 
geographic concentration of threats and the significance of portions of 
the range to the conservation of the species. Our evaluation was in the 
context of whether any potential threats are concentrated in one or 
more areas of the projected range, such that if there were concentrated 
impacts, those populations might be threatened, and whether any such 
population or complex might constitute a significant portion of the 
range. The word ``range'' is used here to refer to the range in which 
the species currently exists, and the word ``significant'' refers to 
the value of that portion of the range being considered to the 
conservation of the species. We also considered factors used to 
determine biological significance of a population, including: the 
quality, quantity, and distribution of habitat relative to the 
biological requirements of the species; the historical value of the 
habitat to the

[[Page 45507]]

species; the frequency of use of the habitat; the uniqueness or 
importance of the habitat for other reasons such as breeding, feeding, 
or suitability for population expansion; and its genetic diversity (the 
loss of genetically based diversity may substantially reduce the 
ability of the species to respond and adapt to future environmental 
changes). We do not find that any one population is more biologically 
significant than the other three; however, we did find 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 
possibly endangered significant portions of its range.
    The yellow-eyed penguin's range can be divided into four areas. The 
first area consists of the mainland colonies distributed along the 
southeast coast of the South Island of New Zealand. This mainland area 
is separated from the three island groups to the south. Just to the 
south is the Stewart-Codfish Islands group, which lies 18.75 mi (30 km) 
below the mainland South Island across the Fouveaux Strait. Stewart 
Island is a large island of 1,091 square mi (mi\2\) (1,746 square km 
(km\2\)), and Codfish Island is a small island of 8.75 mi\2\ (14 km\2\) 
located 6.25 mi (10 km) west of Stewart Island. The third and fourth 
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, south of the southern tip of the South Island. These 
four groups are clearly isolated from each other and from other 
portions of the yellow-eyed penguin's range.
    We evaluated these four areas of the entire range of the yellow-
eyed penguin to determine which areas may warrant further 
consideration. 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.
    For the first two areas, two unique threats were identified. 
Fisheries bycatch was identified as a unique threat for the mainland 
South Island population; and marine habitat modification due to oyster 
dredging was identified as a unique threat for the Stewart-Codfish 
Island population. Therefore, we determined that yellow-eyed penguins 
on the mainland and on the Stewart-Codfish Islands may face a greater 
level of threat than populations at the Auckland and Campbell Islands. 
In addition, the mainland population of 450 pairs represents more than 
a quarter of the overall reported population of 1,600 pairs, indicating 
that this may be a significant portion of the range. Having met these 
two initial tests, we analyzed whether this portion of the range 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 three 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.
    The Stewart-Codfish Islands population represents only 11 percent 
of the overall population of yellow-eyed penguins and its habitat is 
small in terms of geographical area. It is only 18.75 mi (30 km) away 
from the mainland of New Zealand, where the majority of this species 
resides. Marine habitat modification due to oyster dredging was 
identified as a unique threat for the Stewart-Codfish Island 
population. However, due to the proximity of this small population to 
the more numerous mainland population portion of the range, and because 
the population is adjacent 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. Therefore, we have 
determined the population is not currently in danger of extinction but 
is likely to become so within the foreseeable future.
    With respect to the Auckland Islands and Campbell Islands 
populations, there were no additional threats found to be acting on 
these populations nor did we determine that either of these populations 
have any unique biological significance to the species as a whole. 
Therefore, we have determined that the Auckland Islands and Campbell 
Islands portions of the species population is not currently in danger 
of extinction, but is likely to become so within the foreseeable 
future.
    In conclusion, we did not find that any one portion of the species' 
population contributes more substantially than others to the 
representation, resiliency, or redundancy of the species. At this time, 
although the different populations face different threats, there is no 
evidence to suggest that threats affect portions of the range 
disproportionately, or will in the foreseeable future. Therefore, we 
are listing the yellow-eyed penguin as threatened throughout all of its 
range under the Act.

White-flippered Penguin (Eudyptula minor albosignata)

Background

    Among those researchers who have considered the phylogeny of the 
Eudyptula penguins (little penguins) 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 the 
white-flippered penguin 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). We accept the white-flippered penguin as a 
subspecies, Eudyptula minor albosignata, which follows the

[[Page 45508]]

Integrated Taxonomic Information System (ITIS 2010).
    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 was 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 2000-2001 
and 2001-2002 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 the population that was occupied on 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 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 nonbreeding 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 little penguin is classified 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-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 that 
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.

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.

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. 
Populations are reported to have declined drastically since 1980 due to 
predation (Williamson and Wilson 2001, pp. 434-435). Challies and 
Burleigh reported that predation on white-flippered penguins is mainly 
by ferrets, feral cats, and possibly stoats (2004, p. 1). We know that 
introduced predators such as these as well as rats prey on penguins. 
They have been known to take chicks, eggs, and adults. On one occasion, 
50 dead penguins were found with mustelid bite marks on their necks 
(Challies 2009, pers. comm.). 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 (50 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

[[Page 45509]]

primarily on rocky sites backed by bluffs. Challies and Burleigh (2004, 
p. 4) concluded, given the subspecies' 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 
and we expect this to continue into the foreseeable future (Challies 
and Burleigh 2004, p. 5). In addition to documenting direct overland 
access to colonies by predators, 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 the penguins 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 on Godley Head near Christchurch 
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 that occurred in 1988 and 1991 at two 
relic colonies at the heads of Flea and Stony Bays. Predator trapping 
programs continue today (Challies 2009, pers. comm.). Preliminary 
results indicated white-flippered penguins 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 
2000-2001 and 2001-2002 breeding seasons that the historic decline in 
white-flippered penguin numbers was continuing. However, although the 
numbers are still less than 10 percent of what existed at the time of 
European settlement, since 2000, most of the penguin colonies have 
grown by approximately 50 percent (Challies 2009, pers. comm.).
    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 subspecies), 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.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    The white-flippered penguin is 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.
    In 1998, the IUCN Conservation Assessment and Management Plan 
(CAMP) data sheet for white-flippered penguin (Ellis et al. 1998, p. 
87) concluded 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 subspecies 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 on human 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

[[Page 45510]]

Health Center 2007, p. 2; Taylor 2000, p. 94). However, because the two 
major concentrations of white-flippered penguins are near a major South 
Island port, we conclude under Factor E that oil spills are a threat to 
this subspecies.
    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. 
On the basis of a review of available information and on the basis of 
the continued threats of predation, fisheries bycatch (including the 
use of set nets), and oil spills to this subspecies, we find that 
inadequacy of existing regulatory mechanisms is a threat to the white-
flippered penguin.

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

    In 2000, Taylor reported that New Zealand's Action Plan notes that 
white-flippered penguins were frequently caught in nearshore set nets, 
especially around Motunau Island (p. 69). The number of birds currently 
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. 
Although enforcement of all fisheries regulations has increased within 
the past few years (Challies 2009, pers. comm.), based on the best 
available information we do not have a basis to conclude that rates of 
bycatch have in fact declined or will decline in the foreseeable 
future. We have found no documented 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 
subspecies of penguin.
    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 1sank 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 529ran 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 from this oil spill 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 white-flippered penguin.
    Based on the analysis above, we find that both fisheries bycatch 
and the potential for oil spills are threats to the white-flippered 
penguin now and in the foreseeable future.

White-flippered Penguin Finding

    Predation by introduced mammalian predators is the most significant 
factor threatening white-flippered penguin within the subspecies' 
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 approximately 70 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). Therefore, we find that 
predation is a threat to the white-flippered penguin.
    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 take by set nets is exacerbating 
the more severe threat of predation at Banks Island, while such impacts 
are the primary threat at Motunau Island. Based on the best available 
scientific and commercial

[[Page 45511]]

information, we conclude that bycatch is a threat to the white-
flippered penguin.
    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. If 
a spill event were to occur near the city of Christchurch and the 
adjacent Banks Peninsula, and not be immediately contained, it 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.
    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).
    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. 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. 
Therefore, 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 subspecies is currently in danger of 
extinction.
    White-flippered penguins breed in two areas; one area is on the 
shores of the Banks Peninsula south of Christchurch on the mainland of 
New Zealand, and the other area is Motunau Island about 62 mi (100 km) 
north. Colonization of any possible intermediate breeding range appears 
to be precluded by predation (Challies and Burleigh 2004, p. 5). The 
Banks Peninsula colony is larger, consisting of about 2,110 breeding 
pairs; Motunau Island has about 1,635 breeding pairs. During our 
analysis, we did not find that there were any significant differences 
in the quality, quantity, or distribution of habitat relative to the 
biological requirements of the species. Nor did we find that there was 
uniqueness of either habitat for reasons such as breeding, feeding, or 
suitability for population expansion. No genetic differences were found 
between the populations such that one or the other was found to be 
significant.
    Threats in the marine environment, particularly fisheries bycatch, 
have similar impacts on the two areas. Given the proximity of each 
colony to the port of Christchurch, we conclude that oil spills are 
also an equal 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. Because predation is a current threat in the Banks Peninsula 
portion of the range, we considered whether the Banks Peninsula portion 
of the range, where population declines are ongoing, may be currently 
in danger of extinction. Although the threat of introduced predators is 
greater at the Banks Peninsula, two other factors offset this: 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. The threat 
of predation is somewhat greater at the Banks Peninsula relative to 
Motunau Island, but as discussed in our analysis under Factor D, the 
best available scientific and commercial data suggest that this threat 
is not so disproportionately severe as to place the species in danger 
of extinction at the Banks Peninsula portion of its range at present. 
As a result, we have determined that there are no significant portions 
of the range in which the subspecies is currently in danger of 
extinction. Therefore, we are listing 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 mi\2\ (0.7 km\2\), Codfish Island (5 mi\2\ (14 
km\2\)), 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 mi\2\ (12,500 km\2\)) and Rakiura 
National Park (63 mi\2\ (163 km\2\)) on Stewart Island and on 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 (van Heezik 1989, pp. 151-156).
    Outside of 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; however, he also states that the non-breeding range 
of this species is unknown.
    A five-stage survey effort, conducted during 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

[[Page 45512]]

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 2010, 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 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. 2007, p. 38; Molloy et al. 2003, pp. 13-23). 
Under this classification system, which is nonregulatory, 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 than or equal to 60 percent of 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 South Island and southern offshore 
islands, including Stewart Island. A major portion of this range is 
encompassed by the Fiordland National Park on South Island and Solander 
Island and Rakiura National Park on Stewart Island and on 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 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). Therefore, 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.
    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 (open ocean) 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 to Fiordland crested penguins because of 
possible changes in prey distribution as a result of warming sea 
temperatures. ((Ellis et al. 2007, p. 6; 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 Nino 
events on this species are unknown (Taylor 2000, p. 59). The plan 
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.

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

    Although human disturbance of colonies is rare because the birds 
generally nest in inaccessible sites, this species exhibits high nest 
fidelity, and their ability to reproduce may be significantly impacted 
by a small amount of human disturbance (St. Clair 1999, pp. 37-41). In 
more accessible areas, such as the northern portion of the range at 
South Westland, large concentrations of nests occur in areas accessible 
to people. In addition, tourism may disturb breeding (McLean et al. 
1997, p. 46; Taylor 2000, p. 58). The 2000 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 unclear whether such measures have been implemented based on the 
information available. Research activities, particularly handling 
penguins for purposes such as insertion of transponders and weighing, 
may also 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.
    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. Because this 
species is so sensitive to human disturbance and exhibits high nest 
fidelity, we find that the present overutilization for commercial, 
recreational, scientific, or educational purposes, particularly human 
disturbance from tourism, is a threat to the survival of the Fiordland 
crested penguin.

Factor C. Disease or Predation

    Reports from 1976 documented that Fiordland crested penguin chicks 
have

[[Page 45513]]

been infected by the sandfly-borne protozoan blood parasite 
(Leucocytozoon tawaki) (Taylor 2000, p. 59) (see discussion under 
Factor C for the yellow-eyed penguin). Diseases such as avian cholera, 
which has caused the deaths of southern rockhopper penguin adults and 
chicks at the 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 is 
possible. 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, and Pacific rat are 
also likely predators, but there is no direct evidence of rat predation 
of Fiordland crested penguins. 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 it is likely (Houston 2007b, p. 1). Domestic 
dogs are also known 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 species has been observed destroying the 
eggs and killing the chicks of Fiordland crested penguins. 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 eradicating weka from Solander 
Island and addressing the problem of weka predation at Open Bay Islands 
(Taylor 2000, p. 60).
    The available data indicate that historical declines have been 
linked to introduced predators on 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. 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. 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. On breeding islands free of mammalian predators, for 
example, on Open Bay Islands and Solander Island, an introduced bird, 
the weka, is a predator of Fiordland penguin eggs and chicks. Only 
Codfish Island is fully protected from introduced mammalian and avian 
predators. Therefore, we find that although predation by introduced 
species is not a threat to the Fiordland crested penguin on Codfish 
Island, it is a threat to this species in other portions of its range.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    The Fiordland crested penguin is 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 on Stewart Island. 
Fiordland National Park covers 15 percent of public conservation land 
in New Zealand. Under section 4 of New Zealand's 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 encompass 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 on Stewart 
Island and Whenua Hou (Codfish Island) and is protected by New 
Zealand's 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

[[Page 45514]]

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 management 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 on human 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).
    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. New Zealand's 
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 that 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.

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 
our 90-day petition finding (73 FR 77303), 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. These marine reserves are granted protection under the Marine 
Reserves Act of 1971 (NZ DOC 2010, pp. 1-3). The Act, in part, states 
that the reserves shall be preserved as far as possible in their 
natural state, marine life of the reserves shall as far as possible be 
protected and preserved, the public shall have freedom of access and 
entry to the reserves, and no person shall fish in a marine reserve 
[unless specifically authorized]. 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.
    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 New 
Zealand is remote, far from shipping activity and away from any major 
human population centers. Thus 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 1sank 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 
529ran 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 from this 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 on 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 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 leads us to conclude that 
potential oil spills are not a threat to the Fiordland crested penguin. 
Therefore, we find that other natural or manmade factors are not a 
threat to the species.

Fiordland Crested 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 free of predators. The impact of predators 
is evidenced by the major

[[Page 45515]]

historical decline of the Fiordland crested penguin during the period 
of invasion by these predators of 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. Even though this species is poorly known, an exhaustive multi-
year survey effort documented current low population numbers. Recent 
declines at Open Bay and Solander Islands have been documented as 
resulting from weka predation. The Fiordland crested penguin is a 
remote and hard-to-study species. However, in observing the impact of 
predators on other similar naive, New Zealand penguins, such as the 
yellow-eyed (Darby and Seddon 1990, p. 45) and the white-flippered 
penguin (Challies and Burleigh 2004, p. 4), one can assume that 
predators would have a similar impact on Fiordland crested penguins.
    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).
    New Zealand laws and the bylaws of its 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 the 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 
that 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 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 throughout 
all of its range, we must consider whether there are any significant 
portions of its range where the species is in danger of extinction now.
    Fiordland crested penguins breed in widely dispersed small colonies 
along the convoluted and inaccessible southwest coast of the western 
side of South Island, New Zealand, and adjacent offshore islands 
southwards from Bruce Bay, including Stewart Island, Solander Island, 
and Codfish Island. There are a total of 2,500 to 3,000 breeding pairs 
throughout its range. 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. We also found that a primary threat to the Fiordland crested 
penguin is predation by introduced birds on islands and introduced 
mammals on the mainland. Major portions of this species' range are in 
Fiordland National Park and Rakiura National Park, and on Stewart 
Island and adjacent 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 cause this portion of the range to be in danger of 
extinction now. 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. However, on the mainland, the nests are 
widely distributed, and we believe therefore are somewhat buffered from 
predators. Although the predation rate is greater than that of other 
species (Gustafson 2005, p. 2), the mainland population has been able 
to persist and is not currently in danger of extinction. While the 
threat of introduced predators is greater on the mainland, the 
population is being managed to some extent, and the threats do not rise 
to the level that the mainland population is in imminent danger of 
extinction. Due to the ability of the mainland population to persist, 
we find that there is not substantial information to conclude that the 
species in the mainland portion of its range 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. The species is widely distributed throughout its 
range and current threats do not put the species in immediate danger of 
extinction. In conclusion, we have determined that there are no 
significant portions of the range in which the species is currently in 
danger of extinction. Therefore, we are listing 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 Punihuil 
Islands near Chiloe, Chile (42 [deg]S) (Araya et al. 2000, p. 1). It 
breeds on islands off the coasts of both Peru and Chile. It is a 
congener (within the same genus) 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)),

[[Page 45516]]

Humboldt penguins depend 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 have been 
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 than in the Peruvian system (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 (Sardinops sagax) (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 Nino Southern Oscillation events (ENSO). El 
Nino 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. 
Anchovy and sardine populations are especially impacted, and these are 
the major diet of Humboldt penguins. During El Nino events, seabirds, 
fish, and marine mammals experience reduced survival and reproductive 
success, as well as 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 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 Nino years, and during those years, nesting attempts are 
reduced as food supplies shift and adults forage farther away from 
nesting sites (Culik et al. 2000, p. 2317).
    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 Nino 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.
    Modinger (1998, p. 67) estimated that historically there may have 
been a million Humboldt penguins in the Humboldt Current. 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, Modinger et al. 1998, p. 1; Ellis et 
al. 2007, p. 7).
    Estimates of the population in Peru have fluctuated in recent 
history. They were estimated to be between 3,500 and 7,000 in 1981, 
with a subsequent reported decrease to 2,100 to 3,000 individuals after 
the 1982-1983 El Nino event. In 1996, there were reported to be 5,500 
individuals, and after the strong 1997-1998 El Nino event, fewer than 
5,000. In Peru, population surveys in the southern portion of the range 
in 2006 found 41 percent more penguins than in 2004, increasing 
estimates for that area from 3,100 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 Chile, researchers estimated there were 7,500 breeding Humboldt 
penguins in Chile in 1995-1996 (Ellis et al. 1998, p. 99; Luna-Jorguera 
et al. 2000, p. 508). This estimate for Chile was significantly revised 
following surveys conducted in 2002 and 2003 at Isla Chanaral, one of 
the most important breeding islands for the Humboldt penguin (Mattern 
et al. 2004, p. 373). Mattern et al. counted 22,000 adult penguins, 
3,600 chicks, and 117 juveniles at that island in 2003 (2004, p. 373). 
While 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 indicated that rather than representing a sudden 
population increase, the discrepancy may be a result of systematic 
underestimates in eight previous counts at Isla Chanaral, which were 
all conducted using a uniform methodology, but may not have considered 
the absence of penguins due to breeding versus nonbreeding season in 
conducting the population estimate. Just to the south of this study 
area in the Coquimbo region, Luna-Jorguera et al. counted a total of 
10,300 penguins in on-land and at-sea counts conducted in 1999 (2000, 
p. 506). They found 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). In 2007, Ellis et al. 
(2007, p. 7), estimated that there were approximately 30,000 to 35,000 
individuals in the Chilean population. Other than the overall rangewide 
figures for the species presented by Ellis et al. (2007, p. 7), no 
current comprehensive estimate of the total number of penguins in Chile 
exists.
    There are varied total population estimates for this species. As 
recently as 2007, Ellis et al. (p. 7) reported a total population of 
41,000 to 47,000 individuals. However, BirdLife International currently 
indicates that there is an estimated total population of 3,000 to 
12,000 (2009, p. 2). BLI is the official IUCN Red List Authority for 
birds. BLI supplies information for all of the world's birds to the 
IUCN Red List each year. 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 three generations and 
predicted over three generations into the future. Thus, because BLI is 
the accepted authority for IUCN's Red List for birds, we accept the 
estimate of the total population to be between 3,000 and 12,000 birds.

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.

[[Page 45517]]

Terrestrial Habitat

    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. Between 1840 and 
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 Nino 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, 
which resulted in penguins 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 that produces 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 historically 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. In addition, 
their eggs and chicks are more vulnerable to predators. Alternatively, 
they can be forced to resort to more precarious nesting 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, Peru, 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 (government-owned) guano 
extraction company, PROABONOS, to limit the impacts of guano extraction 
on penguins at certain colonies to ensure that harvest is conducted 
outside the breeding season and that workers are restricted from 
disturbing penguins (IMARPE 2007, p. 2). In 1998, the Wildlife 
Conservation Society and PROABONOS fenced off penguin rookeries, which 
successfully prevented guano harvesters from harming wildlife (Paredes 
et al. p. 136).
    Two major penguin colonies at Punta San Juan and Pachacamac Island 
are in guano bird reserves. They are 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. Although guano harvest is still a concern 
in Peru, guano harvest is reported to have ceased in Chile (UNEP WCMC 
2003, p. 6).
    Historical declines have resulted from the destruction of Humboldt 
penguin's nesting substrate by guano collection, and this loss of 
nesting habitat continues to impact the breeding success of the species 
in Peru. Although guano harvest is being managed to some extent, we 
have no reason to believe the level of guano collection will change in 
the foreseeable future. We conclude, on the basis of the extent and 
severity of habitat modification and exploitation throughout the range 
of the Humboldt penguin in both countries over the past 170 years, and 
on the basis of ongoing guano extraction in Peru, that modification of 
the terrestrial breeding habitat is a threat to the survival of the 
Humboldt penguin.

Marine Habitat

    With respect to modification of the marine habitat of the Humboldt 
penguin, periodic El Nino events have been shown to have significant 
effects on the marine environment on which Humboldt penguins depend, 
because they reduce the available food sources for this species. These 
El Nino events are considered to be the main marine perturbation for 
the Humboldt penguin impacting penguin colonies in Peru (Hays 1986, pp. 
169-180; Ellis et al. 1998, p. 101; INRENA 2007, p. 1) and Chile 
(Simeone et al. 2002, p. 43). The strength and duration of El Nino 
events has increased since the 1970s. The 1997-1998 event was the most 
extreme 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 Nino and other impacts, documented 
rates of reproductive success and survival would cause declines in the 
Chilean populations. In the absence of other human impacts, El Nino 
events in Chile alone were projected to lead to 2.3 to 4.4 percent 
annual population declines. Peruvian population data for this species 
found an overall population decline of 65 percent during the 1982-83 El 
Nino event (Hays 1986, p. 169).
    While we have not found comparable documentation of the impact of 
the 1997-1998 event in Peru, few birds were recorded breeding at guano 
bird reserves in 1998. 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 a subsequent rebound (Paredes et al. 2003, 
p. 135). This suggests that a similar level of impact from a single El 
Nino event in the future could reduce current Peruvian populations from 
5,000 birds to 1,250 - 1,750 birds. Cyclical El Nino events cause high 
mortality among seabirds, but there is also high selection pressure on 
Humboldt Current seabird populations such as the Humboldt penguin to 
increase rapidly in numbers after each event (Ellis et al. 1998, p. 
101). Nonetheless, with strengthening El Nino 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 Nino events 
is highly likely

[[Page 45518]]

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, primarily due to El Nino events and 
guano extraction, are threats to the Humboldt penguin.

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

    While 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 have also been hunted on occasion for use 
as crab bait (Simeone et al. 2003, p. 328; Simeone and Schlatter 1998, 
p. 420). Paredes et al. reported that as fishing occurs more frequently 
in the proximity of penguin rookeries, fishermen have begun to take 
penguins for food in Peru (2003, p. 136). 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 the collection of 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.
    In 1981, the Humboldt penguin was listed on Appendix I of the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (CITES). CITES regulates international trade in order to 
ensure that trade of the species is compatible with the species' 
survival. International trade in specimens of Appendix-I species is 
authorized through permits or certificates under certain circumstances, 
including verification that trade will not be detrimental to the 
survival of the species in the wild. It also must be determined that 
the specimen (live animal, part, or product) was legally acquired, and 
that the activity is not for primarily commercial purposes. (UNEP-WCMC 
2010, p. 1). Prior to 1985, it was estimated that 9,264 Humboldt 
penguins had been exported to several zoos around the world within a 
period of 32 years. Between the time the species was listed under CITES 
in 1981 and 2008, there were 937 live CITES-permitted Humboldt penguin 
international shipments (UNEP-WCMC 2010, p. 1). Only one of these live 
shipments (from Peru to Venezuela) indicated that its origin was from 
the wild; the other shipments all indicated that they were of captive 
origin. Chile and Peru's exports are included in these numbers. Peru 
exported 48 live animals for educational and zoological purposes; Chile 
exported 10 live animals in 1981 and none since then. We believe that 
this limited amount of international trade, controlled via valid CITES 
permits, is not a threat to the species. Because commercial exportation 
of Humboldt penguins from Peru or Chile is now prohibited (Ellis et al. 
1998, p. 101, UNEP 2003, p. 8), export is no longer a threat to the 
species.
    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 on these three 
islands. Breeding success was very low at Damas Island, the most 
tourist accessible island, which saw over 10,000 visitors in 2003. 
Better breeding success was observed at Choros Island, a less 
accessible island which saw fewer 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 congener 
(species within the same genus) the Magellanic penguin (Spheniscus 
magellanicus), Humboldt penguins reacted to human presence and 
displayed little habituation potential. Their reactions indicate that 
there is a strong need for tourism guidelines for this species 
(Ellenberg et al. 2006, p. 103). Researchers described nest destruction 
by tourists at Punihuil Island, a popular unregulated tourist 
destination in southern Chile (Simeone and Schlatter 1998, p. 420). 
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.
    Tourism has increased rapidly and with little regulation in the 
Humboldt National Reserve and has caused nest destruction at Punihuil 
Island in Chile. In Peru, tourism is reported to be a minimal to mid-
level threat at Reserva Nacional de Paracas (Lleellish et al. 2006, p. 
4). Because Humboldt penguins are extremely sensitive to the presence 
of humans, the species' breeding success is impacted by increased 
levels of tourism. Since the prime tourist season coincides with the 
species' spring and summer breeding season, we conclude that 
insufficiently regulated tourism is a threat to the species.
    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 (hunting of Humboldt penguins 
for food and bait and harvesting of their eggs) and unregulated tourism 
as threats to Humboldt penguins. Therefore, we find that 
overutilization for commercial, recreational, scientific, or 
educational purposes is a threat to the Humboldt penguin.

Factor C. Disease or Predation

    There is no information to indicate that disease is a threat to the 
Humboldt penguin.
    Various types of predation on Humboldt penguins have been 
documented. Simeone et al. (2003, p. 331) reported that the presence of 
rats, rabbits, goats, and cats have been documented on islands along 
the Chilean coast, but their actual impacts on the Humboldt penguin 
population are unknown. In Chile, ``rats were observed at Pajaros, 
Cachagua, and Pajaros Nino [Islands]. At Pajaros Island, rats were 
present in large numbers and were observed to prey on penguin eggs and 
chicks'' (Simeone et al. 2003, p. 328). Rats and cats are a significant 
threat because they eat eggs and chicks. Luna-Jorquera et al. observed 
vampire bats preying upon juvenile Humboldt penguins (1995, p. 471); 
however, there have been no other similar reports since 1995. Foxes 
were reported to prey on Humboldt penguins at Pan de Azucar National 
Park in Chile (Culik 2009 pers. comm.). Limited conclusive data are 
available for the Humboldt penguin; however, based on studies of other 
species, it is very likely that predation is a significant threat to 
the species. Simeone and Schlatter found that the

[[Page 45519]]

threat of predation has been shown to result in rapid population 
declines in the past and that this threat is likely to continue in the 
foreseeable future due to the lack of control efforts to eradicate 
these predators (UNEP 2003, p. 7). Therefore, on the basis of the best 
available information, we conclude that predation is a threat to the 
Humboldt penguin.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    The Humboldt penguin is listed as ``endangered'' in Peru, the 
highest threat category under Peruvian legislation. 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 
which manages guano extraction. The Reserva Nacional de Paracas 
protects an area of 1,293 mi\2\ (3,350 km\2\) 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 2008, the Chilean National Commission for the Environment 
(CONAMA) listed this species as vulnerable. Other protections include a 
30-year moratorium on hunting and capture of Humboldt penguins; and at 
least four major colonies are protected by Federal law. In fact, 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 CITES and in Appendix I of 
the Convention on Migratory Species. Refer to the discussion of the 
application of CITES under Factor B with respect to international 
trade. Because commercial exportation of Humboldt penguins from Peru or 
Chile is not only prohibited (Ellis et al. 1998, p. 101, UNEP 2003, p. 
8), but also regulated under CITES, export is not a 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 is limited due to inadequate 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 fishing-free zones and that there has been slow 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.'' Therefore, regulation 
is still inadequate with respect to fisheries bycatch.
    Both countries have national authorities and national contingency 
plans for oil spill responses. Chile has the capability to respond to 
Tier One (small spills with no outside intervention) and Tier Two oil 
spill events (larger spills requiring additional outside resources and 
manpower) (International Tankers Owners Pollution Federation Limited 
(ITOPF) 2003, p. 2). Although Peru responded well to an oil spill in 
2008 near Paracas National Reserve, as of 2009, Peru was not listed as 
having significant capability to respond to oil spill events (ITOPF 
2009, p. 1). Based on the ability of Chile to respond to threats, 
Peru's successful response in 2008, and the location of Humboldt 
penguins in an area where they are not likely to be exposed to many oil 
spills, we find that oil spills are not a threat to the Humboldt 
penguin.
    As indicated under factor B, tourism has been identified as a 
threat to the Humboldt penguin. Since the 1990 designation of the 
Humboldt National Reserve in Chile, tourism has increased rapidly with 
little regulation (Ellenberg et al. 2006, p. 97). Humboldt penguin 
breeding success varied based on levels of tourism on these three 
islands. Breeding success was very low at Damas Island, the most 
tourist accessible island, which saw over 10,000 visitors in 2003. 
Better breeding success was observed at Choros Island, a less 
accessible island which saw fewer than 1,000 visitors. The highest 
breeding success was observed at the remote and largest Chanaral Island 
colony, where tourist access was negligible. Humboldt penguins reacted 
to human presence and displayed little habituation potential. Their 
reactions indicate that there is a strong need for tourism guidelines 
for this species (Ellenberg et al. 2006, p. 103). Researchers described 
nest destruction by tourists at Punihuil Island, a popular unregulated 
tourist destination in southern Chile (Simeone and Schlatter 1998, p. 
420). 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.
    Tourism has increased rapidly and with little regulation in the 
Humboldt National Reserve and has caused nest destruction at Punihuil 
Island in Chile. In Peru, tourism is reported to be a minimal to mid-
level threat at Reserva Nacional de Paracas (Lleellish et al. 2006, p. 
4). Because Humboldt penguins are extremely sensitive to the presence 
of humans, the species' breeding success is impacted by increased 
levels of tourism. Since the prime tourist season coincides with the 
species' spring and summer breeding season, we conclude that 
insufficiently regulated tourism is a threat to the species.
    We find that inadequacy of existing regulatory mechanisms, 
particularly due to the lack of enforcement of existing prohibitions 
related to fishing methods and management of fisheries bycatch, and to 
insufficiently regulated tourism, is a threat to the Humboldt penguin.

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

    Both large-scale commercial fisheries and small local 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 
Nino events (see Factor A) cause severe fluctuations in Humboldt 
penguin numbers, overfishing and entanglement (see Factor E) are 
identified as steady contributors to underlying long-term declines 
(BirdLife International 2007, p. 4). Anchovies are a primary component 
of Humboldt penguins' diet. The anchovy fishery in Peru collapsed in 
the 1970s due to a high number of catches and the overcapacity of 
fishing fleets, factors that were exacerbated by the effects of the 
1972-1973 El Nino 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 Nino events, but have rebounded more quickly 
recently. Peru reported 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). El Nino events have caused periodic crashes of the food supply of 
Humboldt penguins in Peru and Chile in both the historic and recent 
past. El Nino events, which occur irregularly every 2-7 years, have 
increased in frequency and intensity in recent years. Commercial 
fishing in combination with El Nino events has contributed to the 
historic declines of Humboldt penguins, and the identified threat of El 
Nino will interact with fisheries during future El Nino episodes. These 
events in combination with

[[Page 45520]]

competition for prey from fisheries are likely to impact Humboldt 
penguins more frequently and more severely in the foreseeable future. 
Chile reported fish 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 fisheries' extraction has the potential to harm Humboldt 
penguins if overfishing occurs (Herling et al. 2005, p. 23). 
Researchers tracking the 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 
(Culik and Luna-Jorquera (1997, p. 555) and Hennicke and Culik (2005, 
p. 178). They concluded that Humboldt penguins have high energetic 
costs to obtain food even in non-El Nino years. The synergistic actions 
of these fisheries with El Nino events can be devastating to the 
Humboldt penguin, since anchovies are one of the primary food sources 
for the species. The establishment of no-fishing zones encompassing the 
foraging range around the breeding area at Pan de Azucar Island has 
been recommended to buffer the species from possible catastrophic
effects of future El Nino events. Competition between local fishermen 
(both for commercial and noncommercial consumption) and penguins for 
local pelagic fish, particularly anchovies (Herling et al. 2005, p. 21) 
exists. The farther penguins have to travel for food, the more energy 
they expend (Davis 2001, p. 9) which leads to a reduced ability to 
survive. Herling et al. calculated that 1,400 T (1,272 t) of fish are 
required in a breeding season for 40,000 penguins. If fish are 
unavailable due to competition from fisheries, this could lead to 
decreased reproductive capabilities and starvation. (Herling et al. 
2005, p. 21). Chile is monitoring the fisheries in relation to El Nino 
episodes and Humboldt penguins. However, on the basis of the best 
available information we conclude that competition for prey from 
commercial or local fisheries is currently a threat to the Humboldt 
penguin.
    We find that the synergistic effects of El Nino combined with 
competition for prey from commercial or local fisheries is likely to be 
a threat to the Humboldt penguin within the foreseeable future by 
causing a reduction in food availability for the penguins and an 
increase in energy expenditure.
    Incidental take by fishing operations has been identified to be one 
of the most significant threat to Humboldt penguins (BLI 2010, p. 1). 
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). Paredes et al. (2003, p. 135) attribute increased human disturbance 
to the changes in distribution of penguin colonies southward in Peru. 
There are now fewer penguins on the central coastal area and more to 
the south. 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 fish 
species is occurring. Local fisheries are unable to compete with larger 
commercial operations, bringing humans and penguins into increasing 
contact, and subsequently increasing penguin mortality due to 
entanglement in fishing nets (Paredes et al. 2003, p. 135). 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. Take was highly variable 
between years, with the greatest incidental mortality occurring when 
surface set 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). This level of incidental take was found to be unsustainable even 
without factoring in periodic El Nino impacts.
    In Chile, Simeone et al. (1999, pp. 157-161) recorded that 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.
    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 marine area around 
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 pass through 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 the entire region. Major spill events in 
Chile have been limited to the area from 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). 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.
    While there is a possibility of oil spill impacts as a result of 
incidents along the Peruvian or Chilean coast, we find a number of 
factors mitigate against a finding that oil spills are 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's 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.
    Other than El Nino events, which were identified as a threat factor 
and discussed under factor A, the best available information does not 
indicate that climate change is likely to cause this species to become 
in danger of extinction now or in the foreseeable future. We rely 
primarily on synthesis documents (e.g., IPCC 2007) that present the 
consensus view of a very large number of experts on climate change from 
around the world. We have found

[[Page 45521]]

that these synthesis reports, as well as the scientific papers used in 
those reports or resulting from those reports, represent the best 
available scientific information we can use to inform our decision. 
Gille (2002, p. 1276) found that ocean warming did occur in the 1950s 
and 1960s, but that it leveled off in the 1980s and 1990s. Climate-
change scenarios estimate that the mean air temperature could increase 
by more than 3 [deg]C (5.4 [deg]F) by 2100 (IPCC 2007, p. 46). Overall, 
there was an increase in ocean water temperature in the Southern 
Hemisphere over the past 50 years. Additionally, during 2090-2099, 
precipitation is predicted to increase across the sub-Antarctic and 
Antarctic region, with a greater than 20 percent increase predicted for 
the Antarctic continent. Ocean warming and sea level rise may occur 
based on increases in global average air and ocean temperatures, 
widespread melting of snow and ice, and rising global average sea level 
((IPCC 2007, p. 30). However, although the models above make general 
predictions at a large scale, we know of no climate change models 
currently available that make meaningful predictions of climate change 
at a smaller scale that includes the range of the Humboldt penguin. 
Given this lack of information, we are unable to conclude that climate 
change, sea level rise, or ocean warming other than El Nino events, are 
a threat to the species.
    The Humboldt penguin is vulnerable to various threats under Factor 
E. In summary, we find that the synergistic effects of El Nino combined 
with competition for prey from commercial or local fisheries 
(competition with fishermen in times of reduced food availability), 
fisheries bycatch (catch in gillnets), and fishing with explosives are 
threats to the survival of the Humboldt penguin.

Humboldt Penguin Finding

    The Humboldt penguin has decreased historically from what was 
believed by some to be more than a million birds in the 19\th\ century 
to 41,000 to 47,000 birds today (Ellis et al. 1997, pp. 96-97; Ellis et 
al. 2007, p. 7.). 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 believed to be a correction of systematic 
undercounting that occurred for 20 years; we cannot conclude that it 
signifies recent population increases in Chile.
    Under Factor A, we find that the present or threatened destruction, 
modification, or curtailment of the Humboldt penguin's habitat or range 
is occurring. Historical threats to terrestrial habitat, in particular 
the destruction of Humboldt penguin nesting substrate by guano 
collection, have in part 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 ongoing harvest.
    The impact of El Nino 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. Given reduced population sizes and the existence of other 
significant threats, the resiliency of the Humboldt penguin to respond 
to these cyclical El Nino events is greatly reduced. 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 severely in the foreseeable future.
    Under Factor B, we find that the species is being overutilized for 
commercial, recreational, scientific, or educational purposes. Harvest 
of Humboldt penguins for food, eggs and bait is a threat to the 
survival of the Humboldt penguin throughout its range. We have no 
reason to believe this threat will be ameliorated in the future. 
Tourism, if not properly managed or regulated, has the potential to 
impact individual colonies; therefore, we conclude that inadequately 
managed tourism is currently a threat to the species.
    Under Factor C, on the basis of the best available information, we 
conclude that predation is a threat to the Humboldt penguin.
    Under Factor D, there is evidence of lack of enforcement and lack 
of significant measures to reduce the impacts of bycatch and 
inadequately regulated tourism. Therefore, we find that inadequacy of 
existing regulatory mechanisms, particularly due to the lack of 
enforcement of existing prohibitions related to fishing methods and 
management of fisheries bycatch, along with insufficiently regulated 
tourism, is a threat to the Humboldt penguin.
    Under Factor E, we find that other natural or manmade factors are 
affecting the continued existence of this species. First, 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 
as ranges of other penguin species. Therefore, we conclude that oil 
spill impacts are not a threat to the survival of the Humboldt penguin. 
Industrial fisheries' extraction, which in conjunction with El Nino 
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. Large-scale commercial fisheries and local-scale 
fisheries' extraction are targeting the same prey as the Humboldt 
penguin, which is 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. We have no reason 
to believe this will be ameliorated in the foreseeable future. 
Therefore, we find that ongoing threat of incidental take from 
fisheries bycatch and fishing with explosives are threats to the 
Humboldt penguin.
    In summary, we find that the Humboldt penguin is likely to become 
in danger of extinction within the foreseeable future due to : (1) 
Destruction of its habitat by guano extraction; (2) high likelihood of 
El Nino events impacting the prey of Humboldt penguins in cyclical 2- 
to 7-year timeframes; (3) intentional harvest of this species for meat, 
eggs, and bait, and improperly managed tourism; (4) inadequacy of 
existing regulatory mechanisms, particularly in the area of enforcement 
of existing prohibitions related to fishing methods and management of 
fisheries bycatch and inadequately regulated tourism; (5) predation by 
rats and cats; and (6) incidental take from fisheries bycatch and 
fishing with explosives.

Distinct Population Segment (DPS)

    Section 3(15) 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, the Service and National Marine 
Fisheries Service published a Policy Regarding the Recognition of 
Distinct Vertebrate Population Segments

[[Page 45522]]

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 both endangered and threatened wildlife.
    We determine: (1) The discreteness of a population in relation to 
the remainder of the taxon to which it belongs; (2) the significance of 
the population segment to the taxon to which it belongs; and (3) the 
population segment's conservation status in relation to the Act's 
standards for listing (addition to the list), delisting (removal from 
the list), or reclassification (i.e., whether the population segment is 
endangered or threatened).
    The policy first requires the Service to determine that a 
vertebrate population is discrete in relation to the remainder of the 
taxon to which it belongs. Discreteness refers to the ability to 
delineate a population segment from other members of a taxon based on 
either (1) physical, physiological, ecological, or behavioral factors, 
or (2) international governmental boundaries that result in significant 
differences in control of exploitation, management, or habitat 
conservation status, or regulatory mechanisms that are significant in 
light of section 4(a)(1)(D) of the Act--the inadequacy of existing 
regulatory mechanisms.
    Second, if we determine that the population is discrete under one 
or more of the discreteness conditions, then a determination is made as 
to whether the population is significant to the larger taxon to which 
it belongs. In carrying out this examination, we consider available 
scientific evidence of the population's importance to the taxon to 
which it belongs. This consideration may include, but is not limited to 
the following: (1) The persistence of the population segment in an 
ecological setting that is unique or unusual for the taxon; (2) 
evidence that loss of the population segment would result in a 
significant gap in the range of the taxon; (3) evidence that the 
population segment represents the only surviving natural occurrence of 
a taxon that may be more abundant elsewhere as an introduced population 
outside of its historic range; and (4) evidence that the discrete 
population segment differs markedly from other populations of the 
species in its genetic characteristics from other populations of the 
species. A population segment needs to satisfy only one of these 
conditions to be considered significant.
    Lastly, if we determine that the population is both discrete and 
significant, then the policy requires an analysis of the population 
segment's conservation status in relation to the Act's standards for 
listing (addition to the list), delisting (removal from the list), or 
reclassification (i.e., whether the population segment is endangered or 
threatened).
    Humboldt penguins have a continuous range from northern Peru to 
mid-southern Chile. We analyzed this species to determine if a DPS 
existed because its range spans two countries.

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.
    With respect to discreteness criterion 1, we did not identify any 
marked biological boundaries between populations within that range or 
any differences in physical, physiological, ecological, or behavioral 
factors among any groups within that range. We found no reports of 
genetic or morphological discontinuity between any discrete segments 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, intentional take of penguins is 
prohibited, but some illegal take occurs. 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 trends or 
that conservation concerns are different. In fact, the impacts of 
habitat loss, the effects of El Nino, intentional take, inadequacy of 
regulatory mechanisms, and fisheries bycatch are concerns throughout 
the species' range in both countries.
    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

    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. Recent research found that long-term 
gene flow is occurring between populations in Peru and Chile, but, as 
would be expected, it is affected by geographic distance (Schlosser et 
al. 2009, p. 839). The researchers further suggest that this species 
should be managed as a metapopulation rather than as separate 
populations.
    Overall, for each factor identified as a threat, we found that 
threats occurred throughout the range. Terrestrial and marine habitat 
loss, which included the impacts of guano extraction and the effects of 
El Nino, intentional harvest, insufficiently regulated tourism, the 
inadequacy of regulatory mechanisms, and fisheries bycatch were 
determined to be threats throughout the 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 does 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

[[Page 45523]]

fluctuated between 2,100 and 7,000 individuals since 1981, with 
fluctuations attributed to response to El Nino 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 allow 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 danger of 
extinction. Therefore, we are listing 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 on the 
Bounty Islands and Antipodes Islands, located approximately 437 mi (700 
km) and 543 mi (870 km), respectively, southeast of the South Island of 
New Zealand (NZ DOC 2006, pp. 27, 30). Its habitat consists of 8 of the 
20 Bounty islands, with a total area of 0.5 mi\2\ (1.3 km\2\). The 
Antipodes Islands consist of two main islands and some minor islands. 
The largest is Antipodes Island, consisting of 2,025 hectares (ha) 
\\(5,004 acres (ac)), and the second island, Bollons, consists of 50 ha 
(124 ac). 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). In 1978, counts of erect-
crested penguins at Bounty Islands estimated 115,000 breeding pairs 
(Robertson and van Tets 1982, p. 315), but 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 
complete surveys of the species since 1997-1998; however, a 2004 survey 
found numbers on Proclamation Island (2,788 breeding pairs) (De Roy and 
Amey 2005) to be similar to the numbers found in 1998, suggesting a 
stable population, at least at that breeding site.
    In 1978, the population on the Antipodes was thought to be similar 
in size to that of the Bounty Islands (about 115,000 breeding pairs). 
Surveys in 1995 indicated a population of 49,000 to 57,000 pairs in the 
Antipodes (Taylor 2000, p. 65). Tennyson (2002) estimated a population 
of 52,000 pairs in 1995. Comparisons of photographs of nesting areas 
from the Antipodes show a constriction of colonies at some sites during 
the period 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; Houston 2008, pers. comm.).
    A few hundred birds formerly bred at Campbell Island farther to the 
southwest in the 1940s (Bailey and Sorensen 1962); in 1986-1987, 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 (Richdale 1950, pp. 152-166; Houston 
2007, p. 3). Based on this information, we do not consider these areas 
to be 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). On that basis, it was 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 
nonregulatory, 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 to the 
species.
    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 terrestrial habitat in search of food (Davis 
2001, p. 9). It has been hypothesized that slight warming of sea 
temperatures, which is attributed to El Nino events, coupled with 
change in distribution of prey species due to a change in the ocean 
environment, is having an impact on erect-crested penguin colonies 
(Taylor 2000, p. 66; Ellis et al. 2007, p. 6). With respect to 
modification of the marine habitat of this species, periodic El Nino 
events have been shown to have significant effects on the marine 
environment on which species such as the erect crested penguins depend. 
El Nino events are known to reduce the available food sources such as 
fish species on which penguins rely heavily. These El Nino events are 
considered to be the main marine perturbation for the erect-crested

[[Page 45524]]

penguins. 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 suggests 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's 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, resulting in a ``very rapid decline'' 
in more than 90 percent of the population, and thus is a threat of high 
impact to this species (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.

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.

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 impacting 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.

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 human 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.

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 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

[[Page 45525]]

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.
    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. A 
large proportion of erect-crested penguin populations are found on two 
isolated, but widely separated, island archipelagos during the breeding 
season. 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. 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 nonbreeding 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 might have concluded that this is a threat to this species, 
were it not for New Zealand's successful Oil Spill Response and 
Contingency Plan. For example, in March 2000, the fishing vessel 
Seafresh 1sank 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 529ran 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 
from this pollution event were discovered (Taylor 2000, p. 94). 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. The remoteness of Antipodes and Bounty Islands and their 
extreme distance from major shipping routes or shipping activity 
further lessen the chance that oil and chemical spills would affect 
this species. On the basis of the best available information, we find 
that oil and chemical spills are not a threat to the erect-crested 
penguin.

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 
1997-1998. At the Antipodes Islands, declines of 50 to 58 percent have 
been estimated between 1978 and 1995, with photographic evidence from 
those 2 years showing obvious contraction in colony areas at some sites 
(Taylor 2000, p. 65). Formal surveys have not been conducted since the 
1995 and 1997-1998 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.
    The most recent detailed information, from a decade ago, indicated 
populations were in decline, with more recent qualitative information 
suggesting declines continue. We have no recent population assessments 
for the erect-crested penguin. Although this qualitative data is 
currently the best information available, its use in establishing a 
reliable population trend is limited. 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.
    The weight of evidence of available information suggests that the 
changes in the marine environment due to El Nino events may be the most 
likely cause of this species' 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, combined with 
the limited number of breeding areas, make this species even more 
vulnerable to the threats from changes in the marine habitat. El Nino 
events can have an effect on the marine environment by causing changes 
in ocean currents. Warmer waters will not contain the fish species 
normally preyed upon by penguins. Ocean areas used by penguins to 
forage for fish species may be warmer during El Nino years, which 
decreases food availability for the penguins. Because the normal prey 
base is unavailable for the erect crested penguins, they have to travel 
farther and expend more energy to obtain food.
    We are unsure the exact mechanism causing the decline of the erect-
crested penguin populations, however data indicate that the population 
is in a declining trend. Although changes in the marine environment 
(Factor A) have been hypothesized to be responsible for the species' 
decline, the cause of the decline are not definitively known. It is not 
necessary to identify the causes of the decline with certainty to 
warrant listing of a species under the Act. At this time, NZDOW can 
monitor any threats to the species, but they currently have no 
management tools to reduce any suspected threats. Therefore, it is 
reasonably likely that these threats will continue in the future. 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. Therefore, on the basis 
of our analysis of the best available scientific and commercial 
information, we conclude that, due to changes in the marine 
environment, the erect-crested is likely to become in danger of 
extinction within the foreseeable future throughout all of its range.

Significant Portion of the Range Analysis

    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

[[Page 45526]]

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 allow 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 are listing 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 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. Regulations 
governing permits are codified at 50 CFR 17.22 for endangered species, 
and at 17.32 for threatened species. The prohibitions for threatened 
species state that most of the prohibitions for endangered species also 
apply to threatened species. The prohibitions under 50 CFR 17.21 make 
it illegal for any person subject to the jurisdiction of the United 
States to ``take'' (take includes to 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.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. 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.

Required Determinations

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).

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 
Endangered Species Program, U.S. Fish and Wildlife Service (see the FOR 
FURTHER INFORMATION CONTACT section).

Authors

    The primary authors of this final rule are the staff members of the 
Branch of Foreign Species, Endangered Species Program, U.S. Fish and 
Wildlife Service, 4401 N. Fairfax Drive, Arlington, VA 22203.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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.

0
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
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 45527]]

 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Penguin, erect-crested              Eudyptes sclateri   New Zealand, Bounty  Entire                         T           771            NA            NA
                                                        Islands and
                                                         Antipodes Islands.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Penguin, Fiordland crested          Eudyptes            New Zealand, South   Entire                         T           771            NA            NA
                                    pachyrhynchus        Island and
                                                         offshore islands
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Penguin, Humboldt                   Spheniscus          Eastern Pacific      Entire                         T           771            NA            NA
                                    humboldti            Ocean--Chile, Peru
--------------------------------------------------------------------------------------------------------------------------------------------------------
Penguin, white-flippered            Eudyptula minor     New Zealand, South   Entire                         T           771            NA            NA
                                    albosignata          Island
--------------------------------------------------------------------------------------------------------------------------------------------------------
Penguin, yellow-eyed                Megadyptes          New Zealand, South   Entire                         T           771            NA            NA
                                    antipodes            Island and
                                                         offshore islands
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

    Dated: July 12, 2010

Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-18884 Filed 8-2-10; 8:45 am]
BILLING CODE 4310-55-S