[Federal Register: June 9, 2010 (Volume 75, Number 110)]
[Proposed Rules]
[Page 32728-32734]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jn10-24]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2010-0035]
[MO-92210-0-0008-B2]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To List van Rossem's Gull-billed Tern as Endangered or
Threatened.
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of petition finding and initiation of status review.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to list van Rossem's gull-billed tern
(Gelochelidon nilotica vanrossemi) as an endangered or threatened
species under the Endangered Species Act of 1973, as amended (Act), and
to designate critical habitat. Based on our review, we find the
petition provides substantial scientific or commercial information
indicating that listing this subspecies may be warranted. Therefore,
with the publication of this notice, we are initiating a review of the
status of the subspecies to determine if listing is warranted. To
ensure that this status review is comprehensive, we are requesting
scientific and commercial data and other information regarding this
subspecies. Based on the status review, we will issue a 12-month
finding on the petition, which will address whether the petitioned
action is warranted, as provided in section 4(b)(3)(B) of the Act.
DATES: To allow us adequate time to conduct this review, we request
that we receive information on or before August 9, 2010. Please note
that if you are using the Federal eRulemaking Portal (see ADDRESSES
section, below) the deadline for submitting an electronic comment is
11:59 p.m. Eastern Daylight Savings Time on this date.
After August 9, 2010, you must submit information directly to the
Field Office (see the FOR FURTHER INFORMATION CONTACT section below).
Please note that we may not be able to address or incorporate
information that we receive after the above requested date.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. In
the box that reads ``Enter Keyword or ID,'' enter the Docket number for
this finding, which is FWS-R8-ES-2010-0035. Check the box that reads
``Open for Comment/Submission,'' and then click the Search button. You
should then see an icon that reads ``Submit a Comment.'' Please ensure
that you have found the correct rulemaking before submitting your
comment.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R8-ES-2010-0035; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will post all information received on http://
www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Request for Information
section below for more details).
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad,
California 92011; by telephone at 760-431-9440; or by facsimile to 760-
431-9624. If you use a telecommunications device for the deaf (TDD) may
call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
[[Page 32729]]
Request for Information
When we make a finding that a petition presents substantial
information indicating that listing a species may be warranted, we are
required to promptly review the status of the species (status review).
For the status review to be complete and based on the best available
scientific and commercial information, we request information on van
Rossem's gull-billed tern from governmental agencies, Native American
Tribes, the scientific community, industry, and any other interested
parties. We seek information on:
(1) The subspecies' biology, range, and population trends,
including:
(a) Habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the subspecies or
its habitat or both.
(2) The factors that are the basis for making a listing
determination for a species under section 4(a) of the Endangered
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which
are:
(a) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued
existence.
(3) Information relevant to the taxonomic status of this or related
subspecies of gull-billed terns (particularly of the gull-billed terns
nesting in western North America), or whether any population segments
of gull-billed terns are discrete or significant under our policy
(Policy Regarding the Recognition of Distinct Vertebrate Population
Segments under the Endangered Species Act, 61 FR 4722; February 7,
1996).
(4) Information regarding the geographic structure of van Rossem's
gull-billed tern populations and whether any portion or portions of the
range may be considered significant, and why.
(5) The potential effects of climate change on this species and its
habitat.
If, after the status review, we determine that listing the van
Rossem's gull-billed tern is warranted, we will propose critical
habitat (see definition in section 3(5)(A) of the Act), under section 4
of the Act, to the maximum extent prudent and determinable at the time
we propose to list the species. Therefore, within the geographical
range currently occupied by van Rossem's gull-billed tern, we request
data and information on:
(1) What may constitute ``physical or biological features essential
to the conservation of the species,''
(2) Where these features are currently found, and
(3) Whether any of these features may require special management
considerations or protection.
In addition, we request data and information on ``specific areas
outside the geographical area occupied by the species'' that are
``essential for the conservation of the species.'' Please provide
specific comments and information as to what, if any, critical habitat
you think we should propose for designation if the species is proposed
for listing, and why such habitat meets the requirements of section 4
of the Act.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Submissions merely stating support for or opposition to the action
under consideration without providing supporting information, although
noted, will not be considered in making a determination. Section
4(b)(1)(A) of the Act directs that determinations as to whether any
species is an endangered or threatened species must be made ``solely on
the basis of the best scientific and commercial data available.''
You may submit your information concerning this status review by
one of the methods listed in the ADDRESSES section. If you submit
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the
website. If you submit a hardcopy that includes personal identifying
information, you may request at the top of your document that we
withhold this personal identifying information from public review.
However, we cannot guarantee that we will be able to do so. We will
post all hardcopy submissions on http://www.regulations.gov.
Information and supporting documentation that we received and used
in preparing this finding, will be available for you to review at
http://www.regulations.gov, or you may make an appointment during
normal business hours at the U.S. Fish and Wildlife Service, Carlsbad
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Background
Section 4(b)(3)(A) of the Act requires that we make a finding on
whether a petition to list, delist, or reclassify a species presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted. We are to base this finding on
information provided in the petition, supporting information submitted
with the petition, and information otherwise available in our files. To
the maximum extent practicable, we are to make this finding within 90
days of our receipt of the petition and publish our notice of the
finding promptly in the Federal Register.
Our standard for substantial scientific or commercial information
within the Code of Federal Regulations (CFR) with regard to a 90-day
petition finding is ``that amount of information that would lead a
reasonable person to believe that the measure proposed in the petition
may be warranted'' (50 CFR 424.14(b)). If we find that substantial
scientific or commercial information was presented, we are required to
promptly commence a review the status of the species, which is
subsequently summarized in our 12-month finding.
Petition History
On June 8, 2009, we received a petition from the Center for
Biological Diversity requesting that we list the ``western'' or ``van
Rossem's'' subspecies of gull-billed tern throughout its range as
endangered or threatened under the Act, and that we designate critical
habitat concurrent with listing (CBD 2009, pp. 1-40). The petition
clearly identified itself as such and included the requisite
identification information for the petitioner, as required by 50 CFR
424.14(a). In an August 18, 2009, letter to the petitioner, we
responded that we had reviewed the information presented in the
petition and determined that issuing an emergency regulation listing
the subspecies under section 4(b)(7) of the Act was not warranted. This
finding addresses the petition.
Previous Federal Actions
We included van Rossem's gull-billed tern as a Category 2 candidate
in our November 15, 1994, notice of candidate review (59 FR 58982).
Category 2 taxa were defined as those taxa for which information in the
possession of the Service, at that time, indicated that proposing to
list as endangered or threatened was possibly appropriate but for which
persuasive data on biological
[[Page 32730]]
vulnerability and threats were not available to support proposed rules.
In the February 28, 1996, notice of candidate review (61 FR 7596), we
announced our decision to discontinue recognition of Category 2
candidates, including van Rossem's gull-billed tern. This decision was
made final on December 5, 1996 (61 FR 64481). Since that time, van
Rossem's gull-billed tern has not been treated as a candidate for
Federal listing under the Act.
In 2002 and 2008, pursuant to the Fish and Wildlife Conservation
Act of 1980, as amended (16 U.S.C. 2901 et seq.), our Division of
Migratory Bird Management included the gull-billed tern (the species as
a whole) in the list of Birds of Conservation Concern (USFWS 2002, pp.
1-99; USFWS 2008, pp. 1-87). The species was included as a Bird of
Conservation Concern both nationally and in certain specific Bird
Conservation Regions, including the U.S. portions of Bird Conservation
Regions 32 (Coastal California) and 33 (Sonoran and Mojave Deserts)
(USFWS 2008, pp. 48 and 49). The gull-billed tern that occurs in Bird
Conservation Regions 32 and 33 is Gelochelidon nilotica vanrossemi.
Species Information
The van Rossem's gull-billed tern is a medium-sized seabird. It is
one of two subspecies of gull-billed tern in North America (Molina
2008, p. 188) and six worldwide (Parnell et al. 1995, p. 3). Scientists
with the U.S. Geological Survey are finalizing a study that may help
identify additional information regarding the eastern and western North
American subspecies; we anticipate looking into this further in the
status review. Bancroft (1929, pp. 283-286) described Gelochelidon
nilotica vanrossemi from specimens collected at the Salton Sea,
Imperial County, California. Van Rossem's gull-billed tern differs from
the nominate subspecies of the Old World (G. n. nilotica) by its
shorter tail and bill shape (less angular gonys), and from the
subspecies of eastern North America (G. n. aranea) by its ``decidedly
larger size'' (Bancroft 1929, p. 284).
Van Rossem's gull-billed tern is migratory. During the spring and
summer, it nests locally along the Pacific coast of Mexico including
the Gulf of California. An additional coastal nest colony is located in
San Diego Bay, San Diego County, California. Nest colonies are also
located at inland localities in northeastern Baja California, Mexico,
and at the Salton Sea, Imperial County, California. The Salton Sea and
San Diego Bay are the only nesting areas for the subspecies in the
United States (Molina and Erwin 2006, p. 273). The extent of the winter
range for the subspecies is not known but likely includes the Pacific
coast of Mexico, Central America, and possibly northwestern South
America (Molina and Erwin 2006, p. 272).
Gull-billed terns, including van Rossem's gull-billed terns, nest
in colonies of 20 to 50 pairs, although numbers may vary (Parnell et
al. 1995, p. 9). Nests consist of shallow scrapes with simple
adornments (such as rocks, shells, fish bones) (Parnell et al. 1995, p.
10). Nesting habitat for van Rossem's gull-billed terns consists of
low, open areas on natural and artificial beaches, islands, and levees
with no or sparse vegetation (Parnell et al. 1995, pp. 5 and 10;
Palacios and Mellink 2007, p. 215). At San Diego Bay and the Salton
Sea, van Rossem's gull-billed terns typically lay 2 to 3 eggs per
clutch (Parnell et al. 1995, p. 12). The egg incubation period is 22 to
23 days, and the young fledge after 28 to 35 days (Parnell et al. 1995,
p. 11). Fledglings remain dependent upon their parents for at least 4
weeks after fledging, and probably longer (Parnell et al. 1995, p. 12).
Like other terns, gull-billed terns (including van Rossem's gull-
billed tern) are predators, but they differ from most other tern
species in how they forage and in the types of prey they consume.
Unlike many other tern species that eat only fish caught by shallow
dives into water, gull-billed terns forage on a variety of prey items
found in different habitat types: (1) Gull-billed terns in flight
capture flying insects in the air (Parnell et al. 1995, p. 5); (2) they
swoop down and snatch up terrestrial prey (such as crabs, lizards,
insects, or chicks of other birds) and aquatic prey (such as small
fish) near the water's surface (Parnell et al. 1995, p. 5; Molina and
Marschalek 2003, p. i); and (3) they land to pick up prey items
(Parnell et al. 1995, p. 5). Van Rossem's gull-billed tern is
predominantly a coastal bird, but it does occur at certain inland sites
with aquatic resources (Parnell et al. 1995, p. 5; Molina and Erwin
2006, p. 284). The foraging habitat of van Rossem's gull-billed terns
consists of ``open mudflats in tidal estuaries, river margins, beaches,
salt marshes, freshwater marshes, aquacultural impoundments (such as
shrimp ponds), and a variety of upland habitats including open scrub,
pasturelands and irrigated agricultural fields and associated drains,''
and the airspace over such areas (Molina and Erwin 2006, p. 284;
Parnell et al. 1995, pp. 4-5).
Evaluation of Information for This Finding
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations in the Code of Federal Regulations (CFR) at 50 CFR 424, set
forth the procedures for adding species to the Federal Lists of
Endangered and Threatened Wildlife and Plants. A species may be
determined to be an endangered or threatened species due to one or more
of the five factors described in section 4(a)(1) of the Act:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
In making this 90-day finding, we first evaluated information
presented in the petition and other information available in our files
on the taxonomic status of the subspecies petitioned. We then evaluated
whether information regarding threats to the van Rossem's gull-billed
tern, as presented in the petition and other information available in
our files, is substantial, thereby indicating that the petitioned
action may be warranted. Our evaluation of this information is
presented below.
The petitioner requests that the Service list Gelochelidon nilotica
vanrossemi (van Rossem's gull-billed tern) as endangered or threatened
(CBD 2009, p. 1). The petitioner does not specifically address a
taxonomic or geographical scope at a level lower than subspecies or the
subspecies' entire range; that is, the petitioner does not address any
potential distinct population segments, nor does the petitioner
identify any portions of the subspecies' range as significant.
Therefore, we evaluated the petition as a petition to list the
subspecies as endangered or threatened throughout its range.
The petition states that the validity of the subspecies has not
been questioned (CBD 2009, p. 4). However, information in the
scientific literature shows that some authors have questioned the
validity (distinctiveness) of van Rossem's gull-billed tern. These
include: (1) Grinnell and Miller (1944, p. 172), who, based on
conflicting information available at the time, stated that they ``do
not recognize a western race'' (i.e., subspecies); (2) Unitt (2004, p.
249), who questioned the taxon's distinctiveness based on measurements
[[Page 32731]]
presented in Parnell et al. (1995, p. 3); and (3) Pyle (2008, p. 706),
who considered the morphological differences of the western North
American birds to be ``too slight for subspecific recognition.'' In
contrast, other authors did not question the distinctiveness of the
vanrossemi subspecies. For example, the American Ornithologists' Union
(AOU) Committee on Classification and Nomenclature (AOU Committee), the
long-standing scientific body responsible for standardizing North
American avian taxonomy, recognized the vanrossemi subspecies in its
1957 (fifth) edition of its check-list of North American birds, which
was the last time the AOU Committee explicitly addressed subspecies
(AOU 1957, p. 233). More recently, Patten et al. (2003, p. 188), who
critically reviewed the taxonomy of subspecies presented in their book
on the birds of the Salton Sea region (Patten et al. 2003, p. 71), also
recognized the subspecies. Thus, the scientific literature readily
available in our files is not consistent regarding the distinctiveness
of van Rossem's gull-billed tern. We will address van Rossem's gull-
billed tern for the purposes of evaluating the petitioned action;
however, to ensure that the status review is comprehensive, we are
soliciting scientific and commercial information regarding the
distinctiveness and taxonomic status of van Rossem's gull-billed tern
especially compared to those gull-billed terns that nest and winter
along the west coast of North America.
A. The Present or Threatened Destruction, Modification, or Curtailment
of the Species' Habitat or Range
Information Provided in the Petition
The petitioner asserts that van Rossem's gull-billed tern is
threatened by loss of nesting and foraging habitat (CBD 2009, p. 8). In
the San Diego Bay area, the petitioner notes that nesting habitat used
by van Rossem's gull-billed tern lies predominantly within the
boundaries of the San Diego Bay National Wildlife Refuge (Refuge), and
thereby is protected from development. However, its foraging habitat is
found outside the Refuge boundaries and is subject to impacts from
recreation and military training activities (CBD 2009, p. 8). The
petitioner claims that tern nesting and foraging habitat at the Salton
Sea is threatened by declining water levels because of reduction of
inflows. The petitioner notes inflows to the Salton Sea have declined
due to the reduced availability of irrigation water; less irrigation
water is available from the Colorado River, and a portion of what water
is available is being transferred from the Imperial Valley agricultural
areas to the San Diego region for municipal use. The petitioner claims
the amount of nesting habitat is reduced because the reduced inflow
into the Salton Sea is causing former nesting islands to become part of
the mainland; this allows access by land predators and increased wind-
blown dust (CBD 2009, p. 9). Also, foraging habitat for the tern, the
petitioner asserts, is threatened at the Salton Sea by degradation of
water quality and a reduction in the amount of irrigated agricultural
areas (CBD 2009, p. 9). The petitioner also asserts the effects of
global climate change, including sea-level rise, shoreline erosion, and
changes in vegetation, threatens the van Rossem's gull-billed tern's
nesting habitat, foraging habitat, or both (CBD 2009, p. 10). Finally,
the petitioner asserts nesting and foraging habitat in Mexico for this
subspecies is threatened by commercial aquaculture development,
tourism-related development, development of evaporation ponds for
commercial salt production (saltworks), flooding from beach erosion,
and fluctuating water levels in water impoundments (CBD 2009, pp. 9 and
10).
Evaluation of Information Provided in the Petition and Available in
Service Files
The petitioner cited several publications to support assertions
made in the petition; however, the petitioner did not include reference
information for some citations (such as Schwabe et al. 2008). We
reviewed cited and referenced publications that were readily available
in our files, including Terp and Pavelka (1999, pp. 1-23), Molina and
Erwin (2006, pp. 271-295), USFWS (2006, pp. 1-1 through 8-2), and
Palacios and Mellink (2007, pp. 214-222). In general, we find
substantive information suggesting that the assertions made by the
petitioner are accurate. In particular, Molina and Erwin (2006, pp.
284-287) and Palacios and Mellink (2007, pp. 215-221) identified
destruction of nesting and foraging habitat from coastal development as
a threat to the subspecies.
Destruction and modification of nesting and foraging habitat may
affect the subspecies by reducing the amount of available nesting and
foraging habitats. Such reductions in nesting habitat may force van
Rossem's gull-billed terns to nest in sub-optimal habitat subject to
disturbance or other threats, which may subsequently affect the
subspecies' reproductive success (Molina and Erwin 2006, p. 285). Also,
van Rossem's gull-billed terns need foraging habitat close to nesting
habitat so that adults can efficiently feed their young (Molina and
Erwin 2006, p. 284). Destruction and modification of foraging habitat
in the nesting range may further reduce the van Rossem's gull-billed
terns' reproductive success. If reproductive rates are reduced enough,
the overall population of the subspecies may be reduced. Additionally,
the range of the subspecies may be curtailed by habitat destruction.
The petitioner provided information, which is corroborated by
information readily available in our files, that destruction and
modification of van Rossem's gull-billed tern habitat has occurred and
is likely to continue in the future. Therefore, we find the petition
and readily available information in our files presents substantial
information indicating that the present or threatened destruction,
modification, or curtailment of nesting or foraging habitat may be a
significant threat to the van Rossem's gull-billed tern.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Information Provided in the Petition
The petitioner, citing information in the scientific literature
(Gonzalez-Bernal et al. 2003, and Palacios and Mellink 2007), asserts
that van Rossem's gull-billed terns are threatened by people collecting
eggs, chicks, or both at certain nest sites in Mexico (CBD 2009, p.
12).
Evaluation of Information Provided in the Petition and Available in
Service Files
We reviewed Gonzalez-Bernal et al. (2003, pp. 175-177) and Palacios
and Mellink (2007, pp. 214-222). Both indicate the eggs and young of
colonial waterbirds, potentially including van Rossem's gull-billed
terns, have been utilized for commercial or subsistence purposes
(Gonzalez-Bernal et al. 2003, p. 177; Palacios and Mellink 2007, pp.
216). This use of eggs and young results in the death of embryos and
nestlings, which, depending on the amount of this use, could
significantly reduce the reproductive success of nesting colonial
waterbirds. If such use affects van Rossem's gull-billed terns and if
utilization rates are high enough, the status of the subspecies may be
affected. While it is unclear whether or to what extent this threat
affects the van Rossem's gull-billed tern, we find the petition and
readily available
[[Page 32732]]
information in our files presents substantial information indicating
that overutilization of van Rossem's gull-billed tern eggs and
nestlings may be a significant threat to the subspecies.
C. Disease or Predation
Information Provided in the Petition
Disease--The petitioner notes that there is ``little to no existing
literature on the prevalence of disease in [van Rossem's] gull-billed
terns'' (CBD 2009, p. 12). However, the petitioner suggests that West
Nile virus is a possible threat to van Rossem's gull-billed tern (CBD
2009, p. 12). Additionally, the petitioner implies that van Rossem's
gull-billed tern may be susceptible to disease by noting that a number
of other bird species that may be found near van Rossem's gull-billed
tern's nesting and foraging areas in southern California suffered
illness and mortality during a 2004 outbreak of an unknown illness
(although the petitioner notes that it may have been a result of
contamination) (CBD 2009, p. 21).
Predation--The petitioner asserts that predation is a threat to van
Rossem's gull-billed tern throughout its range, noting a number of
potential and documented predator species (CBD 2009, pp. 10-12). The
petitioner cites several sources from the scientific literature
documenting predation on the subspecies.
Evaluation of Information Provided in the Petition and Available in
Service Files
Disease--Diseases occur naturally in wildlife populations, but the
occurrence of a disease within the range of a species does not
necessarily mean that it is deleterious to that species. However, if
one or more diseases are virulent enough, the status of the subspecies
will be affected. We reviewed the petition and information in our files
and did not find substantial information to indicate that disease may
be a threat to the subspecies; however, we will investigate the
potential impact of disease, including West Nile virus, during the
status review for the subspecies.
Predation--The petitioner cites several published and unpublished
documents to support the assertions of predation as a potential threat;
however, the petitioner did not include reference information for some
citations (such as Blus and Stafford 1980, Eyler et al. 1999, and
O'Connell and Beck 2003). We reviewed the publications that were
readily available in our files, including Parnell et al. (1995, pp. 8
and 13), Molina and Erwin (2006, pp. 285-286), and Palacios and Mellink
(2007, pp. 216-219). Based on the review of these sources, we found
information suggesting that the assertions made by the petitioner
regarding the occurrences of predation are generally accurate. Although
not articulated by the petitioner, we note that these sources indicate
that predation is primarily of eggs or young at nest sites (or ``nest
predation''), although the petitioner also alluded to predation of
adult terns (CBD 2009, pp. 11-12).
Predators kill prey for food. Nearly all species are subject to
predation under natural conditions. A high level of nest predation at a
van Rossem's gull-billed tern nest colony could significantly reduce
the reproductive success of the subspecies at that site. Also, high
levels of predation on adult gull-billed tern's could significantly
affect the population of the subspecies as a whole. If predation rates
are high enough, the status of the subspecies may be affected. We
reviewed the petition and information in our files and did not find
substantial information to indicate that predation may be a threat to
the subspecies; however, we will further evaluate the potential effects
of predation on the status of the van Rossem's gull-billed tern as we
conduct our status review.
D. The Inadequacy of Existing Regulatory Mechanisms
Information Provided in the Petition
The petitioner identifies three existing Federal regulatory
mechanisms in the United States that may provide some conservation
benefit for van Rossem's gull-billed tern. These are: (1) The Migratory
Bird Treaty Act (16 U.S.C. 703-712), (2) the Fish and Wildlife
Conservation Act (16 U.S.C. 2901 et seq.), and (3) Executive Order
13186. The petitioner also identifies one existing State regulatory
mechanism (the State of California's list of Bird Species of Special
Concern) and one existing regulatory mechanism in Mexico (the 1936
international treaty between the United States and Mexico for the
protection of Migratory Birds and Game Mammals). The petitioner asserts
that none of these existing regulatory mechanisms are adequate to
conserve van Rossem's gull-billed tern (CBD 2009, pp. 22-24). To
illustrate the asserted inadequacy, the petitioner includes several
examples of past management actions under Service-issued permits that
resulted in the death of van Rossem's gull-billed terns. These
management actions were for protection of endangered and threatened
species and to reduce the risk of bird airstrike hazards at an airport
runway (CBD 2009, p. 22). The petitioner also notes there have been
proposals for additional actions to manage gull-billed terns.
Evaluation of Information Provided in the Petition and Available in
Service Files
The petitioner cites several published and unpublished sources, but
most of the references readily available in our files are of the
regulatory mechanisms themselves, and few readily available references
evaluate whether regulatory mechanisms to protect van Rossem's gull-
billed tern are adequate. However, we note that Molina 2008 (p. 190)
corroborates the petitioner's assertion that lethal control has been
used on van Rossem's gull-billed terns in response to a potential
airstrike hazard. Additionally, the Service has proposed to manage van
Rossem's gull-billed tern populations that prey on other federally
listed species on San Diego Bay National Wildlife Refuge, which is
evidence that supports the petitioner's assertion that such examples of
management may continue into the future.
In general, application of Factor D, assumes two pre-existing
conditions: (1) One or more threats exist that are severe enough to
affect the status of the species, such existing threats would fall
under at least one of the other listing factors (Factors A, B, C, or
E); and (2) one or more regulatory mechanisms exist that address in
some way the aforementioned threat or threats. Existing regulatory
mechanisms can be inadequate, and thus considered to be a ``threat'' to
the species under Factor D in two ways: (1) The regulatory mechanism is
inherently inadequate to reduce the severity of the existing threat or
threats to a point that such threats do not affect the status of the
species; or (2) the regulatory mechanism is not inherently inadequate
to address the threat or threats, but enforcement of that regulatory
mechanism is lacking or wanting, thus making the existing regulatory
mechanism inadequate to reduce the severity of the existing threat or
threats to a point that those threats affect the status of the species.
The petitioner asserts that threats under Factors A, B, C, and E
are affecting the status of the species; we have found substantial
evidence to support the assertions for Factors A, B and E (see our
discussion under those factors). The petitioner has identified that
regulatory mechanisms exist and asserts that such mechanisms are
inadequate, either because of inherent flaw in the mechanism with
respect to the threat or because of inadequate enforcement. As we noted
above,
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instead of providing an analysis of how the regulatory mechanisms are
inadequate, the petitioner supports the assertions by providing
examples, which we find are accurate, at least to some extent. We
believe the provided examples are enough to lead a reasonable person to
conclude that existing regulatory mechanisms may be inadequate.
Therefore, we find the petition and readily available information in
our files presents substantial information indicating that the
inadequacy of existing regulatory mechanisms to protect the van
Rossem's gull-billed tern may be a significant threat to the
subspecies.
E. Other Natural or Manmade Factors Affecting the Species' Continued
Existence
Information Provided in the Petition
The petitioner, citing a variety of published and unpublished
sources and supplying several examples, asserts a number of natural and
manmade factors affect the continued existence of van Rossem's gull-
billed tern. Below, we summarize and group the petitioner's claims into
the following categories:
The effects of other colonial-nesting bird species on van
Rossem's gull-billed terns at nest sites, including competition for
nesting space, disturbance of adults or young, or harm of eggs or
chicks (CBD 2009, pp. 11 and 19) of the van Rossem's gull-billed tern.
Disturbance of van Rossem's gull-billed terns at nest
sites caused by the actions of humans, livestock, or dogs (CBD 2009, p.
13).
Intentional killing or other take (as defined under
section 3 of the Act) of individual van Rossem's gull-billed tern
adults, young, or eggs through legal and illegal actions, or through
specific management actions in the United States and Mexico (CBD 2009,
pp. 15-19).
Deleterious effects resulting from exposure to pesticides,
heavy metals, or other natural or anthropogenic contaminants (CBD 2009,
pp. 20-21).
Fluctuations in food availability resulting from natural
or anthropogenic changes in the environment (CBD 2009, p. 20).
Increased vulnerability to extinction and other effects
associated with small population size (CBD 2009, p. 13).
Effects associated with natural and anthropogenic
variations in weather and climate, including anticipated effects
associated with global climate change and subsequent changes in sea
level and other sources of coastal flooding (CBD 2009, pp. 12 and 21).
Evaluation of Information Provided in the Petition and Available in
Service Files
We reviewed the information cited and referenced in the petition
and other information that was readily available in our files. The
effects of other colonial-nesting bird species as a potential threat is
supported by information in Molina (2004, p. 98), while disturbance by
humans and other animals as a potential threat is supported by Parnell
et al. (1995, p. 13), Molina and Erwin (2006, p. 285), and Palacios and
Mellink (2007, p. 219). Intentional killing as a potential threat is
supported by Molina and Erwin (2006, p. 287) and Molina (2008, p. 190).
Contaminants as a potential threat is supported by Parnell et al.
(1995, p. 13) and Molina and Erwin (2006, p. 287), while potential
threats acting on the small population size is supported by Palacios
and Mellink (2007, p. 221). Additionally, Parnell et al. (1995, p. 13)
and Palacios and Mellink (2007, p. 216) include information on changes
in climate, weather, and flooding as potential threats. Neither the
petition nor readily available information in our files yielded
substantial information indicating that the effects of fluctuations in
food availability may be a significant threat to the van Rossem's gull-
billed tern.
The individual threats under this factor are wide-ranging and may
affect the subspecies in a number of ways. For example, such threats
may significantly reduce the reproductive success of the van Rossem's
gull-billed tern (such as trampling of van Rossom's gull-billed tern
chicks by other waterbird species), result in the death of individual
adults (such as lethal control of van Rossem's gull-billed terns in an
effort to protect other listed species), or affect populations (such as
contaminant build-up in the food chain). Additionally, as cited in the
petition, the San Diego National Wildlife Refuge proposes to addle up
to 43 percent of the van Rossem's gull-billed tern egg clutches at the
San Diego Bay to protect listed species (Service 2009, p. 1). Although
this activity has not been implemented by the Refuge, if such action
occurs in the future, it would likely impact the population of this
subspecies. If these threats, either individually or collectively, are
severe enough, the status of the subspecies may be significantly
affected. We have evaluated the petition and readily available
information in our files and find substantial information indicating
that the effects of one or more of the following--other colonial-
nesting bird species, disturbance by humans and other animals,
intentional killing, contaminants, threats linked to small population
size, or potential changes in climate, weather, and flooding regimes--
may significantly affect the status of van Rossem's gull-billed tern.
Finding
On the basis of our evaluation of the information presented under
section 4(b)(3)(A) of the Act, we have determined that the petition
presents substantial scientific or commercial information indicating
that listing the van Rossem's gull-billed tern may be warranted. This
finding is based on information provided under Factor A (present or
threatened destruction, modification, or curtailment of the subspecies'
habitat or range), Factor B (overutilization for commercial,
recreational, scientific, or educational purposes), Factor D (the
inadequacy of existing regulatory mechanisms), and Factor E (other
natural or manmade factors affecting the subspecies' continued
existence). Because we have found that the petition presents
substantial information indicating that the van Rossem's gull-billed
tern may be at risk of extinction now or in the foreseeable future and
therefore listing under the Act may be warranted, we are initiating a
status review to determine whether listing the van Rossem's gull-billed
tern under the Act is warranted.
The ``substantial information'' standard for a 90-day finding
differs from the Act's ``best scientific and commercial data'' standard
that applies to a status review to determine whether a petitioned
action is warranted. A 90-day finding does not constitute a status
review under the Act. In a 12-month finding, we will determine whether
a petitioned action is warranted after we have completed a thorough
status review of the species, which is conducted following a
substantial 90-day finding. Because the Act's standards for 90-day and
12-month findings are different, as described above, a substantial 90-
day finding does not mean that the 12-month finding will result in a
warranted finding.
References Cited
A complete list of references cited is available on the Internet at
http://www.regulations.gov and upon request from the Carlsbad Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Author
The primary authors of this notice are staff members of the
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
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Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: May 26, 2010
Daniel M. Ashe,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-13779 Filed 6-8-10; 8:45 am]
BILLING CODE 4310-55-S