[Federal Register: December 18, 2008 (Volume 73, Number 244)]
[Proposed Rules]
[Page 77332-77341]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de08-37]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R9-IA-2008-0068; 96000-1671-0000-B6]
RIN 1018-AV60
Endangered and Threatened Wildlife and Plants; 12-Month Finding
on a Petition To List the African Penguin (Spheniscus demersus) Under
the Endangered Species Act, and Proposed Rule To List the African
Penguin as Endangered Throughout Its Range
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule and notice of 12-month petition finding.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the African penguin (Spheniscus demersus) as an endangered species
under the Endangered Species Act of 1973, as amended (Act). This
proposal, if made final, would extend the Act's protection to this
species. This proposal also constitutes our 12-month finding on the
petition to list this species. The Service seeks data and comments from
the public on this proposed rule.
DATES: We will accept comments and information received or postmarked
on or before February 17, 2009. We must receive requests for public
hearings, in writing, at the address shown in the FOR FURTHER
INFORMATION CONTACT section by February 2, 2009.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: [FWS-R9-IA-2008-0068]; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept comments by e-mail or fax. We will post all
comments on http://www.regulations.gov. This generally means that we
will post any personal information you provide us (see the Public
Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Pamela Hall, Branch Chief, Division of
Scientific Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax
Drive, Room 110, Arlington, VA 22203; telephone 703-358-1708; facsimile
703-358-2276. If you use a telecommunications device for the deaf
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we request
comments or suggestions on this proposed rule. We particularly seek
comments concerning:
(1) Biological, commercial, trade, or other relevant data
concerning any threats (or lack thereof) to this species and
regulations that may be addressing those threats.
(2) Additional information concerning the range, distribution, and
population size of this species, including the locations of any
additional populations of this species.
(3) Any information on the biological or ecological requirements of
the species.
(4) Current or planned activities in the areas occupied by the
species and possible impacts of these activities on this species.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
consider comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. If you submit a hardcopy comment that includes
personal identifying information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Division of Scientific Authority, 4401 N. Fairfax
Drive, Room 110, Arlington, VA 22203; telephone 703-358-1708.
Background
Section 4(b)(3)(A) of the Act (16 U.S.C. 1533 (b)(3)(A)) requires
the Service to make a finding known as a ``90-day finding,'' on whether
a petition to add, remove, or reclassify a species from the list of
endangered or threatened species has presented substantial information
indicating that the requested action may be warranted. To the maximum
extent practicable, the finding shall be made within 90 days following
receipt of the petition and published promptly in the Federal Register.
If the Service finds that the petition has presented substantial
information indicating that the requested action may be warranted
(referred to as a positive finding), section 4(b)(3)(A) of the Act
requires the Service to commence a status review of the species if one
has not already been initiated under the Service's internal candidate
assessment process. In addition, section 4(b)(3)(B) of the Act requires
the Service to make a finding within 12 months following receipt of the
petition on whether the requested action is warranted, not warranted,
or warranted but precluded by higher-priority listing actions (this
finding is referred to as the ``12-month finding''). Section 4(b)(3)(C)
of the Act requires that a finding of warranted but precluded for
petitioned species should be treated as having been resubmitted on the
date of the warranted but precluded finding, and is, therefore, subject
to a new finding within 1 year and subsequently thereafter until we
take action on a proposal to list or withdraw our original finding. The
Service publishes an annual notice of resubmitted petition findings
(annual notice) for all foreign species for which listings were
previously found to be warranted but precluded.
In this notice, we announce a warranted 12-month finding and
proposed rule to list one penguin taxon, the African penguin, as an
endangered species under the Act. We will announce the 12-month
findings for the emperor penguin (Aptenodytes forsteri), southern
rockhopper penguin (Eudyptes chrysocome), northern rockhopper penguin
(Eudyptes chrysolophus), Fiordland crested penguin (Eudyptes
pachyrhynchus), erect-crested penguin (Eudyptes sclateri), macaroni
penguin (Eudyptes chrysolophus), white-flippered penguin (Eudyptula
minor albosignata), yellow-eyed penguin (Megadyptes antipodes), and
Humboldt penguin (Spheniscus humboldti) in one or more subsequent
Federal Register notice(s).
[[Page 77333]]
Previous Federal Actions
On November 29, 2006, the Service received a petition from the
Center for Biological Diversity to list 12 penguin species under the
Act: Emperor penguin, southern rockhopper penguin, northern rockhopper
penguin, Fiordland crested penguin, snares crested penguin (Eudyptes
robustus), erect-crested penguin, macaroni penguin, royal penguin
(Eudyptes schlegeli), white-flippered penguin, yellow-eyed penguin,
African penguin, and Humboldt penguin. Among them, the ranges of the 12
penguin species include Antarctica, Argentina, Australian Territory
Islands, Chile, French Territory Islands, Namibia, New Zealand, Peru,
South Africa, and United Kingdom Territory Islands. The petition is
clearly identified as such, and contains detailed information on the
natural history, biology, status, and distribution of each of the 12
species. It also contains information on what the petitioner reported
as potential threats to the species from climate change and changes to
the marine environment, commercial fishing activities, contaminants and
pollution, guano extraction, habitat loss, hunting, nonnative predator
species, and other factors. The petition also discusses existing
regulatory mechanisms and the perceived inadequacies to protect these
species.
In the Federal Register of July 11, 2007 (72 FR 37695), we
published a 90-day finding in which we determined that the petition
presented substantial scientific or commercial information to indicate
that listing 10 species of penguins as endangered or threatened may be
warranted: Emperor penguin, southern rockhopper penguin, northern
rockhopper penguin, Fiordland crested penguin, erect-crested penguin,
macaronis penguin, white-flippered penguin, yellow-eyed penguin,
African penguin, and Humboldt penguin. Furthermore, we determined that
the petition did not provide substantial scientific or commercial
information indicating that listing the snares crested penguin and the
royal penguin as threatened or endangered species may be warranted.
Following the publication of our 90-day finding on this petition,
we initiated a status review to determine if listing each of the 10
species is warranted, and opened a 60-day public comment period to
allow all interested parties an opportunity to provide information on
the status of the 10 species of penguins. The public comment period
closed on September 10, 2007. In addition, we attended the
International Penguin Conference in Hobart, Tasmania, Australia, a
quadrennial meeting of penguin scientists from September 3-7, 2007
(during the open public comment period), to gather information and to
ensure that experts were aware of the status review and the open
comment period. We also consulted with other agencies and range
countries in an effort to gather the best available scientific and
commercial information on these species.
During the public comment period, we received over 4,450
submissions from the public, concerned governmental agencies, the
scientific community, industry, and other interested parties.
Approximately 4,324 e-mails and 31 letters received by U.S. mail or
facsimile were part of one letter-writing campaign and were
substantively identical. Each letter supported listing under the Act,
included a statement identifying ``the threat to penguins from global
warming, industrial fishing, oil spills and other factors,'' and listed
the 10 species included in the Service's 90-day finding. A further
group of 73 letters included the same information plus information
concerning the impact of ``abnormally warm ocean temperatures and
diminished sea ice'' on penguin food availability and stated that this
has led to population declines in southern rockhopper, Humboldt,
African, and emperor penguins. These letters stated that the emperor
penguin colony at Point Geologie has declined more than 50 percent due
to global warming and provided information on krill declines in large
areas of the Southern Ocean. They stated that continued warming over
the coming decades will dramatically affect Antarctica, the sub-
Antarctic islands, the Southern Ocean and the penguins dependent on
these ecosystems for survival. A small number of general letters and e-
mails drew particular attention to the conservation status of the
southern rockhopper penguin in the Falkland Islands.
Twenty submissions provided detailed, substantive information on
one or more of the 10 species. These included information from the
governments, or government-affiliated scientists, of Argentina,
Australia, Namibia, New Zealand, Peru, South Africa, and the United
Kingdom, from scientists, from 18 members of the U.S. Congress, and
from one non-governmental organization (the original petitioner).
On December 3, 2007, the Service received a 60-day Notice of Intent
to Sue from the Center for Biological Diversity (CBD). CBD filed a
complaint against the Department of the Interior on February 27, 2008,
for failure to make a 12-month finding on the petition. On September 8,
2008, the Service entered into a Settlement Agreement with CBD, in
which we agreed to submit to the Federal Register 12-month findings for
the 10 species of penguins, including the African penguin, on or before
December 19, 2008.
We base our findings on a review of the best scientific and
commercial information available, including all information received
during the public comment period. Under section 4(b)(3)(B) of the Act,
we are required to make a finding as to whether listing each of the 10
species of penguins is warranted, not warranted, or warranted but
precluded by higher priority listing actions.
African Penguin (Spheniscus demersus)
Background
The African penguin is known by three other common names: Jackass
penguin, cape penguin, and black-footed penguin. The ancestry of the
genus Spheniscus is estimated at 25 million years ago, following a
split between Spheniscus and Eudyptula from the basal lineage
Aptenodytes (the ``great penguins,'' emperor and king). Speciation
within Spheniscus is recent, with the two species pairs originating
almost contemporaneously in the Pacific and Atlantic Oceans in
approximately the last 4 million years (Baker et al. 2006, p. 15).
African penguins are the only nesting penguins found on the African
continent. Their breeding range is from Hollamsbird Island, Namibia, to
Bird Island, Algoa Bay, South Africa (Whittington et al. 2000a, p. 8),
where penguins form colonies (rookeries) for breeding and molting.
Outside the breeding season, African penguins occupy areas throughout
the breeding range and farther to the north and east. Vagrants have
occurred north to Sette Cama (2 degrees and 32 minutes South
(2[deg]32'S)), Gabon, on Africa's west coast and to Inhaca Island
(26[deg]58'S) and the Limpopo River mouth (24[deg]45'S), Mozambique, on
the east coast of Africa (Shelton et al. 1984, p. 219; Hockey et al.
2005, p. 632). A coastal species, they are generally spotted within 7.5
miles (mi) (12 kilometers (km)) of the shore.
There has been abandonment of breeding colonies and establishment
of new colonies within the range of the species. Within the Western
Cape region in southwestern South Africa, for example, penguin numbers
at the two easternmost colonies (on Dyer and Geyser Islands) and three
northernmost colonies (on Lambert's Bay and Malgas
[[Page 77334]]
and Marcus Islands) decreased, while the population more than doubled
over the 1992-2003 period at five colonies, including the two largest
(Dassen and Robben Islands) (du Toit et al. 2003, p. 1). The most
significant development between 1978 and the 1990s was the
establishment of three colonies that did not exist earlier in the 20th
century--Stony Point, Boulder's Beach in False Bay, and Robben Island,
which now supports the third largest colony for the species (du Toit et
al. 2003, p. 1; Kemper et al. 2007, p. 326).
African penguins are colonial breeders. They breed mainly on rocky
offshore islands, either nesting in burrows they excavate themselves or
in depressions under boulders or bushes, manmade structures, or large
items of jetsam. Historically, they dug nests in the layers of sun-
hardened guano (bird excrement) that existed on most islands. However,
in the 19th century, European and North American traders exploited
guano as a source of nitrogen, denuding islands of their layers of
guano (Hockey et al. 2005, p. 633; du Toit et al. 2003, p. 3).
African penguins have an extended breeding season; colonies are
observed to breed year-round on offshore islands (Brown et al. 1982, p.
77). Broad regional differences do exist, though, and the peak of the
breeding season in Namibia (November and December) tends to be earlier
than the peak for South Africa (March to May). Breeding pairs are
considered monogamous; about 80 to 90 percent of pairs remain together
in consecutive breeding seasons. The same pair will generally return to
the same colony, and often the same nest site each year. The male
carries out nest site selection, while nest building is by both sexes.
Although population statistics vary from year to year, studies at a
number of breeding islands revealed mean reported adult survival values
per year of 0.81 (Crawford et al. 2006, p. 121). African penguins have
an average lifespan of 10-11 years in the wild, the females reaching
sexual maturity at the age of 4 years and the males at the age of 5
years. The highest recorded age in the wild is greater than 27 years
(Whittington et al. 2000b, p. 81); however, several individual birds
have lived to be up to 40 years of age in captivity.
Feeding habitats of the African penguin are dictated by the unique
marine ecosystem of the coast of South Africa and Namibia. The Benguela
ecosystem, encompassing one of the four major coastal upwelling
ecosystems in the world, is situated along the coast of southwestern
Africa. It stretches from east of the Cape of Good Hope in the south to
the Angola Front to the north, where the Angola Front separates the
warm water of the Angola current from the cold Benguela water (Fennel
1999, p. 177). The Benguela ecosystem is an important center of marine
biodiversity and marine food production, and is one of the most
productive ocean areas in the world, with a mean annual primary
productivity about six times higher than that of the North Sea
ecosystem. The rise of cold, nutrient-rich waters from the ocean depths
to the warmer, sunlit zone at the surface in the Benguela produces rich
feeding grounds for a variety of marine and avian species. The Benguela
ecosystem historically supports a globally significant biomass of
zooplankton, fish, sea birds, and marine mammals, including the African
penguin's main diet of anchovy (Engraulius encrasicolus) and Pacific
sardine (Sardinops sagax) (Berruti et al. 1989, pp. 273-335).
The principal upwelling center in the Benguela ecosystem is
historically situated in southern Namibia, and is the most concentrated
and intense found in any upwelling regime. It is unique in that it is
bounded at both northern and southern ends by warm water systems, in
the eastern Atlantic and the Indian Ocean's Agulhas current,
respectively. Sharp horizontal gradients (fronts) exist at these
boundaries with adjacent ocean systems (Berruti et al. 1989, p. 276).
African penguins prey upon small fish, as well as squid and krill.
Studies conducted between 1953 and 1992 showed that anchovies and
sardines contributed 50 to 90 percent by mass of the African penguin's
diet (Crawford et al. 2006, p. 120). Trends in regional populations of
the African penguin have been shown to be related to long-term changes
in the abundance and distribution of these two fish species (Crawford
1998, p. 355; Crawford et al. 2006, p. 122).
Most spawning by anchovy and sardine takes place on the Agulhas
Bank, which is to the southeast of Robben Island, from August to
February (Hampton 1987, p. 908). Young-of-the-year migrate southward
along the west coast of South Africa from March until September, past
Robben Island to join shoals of mature fish over the Agulhas Bank
(Crawford 1980, p. 651). The southern Benguela upwelling system off the
west coast of South Africa is characterized by strong seasonal patterns
in prevailing wind direction, which result in seasonal changes in
upwelling intensity. To produce adequate survival of their young, fish
reproductive strategies are generally well-tuned to the seasonal
variability of their environment (Lehodey et al. 2006, p. 5011). In the
southern Benguela, intense wind-mixing transport of surface waters
creates an unfavorable environment for fish to breed. As a result, both
anchovy and sardine populations have developed a novel reproductive
strategy that is tightly linked to the seasonal dynamics of major local
environmental processes--spatial separation between spawning and
nursery grounds. For both species, eggs spawned over the western
Agulhas Bank (WAB) are transported to the productive west coast nursery
grounds via a coastal jet, which acts like a ``conveyor belt'' to
transport early life stages from the WAB spawning area to the nursery
grounds (Lehodey et al. 2006, p. 5011).
The distance that African penguins have to travel to find food
varies both temporally and spatially according to the season. Off
western South Africa, the mean foraging range of penguins that are
feeding chicks has been recorded to be 5.7 to 12.7 mi (9 to 20 km)
(Petersen et al. 2006, p. 14), mostly within 1.9 mi (3 km) of the coast
(Berruti et al. 1989, p. 307). Foraging duration during chick
provisioning may last anywhere from 8 hours to 3 days, the average
duration being around 10-13 hours (Petersen et al. 2006, p. 14). Travel
distance from the breeding colony is more limited when feeding young.
Outside the breeding season, adults generally remain within 248 mi (400
km) of their breeding locality, while juveniles regularly move in
excess of 621 mi (1,000 km) from their natal island (Randall 1989, p.
250).
During the non-breeding season, African penguins forage on the
Agulhas Bank. Underhill et al. (2007, p. 65) suggested that the molt
period of African penguins is closely tied to the spawning period of
sardine and anchovy at the Agulhas Bank. Pre-molt birds travel long
distances to the bank to fatten up during this time of the most
predictable food supply of the year. This reliable food source, and the
need to gain energy prior to molting, is hypothesized to be the most
important factor dictating the annual cycle of penguins. In fact, adult
birds are often observed to abandon large chicks in order to move into
this critical pre-molt foraging mode. The South African National
Foundation for the Conservation of Coastal Birds (SANCCOB) rescue
facility took in over 700 orphaned penguin chicks from Dyer Island in
2005-06. Parents abandoned chicks as they began to molt (SANCCOB 2006,
p. 1; SANCCOB 2007a, p. 1). The increasing observation of abandonment
is perhaps related to a slight trend
[[Page 77335]]
toward earlier molting seasons (Underhill et al. 2007, p. 65).
There has been a severe historical decline in African penguin
numbers in both the South African and Namibian populations. This
decline is accelerating at the present time. The species declined from
millions of birds in the early 1900s (1.4 million adult birds at Dassen
Island alone in 1910) (Ellis et al. 1998, p. 116) to 141,000 pairs in
1956-57 to 69,000 pairs in 1979-80 to 57,000 pairs in 2004-05, and to
about 36,188 pairs in 2006 (Kemper et al. 2007, p. 327). Crawford
(2007, in litt.) reported that from 2006-2007, the overall population
declined by 12 percent to 31,000 to 32,000 pairs.
The species is distributed in about 32 colonies in three major
clusters. In South Africa in 2006, there were 11,000 pairs in the first
cluster at the Eastern Cape, and about 21,000 in the second cluster at
the Western Cape colonies, with 13,283 of these pairs at Dassen Island
and 3,697 at Robben Island. South African totals were down from 32,786
pairs in 2006 to 28,000 pairs in 2007. There were about 3,402 pairs in
the third major cluster in Namibia. The Namibian population has
declined by more than 75 percent since the mid-20th century (from
42,000 pairs in 1956-57) and has been decreasing 2.5 percent per year
between 1990 (when there were 7,000 to 8,000 pairs) and 2005 (Kemper et
al. 2007, p. 327; Underhill et al. 2007, p. 65; Roux et al. 2007a, p.
55).
The African penguin is listed as `Vulnerable' on the 2007
International Union for Conservation of Nature (IUCN) Red List on the
basis of steep population declines (Birdlife International 2007, p. 1),
but given the 56 percent decline observed over 3 generations, there is
discussion in the most recent revision of the conservation status of
the species of changing that Red List status to `Endangered' if the
declines continue (Kemper et al. 2007, p. 327). That same assessment,
based on 2006 data, concluded that the Namibian population should
already be regarded as Red List `Endangered' by IUCN criteria with the
probability of extinction of the African penguin from this northern
cluster during the 21st century rated as high (Kemper et al. 2007, p.
327).
There are about 32 breeding colonies (Kemper et al. 2007, p. 327).
Breeding no longer occurs at eight localities where it formerly
occurred or has been suspected to occur--Seal, Penguin, North Long,
North Reef, and Albatross Islands in Namibia, and Jacobs Reef, Quoin,
and Seal (Mossel Bay) Islands in South Africa (Crawford et al. 1995a,
p. 269). In the 1980s, breeding started at two mainland sites in South
Africa (Boulder's Beach and Stony Point) for which no earlier records
of breeding exist. There is no breeding along the coast of South
Africa's Northern Cape Province, which lies between Namibia and Western
Cape Province (Ellis et al. 1998, p. 115).
Summary of Factors Affecting the Species
Section 4(a)(1) of the Act (16 U.S.C. 1533(a)(1)) and regulations
issued to implement the listing provisions of the Act (50 CFR part 424)
establish the procedures for adding species to the Federal lists of
endangered and threatened wildlife and plants. We may determine a
species 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. These factors
and their application to the African penguin are discussed below.
Factor A. The Present or Threatened Destruction, Modification, or
Curtailment of African Penguin's Habitat or Range
The habitat of the African penguin consists of terrestrial breeding
and molting sites and the marine environment, which serves as a
foraging range both during and outside of the breeding season.
Modification of their terrestrial habitat is a continuing threat to
African penguins. This began in the mid-1880s with the mining of
seabird guano at islands colonized by the African penguin and other
seabirds in both South Africa and Namibia. Harvesting of the guano cap
began in 1845 (du Toit et al. 2003, p. 3; Griffin 2005, p. 16) and
continued over decades, denuding the islands of guano. Deprived of
their primary nest-building material, the penguins were forced to nest
in the open, where their eggs and chicks are more vulnerable to
predators such as kelp gulls (Larus dominicanus) (Griffin 2005, p. 16).
Additionally, instead of being able to burrow into the guano, where
temperature extremes are ameliorated, penguins nesting in the open are
subjected to heat stress (Shannon and Crawford 1999, p. 119). Adapted
for life in cold temperate waters, they have insulating fatty deposits
to prevent hypothermia and black-and-white coloring that provides
camouflage from predators at sea. These adaptations cause problems of
overheating while they are on land incubating eggs and brooding chicks
during the breeding season. Although guano harvesting is now prohibited
in penguin colonies, many penguins continue to suffer from the lack of
protection and heat stress due to the loss of this optimal breeding
habitat substrate. We have not identified information on how quickly
guano deposits may build up again to depths which provide suitable
burrowing substrate, but hypothesize it is a matter of decades.
In Namibia, low-lying African penguin breeding habitat is being
lost due to flooding from increased coastal rainfall and sea level rise
of 0.07 inches (1.8 millimeters) a year over the past 30 years (Roux et
al. 2007b, p. 6). Almost 11 percent of the nests on the four major
breeding islands (which contain 96 percent of the Namibian population)
are experiencing a moderate to high risk of flooding (Roux et al.
2007b, p. 6). Continued increases in coastal flooding from rising sea
levels predicted by global and regional climate change models (Bindoff
et al. 2007, pp. 409, 412) are predicted to increase the number and
proportion of breeding sites at risk and lead to continued trends of
decreased survival and decreased breeding success (Roux et al. 2007b,
p. 6).
Competition for breeding habitat with Cape fur seals (Arctocephalus
pusillus pusillus) has been cited as a reason for abandonment of
breeding at five former breeding colonies in Namibia and South Africa,
and expanding seal herds have displaced substantial numbers of breeding
penguins at other colonies (Ellis et al. 1998, p. 120; Crawford et al.
1995a, p. 271).
Changes to the marine habitat present a significant threat to
populations of African penguins. African penguins have a long history
of shifting colonies and fluctuations in numbers at individual colonies
in the face of shifting food supplies (Crawford 1998, p. 362). These
shifts are related to the dynamics between prey species and to
ecosystem changes, such as reduced or enhanced upwelling (sometimes
associated with El Ni[ntilde]o events), changes in sea surface
temperature, or movement of system boundaries. In addition to such
continuing cyclical events, the marine habitats of the Western Cape and
Namibian populations of African Penguin are currently experiencing
directional ecosystem changes attributable to global climate change;
overall sea surface temperature increases have occurred during the
1900s and, as detailed above, sea level has been rising steadily in the
region over the past 30 years (Bindoff et al. 2007, p. 391; Fidel and
O'Toole 2007, pp. 22, 27; Roux et al. 2007a, p. 55).
At the Western Cape of South Africa, a shift in sardine
distribution to an area outside the current breeding range of the
[[Page 77336]]
African penguin has led to a decrease of 45 percent between 2004 and
2006 in the number of penguins breeding in the Western Cape and
increased adult mortality as the availability of sardine decreased for
the major portion of the African penguin population located in that
region (Crawford et al. 2007a, p. 8). From 1997 to the present, the
distribution of sardine concentrations off South Africa has steadily
shifted to the south and east, from its long-term location off colonies
at Robben Island to east of Cape Infanta on the southern coast of South
Africa east of Cape Agulhas, 248 mi (400 km) from the former center of
abundance (Crawford et al. 2007a, p. 1).
This shift is having severe consequences for penguin populations.
Off western South Africa, the foraging range of penguins that are
feeding chicks is estimated to be 5.7 to 12.7 mi (9 to 20 km) (Petersen
et al. 2006, p. 14), and while foraging they generally stay within 1.9
mi (3 km) of the coast (Berruti et al. 1989, p. 307). The southeastern
most Western Cape Colonies occur at Dyer Island, which is southeast of
Cape Town and about 47 mi (75 km) northwest of Cape Agulhas. Therefore,
the current sardine concentrations are out of the foraging range of
breeding adults at the Western Cape breeding colonies (Crawford et al.
2007a, p. 8), which between 2004 and 2006 made up between 79 and 68
percent of the rapidly declining South African population (Crawford et
al. 2007a, p. 7).
Further, as described in Crawford (1998, p. 360), penguin
abundances at these Western Cape colonies have historically shifted
north and south according to sardine and anchovy abundance and
accessibility from breeding colonies, but the current prey shift is to
a new center of abundance outside the historic breeding range of this
penguin species. While one new colony has appeared east of existing
Western Cape colonies, more significantly, there has been a 45 percent
decrease in breeding pairs in the Western Cape Province and a
significant decrease in annual survival rate for adult penguins from
0.82 to 0.68 (Crawford et al. 2007a, p. 8). Exacerbating the problem of
shifting prey, the authors reported that the fishing industry, which is
tied to local processing capacity in the Western Cape, is competing
with the penguins for the fish that remain in the west, rather than
following the larger sardine concentrations to the east (Crawford et
al. 2007a, pp. 9-10).
Changes in the northern Benguela ecosystem are also affecting the
less numerous Namibian population of the African penguin. Over the past
3 decades, sea surface temperatures have steadily increased and
upwelling intensity has decreased in the northern Benguela region.
These long-term changes have been linked to declines in penguin
recruitment at the four main breeding islands from 1993-2004 (Roux et
al. 2007a, p. 55). Weakened upwelling conditions have a particular
impact on post-fledge young penguins during their first year at sea,
explaining 65 percent of the variance in recruitment during that period
(Roux et al. 2007b, p. 9). These na[iuml]ve birds are particularly
impacted by increasingly scarce or hard-to-find prey. Even after heavy
fishing pressure has been eased in this region in the 1990s, sardine
stocks in Namibia have failed to recover, causing economic shifts for
humans and foraging difficulties for penguins. This failure to recover
has been attributed to the continuing warming trend and to increased
horse mackerel (Trachurus trachurus) stocks, which have replaced
sardines and anchovies (Benguela Current Large Marine Ecosystem (BCLME)
2007, pp. 2-3).
El Ni[ntilde]o events also impact the Benguela marine ecosystem on
a decadal frequency. These occur when warm seawater from the equator
moves along the southwest coast of Africa towards the pole and
penetrates the cold up-welled Benguela current. During the 1995 event,
for example, the entire coast from Angola's Cabinda province to central
Namibia was covered by abnormally warm water--in places up to 46
degrees Fahrenheit ([deg]F) (8 degrees Celsius ([deg]C)) above
average--to a distance up to 186 mi (300 km) offshore (Science in
Africa 2004, p. 2). During the last two documented events there have
been mass mortalities of penguin prey species, prey species recruitment
failures, and mass mortalities of predator populations, including
starvation of over half of the seal population. The penguin data sets
are not adequate to estimate the effects of Benguela El Ni[ntilde]o
events at present, but based on previous observations of impact on the
entire food web of the northern Benguela, they are most likely to be
negative (Roux et al. 2007b, p. 12). With increasing temperatures
associated with climate change in the northern Benguela ecosystem, the
frequency and intensity of Benguela El Ni[ntilde]o events and their
concomitant effects on the habitat of the African penguin are predicted
to increase in the immediate upcoming years as new El Ni[ntilde]o
events emerge (Roux et al. 2007b, p. 5).
A third factor in the marine habitat of the Namibian populations is
the extent of sulfide eruptions during different oceanographic
conditions. Hydrogen sulfide accumulates in bottom sediments and erupts
to create hypoxic (a reduced concentration of dissolved oxygen in a
water body leading to stress and death in aquatic organisms) or even
anoxic conditions over large volumes of the water column (Ludynia et
al. 2007, p. 43; Fidel and O'Toole 2007 p. 9). Penguins, whose foraging
range is restricted by the central place of their breeding colony
location (Petersen et al. 2006, p. 24), are forced to forage in these
areas, but their preferred prey of sardines and anchovies is unable to
survive in these conditions. African penguins foraging in areas of
sulfide eruptions expend greater amounts of energy in pursuit of
available food, primarily the pelagic goby (Sufflogobius bibarbatus),
which has lower energy content than their preferred prey. These
sulphide eruptions, like the El Ni[ntilde]o anomalies, are predicted to
increase with continuing climate change (Bakun and Weeks 2004, pp.
1021-1022; Ludynia et al. 2007, p. 43). The Namibian population of
African penguins, restricted in their breeding locations, will continue
to be negatively impacted by this ongoing regime shift away from
sardines and anchovies to pelagic goby and jellyfish.
We have identified a number of threats to the coastal and marine
habitat of the African penguin which have operated in the past, are
impacting the species now and will continue to impact the species in
the immediate coming years and into the future. On the basis of this
analysis, we find that the present and threatened destruction,
modification, or curtailment of both its terrestrial and marine
habitats is a threat to the African penguin throughout all of its
range.
Factor B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The current use of African penguins for commercial, recreational,
scientific, or educational purposes is generally low. Prior estimates
of commercial collection of eggs for food from Dassen Island alone were
500,000 in 1925, and more than 700,000 were collected from a number of
localities in 1897 (Shelton et al. 1984, p. 256). Since 1968, however,
commercial collection of penguin eggs for food has ceased.
There are unconfirmed reports of penguins being killed as use for
bait in rock-lobster traps. Apparently they are attractive as bait
because their flesh and skin is relatively tough compared to that of
fish and other baits. The extent of this practice is unknown, and most
reports
[[Page 77337]]
emanate from the Namibian islands (Ellis et al. 1998, p. 121). Use for
non-lethal, scientific purposes is highly regulated and does not pose a
threat to populations (See analysis under Factor D).
On the basis of this analysis, we find that overutilization for
commercial, recreational, scientific, or educational purposes is not a
threat to the African penguin in any portion of its range now or in the
foreseeable future.
Factor C. Disease or Predation
African penguins are hosts to a variety of parasites and diseases
(Ellis 1998, pp. 119-120), but we find that disease is not a threat to
the African penguin in any portion of its range. The primary concern is
preventing the transmission of disease from the large numbers of
African penguins rehabilitated after oiling to wild populations
(Graczyk et al. 1995, p. 706).
Predation by Cape fur seals of protected avian species has become
an issue of concern to marine and coastal managers in the Benguela
ecosystem as these protected seals have rebounded to become abundant
(1.5 to 2 million animals) (David et al. 2003, pp. 289-292). The seals
are killing substantial numbers of seabirds, including African penguins
and threatening the survival of individual colonies. At Dyer Island,
842 penguins in a colony of 9,690 individuals were killed in 1995-96
(Marks et al. 1997, p. 11). At Lambert's Bay, seals kill 4 percent of
adult African penguins annually (Crawford et al. 2006, p. 124). In one
instance, South Africa's Marine and Coastal Management Department
within the Department of Environmental Affairs and Tourism instigated
culling of the fur seals where they threatened the Cape Gannet (Morus
capensis) (David et al. 2003, p. 290), but we are not aware of a
similar program related to reducing the ongoing threat of predation by
Cape fur seals on African penguins. Abandoned eggs and chicks are often
lost to predators such as the kelp gull and other species.
Additionally, without protection of burrows, penguin eggs and chicks
are more vulnerable to predators (Griffin 2005, p. 16).
On the basis of this information, we find that predation, in
particular by Cape Fur Seals that prey on significant numbers of
African penguins at their breeding colonies, is a threat to the African
penguin throughout all of its range, and we have no reason to believe
the threat will be ameliorated in the foreseeable future.
Factor D. Inadequacy of Existing Regulatory Mechanisms
Under South Africa's Biodiversity Act of 2004, the African penguin
is classified as a protected species, defined as an indigenous species
of ``high conservation value or national importance'' that requires
national protection (Republic of South Africa 2004, p. 52; Republic of
South Africa 2007, p. 10). Activities which may be carried out with
respect to such species are restricted and cannot be undertaken without
a permit (Republic of South Africa 2004, p. 50). Restricted activities
include among other things, hunting, capturing, or killing living
specimens of listed species by any means, collecting specimens of such
species (including the animals themselves, eggs, or derivatives or
products of such species), importing, exporting or re-exporting, having
such specimens within one's physical control, or selling or otherwise
trading in such specimens (Republic of South Africa 2004, p. 18).
The species is classified as `endangered' in Nature and
Environmental Conservation Ordinance, No. 19 of the Province of the
Cape of Good Hope (Western Cape Nature Conservation Laws Amendment Act
2000, p. 88), providing protection from hunting or possessing this
species without a permit. According to Ellis et al. (1998, p. 115),
this status applies to the Northern Cape, Western Cape, and Eastern
Cape Provinces as well. Kemper et al. (2007, p. 326) reported that
African penguin colonies in South Africa are all protected under
authorities ranging from local, to provincial, to national park status.
While Ellis et al. (1998, p. 115) reported that in Namibia there is no
official legal status for African penguins, Kemper et al. (2007, p.
326) reported in a more recent review that all Namibian breeding
colonies are under some protection, from restricted access to national
park status. While we have no information that allows us to evaluate
their overall effectiveness, these national, regional, and local
measures to prohibit activities involving African penguins without
permits issued by government authorities and to control or restrict
access to African penguin colonies are appropriate to protecting
African penguins from land-based threats, such as harvest of penguins
or their eggs, disturbance from tourism activities, and impacts from
unregulated, scientific research activities.
The South African Marine Pollution (Control and Civil Liability)
Act (No. 6 of 1981) (SAMPA) provides for the protection of the marine
environment (the internal waters, territorial waters, and exclusive
economic zone) from pollution by oil and other harmful substances, and
is focused on preventing pollution and determining liability for loss
or damage caused by the discharge of oil from ships, tankers, and
offshore installations. The SAMPA prohibits the discharge of oil into
the marine environment, sets requirements for reporting discharge or
likely discharge and damage, and designates the South African Maritime
Safety Authority the powers of authority to take steps to prevent
pollution in the case of actual or likely discharge and to remove
pollution should it occur, including powers of authority to direct ship
masters and owners in such situations. The SAMPA also contains
liability provisions related to the costs of any measures taken by the
authority to reduce damage resulting from discharge (Marine Pollution
(Control and Civil Liability) Act of 1981 2000, pp. 1-22).
South Africa is a signatory to the 1992 International Convention on
Civil Liability for Oil Pollution Damages and its Associate Fund
Convention (International Fund for Animal Welfare (IFAW) 2005, p. 1),
and southern South African waters have been designated as a Special
Area by the International Maritime Organization, providing measures to
protect wildlife and the marine environment in an ecologically
important region used intensively by shipping (International Convention
for the Prevention of Pollution from Ships (MARPOL) 2006, p. 1). One of
the prohibitions in such areas is on oil tankers washing their cargo
tanks.
Despite these existing regulatory mechanisms, the African penguin
continues to decline due to the effects of habitat destruction,
predation, fisheries competition, and oil pollution. We find that these
regulatory and conservation measures have been insufficient to
significantly reduce or remove the threats to the African penguin and,
therefore, that the inadequacy of existing regulatory mechanisms is a
threat to this species throughout all of its range.
Factor E. Other Natural or Manmade Factors Affecting the Continued
Existence of the Species
Over the period from 1930 to the present, fisheries harvest by man
and more recently fisheries competition with increasingly abundant seal
populations have hindered the African penguin's historical ability to
rebound from oceanographic changes and prey regime shifts. The reduced
carrying
[[Page 77338]]
capacity of the Benguela ecosystem, presents a significant threat to
survival of African penguins (Crawford et al. 2007b, p. 574).
Crawford (1998, pp. 355-364) described the historical response of
African penguins to regime shifts between their two primary prey
species, sardines and anchovies, both in terms of numbers and colony
distribution from the 1950s through the 1990s. There was a repeated
pattern of individual colony collapse in some areas and, as the new
food source became dominant, new colony establishment and population
increase in other areas. Crawford (1998, p. 362) hypothesized that
African penguins have coped successfully with many previous sardine-
anchovy shifts. Specific mechanisms, such as the emigration of first-
time breeders from natal colonies to areas of greater forage abundance
may have historically helped them successfully adapt to changing prey
location and abundance. However, over the period from the 1930s to the
1990s, competition for food from increased commercial fish harvest and
from burgeoning fish take by recovering populations of the Cape fur
seal appears to have overwhelmed the ability of African penguins to
compete; the take of fish and cephalopods by man and seals increased by
2 million tons (T) (1.8 million tonnes (t)) per year from the 1930s to
the 1980s (Crawford 1998, p. 362). Crawford et al. (2007b, p. 574)
conclude that due to the increased competition with purse-seine (net)
fisheries and burgeoning fur seal populations, the carrying capacity of
the Benguela ecosystem for African penguins has declined by 80 to 90
percent from the 1920s to the present day. In the face of increased
competition and reduced prey resources, African penguin populations are
no longer rebounding successfully from underlying prey shifts, and they
have experienced sharply decreased reproductive success.
These negative effects of decreased prey availability on
reproductive success and on population size have been documented.
Breeding success of African penguins was measured at Robbin Island from
1989-2004 (Crawford et al. 2006, p. 119) in concert with hydro-acoustic
surveys to estimate the spawner biomass of anchovy and sardine off
South Africa. When the combined spawner biomass of fish prey was less
than 2 million T (1.8 million t), pairs of African penguins fledged an
average of only 0.46 chicks annually. When it was above 2 million T
(1.8 million t), annual breeding success had a mean value of 0.73
chicks per pair (Crawford et al. 2006, p. 119). The significant
relationships obtained between breeding success of African penguins and
estimates of the biomass of their fish prey confirm that reproduction
is influenced by the abundance of food (Adams et al. 1992, p. 969;
Crawford et al. 1999, p. 143). The levels of breeding success recorded
in the most recent studies of the African penguin were found to be
inadequate to sustain the African penguin population (Crawford et al.
2006, p. 119).
In addition to guano collection, as described in Factor A,
disturbance of breeding colonies may arise from other human activities
such as angling and swimming, tourism, and mining (Ellis et al. 1998,
p. 121). Such disturbances can cause the penguins to panic and desert
their nesting sites. Exploitation and disturbance by humans is probably
the reason for penguins ceasing to breed at four colonies, one of which
has since been re-colonized (Crawford et al. 1995b, p. 112). Burrows
can be accidentally destroyed by humans walking near breeding sites,
leading to penguin mortality.
Oil and chemical spills can have direct effects on the African
penguin. Based on previous incidents and despite national and
international measures to prevent and respond to oil spills referenced
in Factor D, we consider this to be a significant threat to the
species. African penguins live along the major global transport route
for oil and have been frequently impacted by both major and minor oil
spills. Since 1948, there have been 13 major oil spill events in South
Africa, each of which oiled from 500 to 19,000 African penguins. Nine
of these involved tanker collisions or groundings, three involved oil
of unknown origins, and one involved an oil supply pipeline bursting in
Cape Town harbor (Underhill 2001, pp. 2-3). In addition to these major
events, which are described in detail below, there is a significant
number of smaller spill events, impacting smaller number of birds.
These smaller incidental spills result in about 1,000 oiled penguins
being brought to SANCCOB, which has facilities to clean oiled birds,
over the course of each year (Adams 1994, pp. 37-38; Underhill 2001, p.
1). Overall, from 1968 to the present, SANCCOB (2007b, p. 2), has
handled more than 83,000 oiled sea birds, with the primary focus on
African penguins.
The most recent and most serious event, the Treasure spill,
occurred on June 23, 2000, when the iron ore carrier Treasure sank
between Robben and Dassen Islands, where the largest and third-largest
colonies of African penguin occur (Crawford et al. 2000, pp. 1-4).
Large quantities of oil came ashore at both islands. South Africa
launched a concerted effort to collect and clean oiled birds, to move
non-oiled birds away from the region, to collect penguin chicks for
artificial rearing, and to clean up oiled areas. Nineteen thousand
African penguins were oiled and brought for cleaning to the SANCCOB
facility. An additional 19,500 penguins were relocated to prevent them
from being oiled. A total of 38,500 birds were handled in the context
of this major oil spill. The last oil was removed from Treasure on July
18, 2000. Two months after the spill, mortality of African penguins
from the spill stood at 2,000 adults and immature birds and 4,350
chicks (Crawford et al. 2000, p. 9). The Avian Demography Unit (ADU) of
the University of Cape Town has undertaken long-term monitoring of
penguins released after spill incidents. Response in the Treasure spill
and success in rehabilitation have shown that response efforts have
improved dramatically. The next most serious spill of the Apollo Sea,
which occurred in June 1994, released about 2,401 T (2,177 t) of fuel
oil near Dassen Island. About 10,000 penguins were contaminated with
only 50 percent of these birds successfully de-oiled and put back in
the wild. Over the 10 years after this spill, the ADU followed banded
released birds to monitor their survival and reproductive histories
(Wolfaardt et al. 2007, p. 68). They found that success in restoring
oiled birds to the point that they attempt to breed after release has
steadily improved. The breeding success of restored birds and the
growth rates of their chicks, however, are lower than for non-oiled
birds. Nevertheless, because adults could be returned successfully to
the breeding population, they concluded that de-oiling and
reintroduction of adults are effective conservation interventions
(Wolfaardt et al. 2007, p. 68).
Therefore, we find that immediate and ongoing competition for food
resources with fisheries and other species, overall decreases in food
abundance, and ongoing severe direct and indirect threat of oil
pollution are threats to the African penguin throughout all of its
range.
Foreseeable Future
The term ``threatened species'' means any species (or subspecies
or, for vertebrates, distinct population segments) that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act does not define the
term ``foreseeable future.'' For the purpose of this
[[Page 77339]]
proposed rule, we defined the ``foreseeable future'' to be the extent
to which, given the amount and substance of available data, we can
anticipate events or effects, or reliably extrapolate threat trends,
such that we reasonably believe that reliable predictions can be made
concerning the future as it relates to the status of the species at
issue.
In considering the foreseeable future as it relates to the status
of the African 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). We also considered whether we could reliably predict any
future events (not yet acting on the species and therefore not yet
manifested in a trend) that might affect the status of the species.
The African penguin is in serious decline throughout its range, and
this decline is accelerating at the present time in all three
population clusters. We have identified a number of threats to the
coastal and marine habitat of the African penguin, and we predict that
these threats are reasonably likely to continue to result in African
penguin population declines in the foreseeable future. We have found
that predation by Cape Fur Seals is a threat to the African penguin
throughout all of its range, and we have no reason to believe the
threat will be ameliorated within the foreseeable future. We have found
that regulatory and conservation measures have been insufficient to
significantly reduce or remove the threats to the African penguin, and
we do not expect this to change in the foreseeable future. Finally, we
have found that competition for food resources with fisheries and other
species, decreases in food abundance, and severe direct and indirect
threats of oil pollution are threats to the African penguin, and based
on the information available, we have no reason to believe that these
threats will lessen in the foreseeable future.
African Penguin Finding
The African penguin is in serious decline throughout its range.
This decline is accelerating at the present time in all three
population clusters, with a one-year decrease of 12 percent from 2006-
2007 to between 31,000 to 32,000 breeding pairs, and an overall 3-year
decline of 45 percent from 2004-2007. These verified, accelerating, and
immediate declines, across all areas inhabited by African penguin
populations are directly attributable to ongoing threats that are
severely impacting the species at this time. Historical threats to
terrestrial habitat, such as destruction of nesting areas for guano
collection and the threat of direct harvest, have been overtaken by
long-term competition for prey from human fisheries beginning in the
1930s. This competition is now exacerbated by the increased role of
burgeoning Cape fur seal populations throughout the range in competing
with commercial fisheries for the prey of the African penguin (Crawford
1998, p. 362). In combination, competition with fisheries and fur seals
have reduced the carrying capacity of the marine environment for
African penguins to 10 to 20 percent of its 1920s value and by
themselves represent significant immediate threats to the African
penguin throughout all of its range.
Changes in the different portions of the range of the African
penguin are adding additional stressors to the overall declines in the
prey of African penguins. In Namibia, the fisheries declines in the
marine environment are being exacerbated by long-term declines in
upwelling intensities and increased sea surface temperatures. These
changes have hampered the recovery of sardine and anchovy populations
in the region even as fishing pressure on those species has been
relaxed, forcing penguins to shift to a less nutritious prey, the
pelagic goby. The changes have also forced a regime shift in the
Benguela ecosystem to other fish species, which are not the prey of
African penguins. The phenomenon of sulfide eruption has further
hampered the recovery of the food base.
In the Western Cape, in addition to the severe fisheries declines
and severe reduction of the carrying capacity of the marine
environment, the primary food source of African penguins has, beginning
in 1997, shifted consistently eastward to areas east of the
southernmost tip of South Africa. Over the past decade, the primary
food base for the most populous African penguin colonies in South
Africa has shifted outside the accessible foraging range for those
colonies. This shift has led to declines in penguin recruitment and
significant decreases in adult survival and represents an additional
significant immediate threat to the West Cape populations of the
African penguin.
On land, the effects of guano removal from penguin breeding islands
continue to be felt in lack of predator protection and heat stress in
breeding birds. Predation on penguins by kelp gulls and recovering Cape
fur seals has become a predominant threat factor. In Namibia, where
African penguin numbers are lowest, with only 3,402 pairs, low-lying
islands have experienced flooding from increased rainfall and rising
sea-levels, threatening 10 percent of the nests in the four major
breeding colonies, further stressing a species under severe immediate
threat from factors in the marine environment.
Finally, the marine and coastal habitat of the African penguin lies
on one of the world's busiest sea lanes. Despite improvements in oil
spill response capability and global recognition of the importance of
protecting these waters from the impacts of oil, catastrophic and
chronic spills have been and continue to be the norm. The most recent
catastrophic spill in 2000 in South Africa resulted in the oiling of
19,000 penguins and the translocation of 19,500 more birds in direct
danger from the spill. With the global population at a historical low
(between 31,000 and 32,000 pairs), future oil spills, which consistent
experience shows may occur at any time, pose a significant and
immediate threat to the species throughout all of its range.
We have carefully assessed the best scientific and commercial
information available regarding the threats faced by this species. The
African penguin is in serious decline throughout all of its range, and
the decline is currently accelerating. This decline is due to threats
of a high magnitude--(1) The immediate impacts of a reduced carrying
capacity for the African penguin throughout its range due to fisheries
declines and competition for food with Cape fur seals (severely
exacerbated by rapid ongoing ecosystem changes in the marine
environment at the northern end of the penguin's distribution and by
major shifts of prey resources to outside of the accessible foraging
range of breeding penguins at the southern end of distribution); (2)
the continued threats to African penguins on land throughout their
range from habitat modification and destruction and predation; and (3)
the immediate and ongoing threat of oil spills and oil pollution to the
African penguin. The severity of these threats to the African penguin
within its breeding and foraging range puts the species in danger of
extinction. Therefore, we find that the African penguin is in danger of
extinction throughout all of its range.
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
[[Page 77340]]
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 African penguin is not native to the United
States, no critical habitat is being proposed for designation in this
rule.
Section 8(a) of the Act authorizes limited financial assistance for
the development and management of programs that the Secretary of the
Interior determines to be necessary or useful for the conservation of
endangered and threatened species in foreign countries. Sections 8(b)
and 8(c) of the Act authorize the Secretary to encourage conservation
programs for foreign endangered species and to provide assistance for
such programs in the form of personnel and the training of personnel.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered and
threatened wildlife. As such, these prohibitions would be applicable to
the African penguin. These prohibitions, under 50 CFR 17.21, make it
illegal for any person subject to the jurisdiction of the United States
to ``take'' (take includes harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, collect, or to attempt any of these) within the
United States or upon the high seas, import or export, deliver,
receive, carry, transport, or ship in interstate or foreign commerce in
the course of a commercial activity, or to sell or offer for sale in
interstate or foreign commerce, any endangered wildlife species. It
also is illegal to possess, sell, deliver, carry, transport, or ship
any such wildlife that has been taken in violation of the Act. Certain
exceptions apply to agents of the Service and State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered and threatened wildlife species under certain
circumstances. Regulations governing permits are codified at 50 CFR
17.22 for endangered species, and at 17.32 for threatened species. With
regard to endangered wildlife, a permit must be issued for the
following purposes: for scientific purposes, to enhance the propagation
or survival of the species, and for incidental take in connection with
otherwise lawful activities.
Peer Review
In accordance with our joint policy with National Marine Fisheries
Service, ``Notice of Interagency Cooperative Policy for Peer Review in
Endangered Species Act Activities,'' published in the Federal Register
on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at
least three appropriate independent specialists regarding this proposed
rule. The purpose of peer review is to ensure that our proposed rule is
based on scientifically sound data, assumptions, and analyses. We will
send copies of this proposed rule to the peer reviewers immediately
following publication in the Federal Register. We will invite these
peer reviewers to comment during the public comment period, on our
specific assumptions and conclusions regarding the proposal to list the
African penguin as endangered.
We will consider all comments and information we receive during the
comment period on this proposed rule during our preparation of a final
determination. Accordingly, our final decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if we receive any requests for hearings. We must receive your request
for a public hearing within 45 days after the date of this Federal
Register publication (see DATES). Such requests must be made in writing
and be addressed to the Chief of the Division of Scientific Authority
at the address shown in the FOR FURTHER INFORMATION CONTACT section. We
will schedule public hearings on this proposal, if any are requested,
and announce the dates, times, and places of those hearings, as well as
how to obtain reasonable accommodations, in the Federal Register at
least 15 days before the first hearing.
Required Determinations
Regulatory Planning and Review (Executive Order 12866)
The Office of Management and Budget has determined that this rule
is not significant under Executive Order 12866.
National Environmental Policy Act (NEPA)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be
prepared in connection with regulations adopted under section 4(a) of
the Act. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244).
Clarity of the Rule
We are required by Executive Orders 12866 and 12988, and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
References Cited
A complete list of all references cited in this proposed rule is
available on the Internet at http://www.regulations.gov or upon request
from the Division of Scientific Authority, U.S. Fish and Wildlife
Service (see FOR FURTHER INFORMATION CONTACT).
Author
The authors of this proposed rule are staff of the Division of
Scientific Authority, U.S. Fish and Wildlife Service (see FOR FURTHER
INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.11(h) by adding a new entry for ``Penguin,
African,'' in
[[Page 77341]]
alphabetical order under ``BIRDS'' to the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Birds
* * * * * * *
Penguin, African................. Spheniscus demersus. Atlantic Ocean-- Entire............. E ........... NA NA
South Africa,
Namibia.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
Dated: December 2, 2008.
H. Dale Hall,
Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-29676 Filed 12-17-08; 8:45 am]
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