[Federal Register: September 28, 2010 (Volume 75, Number 187)]
[Rules and Regulations]               
[Page 59645-59656]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se10-14]                         

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R9-IA-2008-0068; 92210-0-0010-B6]
RIN 1018-AV60

 
Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for the African Penguin

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, determine endangered 
status for the African penguin (Spheniscus demersus) under the 
Endangered Species Act of 1973, as amended. This final rule implements 
the Federal protections provided by the Act for this species.

DATES: This rule becomes effective October 29, 2010.

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

FOR FURTHER INFORMATION CONTACT: Janine Van Norman, Chief, Branch of

[[Page 59646]]

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

SUPPLEMENTARY INFORMATION:

Background

    The Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 
1531 et seq.) is a law that was passed to prevent extinction of species 
by providing measures to help alleviate the loss of species and their 
habitats. Before a plant or animal species can receive the protection 
provided by the Act, it must first be added to the Federal Lists of 
Threatened and Endangered Wildlife and Plants; section 4 of the Act and 
its implementing regulations at 50 CFR part 424 set forth the 
procedures for adding species to these lists.

Previous Federal Action

    On November 29, 2006, the U.S. Fish and Wildlife Service (Service) 
received a petition from the Center for Biological Diversity (CBD) to 
list 12 penguin species under the Act: Emperor penguin (Aptenodytes 
forsteri), southern rockhopper penguin (Eudyptes chrysocome), northern 
rockhopper penguin (Eudyptes moseleyi), Fiordland crested penguin 
(Eudyptes pachyrhynchus), snares crested penguin (Eudyptes robustus), 
erect-crested penguin (Eudyptes sclateri), macaroni penguin (Eudyptes 
chrysolophus), royal penguin (Eudyptes schlegeli), white-flippered 
penguin (Eudyptula minor albosignata), yellow-eyed penguin (Megadyptes 
antipodes), African penguin (Spheniscus demersus), and Humboldt penguin 
(Spheniscus humboldti). On July 11, 2007, we published in the Federal 
Register a 90-day finding (72 FR 37695) in which we determined that the 
petition presented substantial scientific or commercial information 
indicating that listing 10 of the penguin species as endangered or 
threatened may be warranted, but 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 was warranted, and sought information from the public and 
interested parties on the status of the 10 species of penguins. In 
addition, we attended the International Penguin Conference in Hobart, 
Tasmania, Australia, a quadrennial meeting of penguin scientists from 
September 3-7, 2007, to gather information and to ensure that experts 
were aware of the status review. We also consulted with other agencies 
and range countries in an effort to gather the best available 
scientific and commercial information on these species.
    On December 3, 2007, the Service received a 60-day Notice of Intent 
to Sue from CBD. On February 27, 2008, CBD filed a complaint against 
the Department of the Interior for failure to make a 12-month finding 
(status determination) 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.
    On December 18, 2008, the Service published in the Federal Register 
a warranted 12-month finding and rule proposing to list the African 
penguin as an endangered species under the Act (73 FR 77332). We 
implemented the Service's peer review process and opened a 60-day 
comment period to solicit scientific and commercial information on the 
species from all interested parties following publication of the 
proposed rule.
    On March 9, 2010, CBD filed a complaint against the Service for 
failure to issue a final listing determination for seven penguin 
species, including African penguin, within 12 months of the proposals 
to list the species. In a court-approved settlement agreement, the 
Service agreed to submit a final listing determination for the African 
penguin to the Federal Register by September 30, 2010.

Summary of Comments and Recommendations

    We base this finding on a review of the best scientific and 
commercial information available, including all information received 
during the public comment period. In the December 18, 2008, proposed 
rule, we requested that all interested parties submit information that 
might contribute to development of a final rule. We also contacted 
appropriate scientific experts and organizations and invited them to 
comment on the proposed listings. We received 604 comments: 602 from 
members of the public and 2 from peer reviewers.
    We reviewed all comments we received from the public and peer 
reviewers for substantive issues and new information regarding the 
proposed listing of this species, and we address those comments below. 
Overall, the commenters and peer reviewers supported the proposed 
listing. Four comments from the public included additional information 
for consideration; all other comments simply supported the proposed 
listing without providing scientific or commercial data.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from four individuals with 
scientific expertise that included familiarity with the species, the 
geographic region in which the species occurs, and conservation biology 
principles. We received responses from two of the peer reviewers from 
whom we requested comments. They generally agreed that the description 
of the biology and habitat for the species was accurate and based on 
the best available information. New or additional information on the 
biology and habitat of the African penguin and threats was provided and 
incorporated into the rulemaking as appropriate. In some cases, it has 
been indicated in the citations by ``personal communication'' (pers. 
comm.), which could indicate either an e-mail or telephone 
conversation; while in other cases, the research citation is provided.

Peer Reviewer Comments

    (1) Comment: One peer reviewer found the proposed rule to be 
thorough, covered the main threats to the African penguin, and used the 
best information to accurately describe the biology, habitat, 
population trends, and distribution of the species. This peer reviewer 
also provided a few technical corrections.
    Our Response: We thank the peer reviewer for providing comments on 
the proposed rule. Most of the technical corrections that were provided 
were minor and did not significantly change the information already 
provided in the proposed rule, but rather provided more accuracy or 
clarity. Technical and grammatical corrections have been incorporated 
into this final rule and have been indicated in the citation as a 
personal communication.
    (2) Comment: One peer reviewer noted that relevant key literature 
was not cited and provided a list of 18 additional references for 
review and requested that we incorporate the new data and information 
into this final rule and consider it in making our listing 
determination.

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    Our Response: We reviewed all 18 references and have incorporated 
relevant information and additional citations into this final rule.
    (3) Comment: One peer reviewer stated that it would be incorrect to 
say that half the population of seals starved during the last two 
documented El Ni[ntilde]o events, although it was doubtless many did.
    Our Response: This information came from an online science 
magazine, Science in Africa (2004, p. 2), which stated that during the 
last two documented events, the seal population was almost halved after 
many adult seals succumbed to starvation, and the entire cohort of pups 
either died or aborted. The peer reviewer did not include any citations 
on the impact the El Ni[ntilde]o events had on the seal population, 
therefore, we did not revise this portion of the rule.
    (4) Comment: One peer reviewer provided additional information on 
factors contributing to the failure of sardine stocks to recover; 
including environmental anomalies and overfishing. In addition, the 
peer reviewer stated that, although horse mackerel (Trachurus 
trachurus) may have benefitted from the decline in sardine stocks, its 
increase in abundance does not appear to be detrimental to the sardine 
and should not be regarded as ``replacing'' sardine, as we indicated in 
the proposed rule.
    Our Response: We have added additional information regarding the 
effects of overfishing and environmental anomalies in the Benguela 
system on sardine stocks to Factor A. The Present or Threatened 
Destruction, Modification, or Curtailment of African Penguin's Habitat 
or Range below. Although horse mackerel stocks have increased, it is 
likely due to the decrease in sardine stocks caused by high fishing 
pressure. Mackerels were able to take advantage of this decrease in a 
competitor for zooplankton and increased while sardine stocks 
stabilized at a lower abundance. Therefore, it is competition with the 
increased horse-mackerel stocks for zooplanton, rather than actual 
replacement, that is a concern for the sardine as a vital food source 
for the African penguin. We have revised our statement that horse 
mackerel has replaced sardines.
    (5) Comment: One peer reviewer stated that avian cholera 
(Pasteurella multocida) has been reported to affect African penguins 
and could have catastrophic consequences for the species.
    Our Response: After reviewing pertinent literature, we found that 
avian cholera has had a minimal effect on African penguins. During an 
outbreak in 1991 on eight islands off western South Africa, mortality 
was recorded for small numbers of African penguins on Dassen and Dyer 
islands (Crawford et al. 1992, p. 237). From 2002 to 2006, there were 
annual outbreaks of avian cholera on Dyer Island. A characteristic of 
the avian cholera outbreaks was significant mortality in the Cape 
cormorant (Phalacrocorax capensis) with little impact on other species 
(Waller and Underhill 2007, p. 109). During the 2004-2005 outbreak, 
which was the largest outbreak, only one African penguin death was 
recorded (Waller and Underhill 2007, p. 107). However, human presence 
during the avian cholera outbreaks may disturb African penguins causing 
them to abandon nests, leaving eggs and chicks vulnerable to predation 
(Waller and Underhill 2007, p. 109). We have added more information 
regarding the effects of human presence during avian cholera outbreaks 
to Factor E. Other Natural or Manmade Factors Affecting the Continued 
Existence of the Species.

Public Comments

    (6) Comment: Several commenters provided supporting data and 
information regarding the biology, ecology, life history, population 
estimates, threat factors affecting this penguin species, and current 
conservation efforts.
    Our Response: We thank all the commenters for their interest in the 
conservation of this species and thank those commenters who provided 
information for our consideration in making this listing determination. 
Most information submitted was duplicative of the information contained 
in the proposed rule; however, some comments contained information 
which provided additional clarity or support to, but did not 
substantially change, the information already contained in the proposed 
rule. This information has been incorporated into our finding.

Summary of Changes From Proposed Rule

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

Species Information

    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, 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. 2000, 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). As 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 and Marcus Islands) 
decreased, while the population more than doubled over the 1992-2003 
period at five other colonies, including the two largest colonies at 
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. 2007c, p. 326).
    Although African penguins are generally colonial breeders, many 
also

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breed solitarily or in small, loose groups (Kemper 2009, pers. comm.; 
Kemper et al. 2007a, p. 89). They breed mainly on rocky offshore 
islands, either nesting in burrows they excavate themselves or under 
boulders or bushes, manmade structures, or large items of jetsam 
(Kemper et al. 2007a, p. 89), sometimes in depressions under these 
structures (Crawford 2009, pers. comm.). 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). Large-scale removal of guano from the Namibian islands has 
resulted in a majority of the penguins having to now breed on the 
surface (Kemper 2009, pers. comm.; Kemper et al. 2007b, p. 101; Kemper 
et al. 2007a, p. 89; Shannon and Crawford 1999, pg. 119).
    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. The peak of the 
breeding season in Namibia generally occurs between October and 
February, with a secondary peak between June and October (Kemper 2009, 
unpaginated), but variations occur between locations: On Mercury 
Island, peaks occur between October and January; on Ichaboe Island, 
peaks occur between October and December; on Halifax Island, breeding 
peaks between July and August and early December; and on Possession 
Island, breeding peaks between November and January (Kemper et al. 
2007a, pp. 89 and 91). In South Africa, breeding peaks differ from 
those in Namibia: Peak breeding on Dassen and Robben islands occurs 
between April and August; on Malgas and Marcus islands and Stony Point, 
peak breeding occurs between February and August; and on St. Croix 
Island, peak breeding occurs during January with secondary peaks in 
March through June (Kemper et al. 2007a, p. 95).
    The timing of breeding is thought to coincide with availability of 
local food sources (Kemper 2009, unpaginated; Kemper et al. 2007a, p. 
95; Randall 1989, p. 247). 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 average age at first breeding 
is between 3 and 6 years old (Kemper et al. 2008, p. 810; Whittington 
et al. 2005, p. 227; Randall 1989, p. 252). The male carries out nest 
site selection, while nest building is by both sexes. Penguins lay a 
two-egg clutch (Kemper 2009, unpaginated; Randall 1989, p. 247).
    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 highest recorded 
age in the wild is greater than 27 years (Whittington et al. 2000, 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 (Engraulis encrasicolus) and Pacific 
sardine (Sardinops sagax) (Berruti et al. 1989, pp. 273-335).
    The principal upwelling center in the Benguela ecosystem is 
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, in general, feed on small fish, cephalopods, and 
to a lesser extent, squid (Crawford 2007, p. 229; Ludynia 2007, p. 27; 
Crawford et al. 2006, p. 120; Petersen et al. 2006, pp. 14, 18; Randall 
1989, p. 251; Crawford et al. 1985, p. 215). In South Africa, anchovy 
became the dominate prey of African penguins following the collapse of 
the sardine stock in the 1960s (Kemper 2009, pers. comm.; Randall 1989, 
p. 251). 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) and 83 to 85 percent by 
number of prey items in studies conducted between 1977 and 1985 
(Crawford et al. 2006, p. 120). In Namibia, pilchard (Sardinops 
ocellata) were the dominate prey species of African penguins until the 
collapse of the sardine stock in the late 1960s to early 1970s (Kemper 
et al. 2001, p. 432; Crawford et al. 1985, pp. 225-226). Following the 
collapse, pilchard were replaced as dominate prey by pelagic goby 
(Sufflogobius bibarbatus) at Mercury and Ichaboe islands and by 
cephalopods at Halifax and Possession islands (Kemper 2009, pers. 
comm.; Ludynia 2007, pp. 27-28; Kemper et al. 2001, p. 432; Crawford et 
al. 1985, pp. 225-226). 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 sardines and anchovies (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

[[Page 59649]]

``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) off 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). A 
recent study revealed greater foraging ranges between 8.8 and 19.8 mi 
(14 and 32 km) for African penguins on Mercury Island and an average 
trip duration of 13 hours (Ludynia 2007, pp. 17-18). Ludynia (2007, pp. 
28, 30) also reported foraging ranges between 3.9 and 7.1 mi (6 and 11 
km) for three African penguins on Possession Island and foraging ranges 
between 3.3 and 8.2 mi (5 and 13 km) for two African penguins on 
Halifax Island; trip duration ranges between 8-27.5 hours and 3.5-12 
hours, respectively. 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, some African penguins forage on the Agulhas Bank (Crawford 
2009, pers. comm.).
    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 
have been observed to abandon large chicks in order to move into this 
critical pre-molt foraging mode; this is known to occur regularly and 
often at a large scale at Dyer Island (Kemper 2009, pers. comm.). 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 2005-2006. Parents abandoned chicks as they began to 
molt (SANCCOB 2006, p. 1; SANCCOB 2007a, p. 1). The increasing 
observation of abandonment in South Africa is perhaps related to a 
slight trend 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 
1956-1957 to 69,000 pairs in 1979-1980 to 57,000 pairs in 2004-2005, 
and to about 36,188 pairs in 2006 (Kemper et al. 2007c, pp. 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 2009 
global population was estimated at 25,262 pairs; equating to a decline 
of 60.5 percent over 28 years (three generations) (BirdLife 
International 2010, unpaginated).
    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. 2007c, p. 327; Underhill et al. 2007, p. 65; Roux et al. 2007a, p. 
55).
    On the 2007 International Union for Conservation of Nature (IUCN) 
Red List, the African penguin was listed as ``Vulnerable'' on the basis 
of steep population declines (Birdlife International 2007, p. 1). Given 
the decline observed over 3 generations, a 2007 revision of the 
conservation status of the species discussed changing that Red List 
status to ``Endangered'' if the declines continued (Kemper et al. 
2007c, 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. 2007c, p. 327). In June of 2010, the 
African penguin was uplisted from ``Vulnerable'' to ``Endangered'' on 
the 2010 IUCN Red List. The change in status was based on recent data 
revealing a continuing rapid population decline, most likely due to 
commercial fisheries and shifts in prey populations, with no signs of 
reversing (BirldLife International 2010, unpaginated).
    Breeding no longer occurs at seven localities where it formerly 
occurred or has been suspected to occur--Seal, North Long, North Reef, 
and Albatross Islands in Namibia, and Jacobs Reef, Quoin, and Seal 
(Mossel Bay) Islands in South Africa (Kemper 2009, pers. comm.; Kemper 
et al. 2007c, p. 326; 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 of the Act (16 U.S.C. 1533) and its implementing 
regulations at 50 CFR 424 set forth the procedures for adding species 
to the Federal Lists of Endangered and Threatened Wildlife and Plants. 
A species may be determined to be an endangered or threatened species 
due to one or more of the five factors described in section 4(a)(1) of 
the Act. The five factors are: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; and (E) other natural or manmade 
factors affecting its continued existence. 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

[[Page 59650]]

penguins were forced to nest on the surface in the open, where their 
eggs and chicks are more vulnerable to predators such as kelp gulls 
(Larus dominicanus), disturbance, heat stress, and flooding (Kemper et 
al. 2007b, p. 101; Griffin 2005, p. 16; Shannon and Crawford 1999, p. 
119).
    Without cover provided by burrows excavated in the guano, birds are 
more likely to flee from aerial predators or disturbance caused by 
humans, leaving the nests exposed (Kemper et al. 2007b, p. 104). 
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 (Kemper et al. 2007b, p. 101; Shannon and 
Crawford 1999, p. 119). Kemper et al. (2007b, p. 101) noted an event in 
which the air temperature rose to 98.6 degrees Fahrenheit ([deg]F) (37 
degrees Celsius ([deg]C)), resulting in the death of 68 chicks 
constituting 37 percent of the surface-nesting chicks. Adapted for life 
in cold temperate waters, penguins 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. Furthermore, rainstorms are uncommon, 
however, they can be severe and flooding of nests may occur (Kemper et 
al. 2007b, p. 101).
    Although guano harvesting is now prohibited in penguin colonies, it 
continues sporadically at Ichaboe Island (Kemper 2009, unpaginated), 
and 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; 
however, since guano scraping ceased, the accumulation of penguin guano 
has been minimal because the population is small (Waller and Underhill 
2007, p. 109), and the more the population decreases, the slower the 
guano will build (Kemper 2009, pers. comm.). Because penguins are now 
forced to nest on the surface and natural features available for cover 
(e.g., bushes and rock overhangs) are limited, penguins may also use 
abandoned buildings for protection. However, these sites provide poor 
lighting and damp conditions often with flea and tick infestations, and 
chicks appear in poor condition at these locations (Kemper et al. 
2007b, p. 105). Kemper et al. (2007b, p. 104) noted that, excluding 
nests in buildings, nests with cover had better overall breeding 
success than exposed nests.
    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, p. 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 penguins are currently experiencing 
directional ecosystem changes attributable to global climate change; 
overall sea surface temperature increases 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, p. 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 
African penguin led to a 45 percent decrease, 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 
southeasternmost 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. Although one new colony has appeared east of existing 
Western Cape colonies, more significantly, there has been a significant 
decrease in annual survival rate for adult penguins from 0.82 to 0.72 
(Crawford et al. 2008, p. 181) in addition to the 45 percent decrease 
in breeding pairs in the Western Cape Province. 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 (See Factor E) (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

[[Page 59651]]

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 young penguins are particularly impacted by increasingly 
scarce or hard-to-find prey. Even after heavy fishing pressure was 
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. Remaining sardine stocks in Namibia have 
contracted to the north out of reach of breeding penguins tied to the 
vicinity of their breeding locations (Kemper 2009, pers. comm.; Kemper 
et al. 2001, p. 432). This failure to recover has been attributed to 
oxygen-poor conditions (Sakko 1998, p. 428); El Ni[ntilde]os, which 
have resulted in failed recruitment of sardines and mass mortality of 
sardines and other pelagic fish (Kemper 2009, pers. comm.; Roux et al. 
2007b p. 12; Sakko 1998, p. 428); years of poor recruitment exacerbated 
by continued fishing pressure (Kemper 2009, pers. comm.; Boyer et al. 
2001, pp. 67, 81-83); competition with horse mackerel (Trachurus 
trachurus) (Kemper 2009, pers. comm.; Shannon et al. 2000, p. 721); and 
the continuing warming trend (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 (Benguela Ni[ntilde]o). 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 14.4 [deg]F (8 [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 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 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 Benguela 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 (lacking oxygen) 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 through benthic dives in pursuit of available food tolerant 
of low-oxygen conditions, primarily the pelagic goby (Sufflogobius 
bibarbatus), which has lower energy content than the penguins' 
preferred prey of anchovies and sardines (Ludynia 2007, pp. 45-58; 
Crawford et al. 1985, p. 224). 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. Like Benguela Ni[ntilde]os 
events, these sulphide eruptions are predicted to increase with 
continuing climate change (Ludynia et al. 2007, p. 43); eruptions 
appear to be coincident with increased intensity of wind-driven coastal 
upwelling and low-pressure weather cells (e.g., sudden warming of sea 
surface and interruption of coastal upwelling), both of which can be 
affected by climate change (Weeks et al. 2004, p. 153). Furthermore, 
these sulphide eruptions could potentially contribute to climate change 
through additional emissions of methane gas into the atmosphere; 
however, further studies are needed to determine the extent of the 
effects on climate change (Bakun and Weeks 2004, pp. 1,021-1,022).
    We have identified a number of threats to the coastal and marine 
habitat of the African penguin that 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.

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 emanate from the Namibian islands (Ellis et al. 1998, p. 121). 
Use for nonlethal, scientific purposes is highly regulated and does not 
pose a threat to populations (See analysis under Factor D).
    In 1975, the African penguin was listed on Appendix II of the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (CITES). CITES is an international agreement between 
governments to ensure that the international trade of CITES-listed 
plant and animal species does not threaten species' survival in the 
wild. There are currently 175 CITES Parties (member countries or 
signatories to the Convention). Under this treaty, CITES Parties 
regulate the import, export, and reexport of CITES-protected plants and 
animal species (also see Factor D). Trade must be authorized through a 
system of permits and certificates that are provided by the designated 
CITES Scientific and Management Authorities of each CITES Party (CITES 
2010a, unpaginated).
    Between the time the African penguin was listed in CITES in 1975 
and 2008, 299 CITES-permitted shipments have been reported to the 
United Nations Environment Programme-World Conservation Monitoring 
Center (UNEP-WCMC). Of these shipments, 80 (27 percent) were reportedly 
imported into the United States and 25 (8 percent) were shipments 
permitted for export from the United States (UNEP-WCMC 2010, 
unpaginated). With the information given in the UNEP-WCMC

[[Page 59652]]

database, between 1975 and 1993, approximately 30 shipments (275 
individuals) of live African penguins of unknown origin were traded. 
Between 1994 and 2003, approximately 7 shipments (42 individuals) of 
live, wild African penguins were traded for the following purposes: 
scientific, personal, biomedical, commercial, zoological display, and 
reintroduction or introduction into the wild. There has been no trade 
in live, wild African penguins reported since 2003. The other 262 
shipments involved trade in live pre-Convention (20 specimens) or 
captive-born/captive-bred penguins (952 specimens) and trade in parts 
and products (2,738 scientific specimens, 39 bodies, 121 feathers, 16 
skeletons, 6 skins, 8 skulls, and 4 personal sport-hunted trophies).
    As a species listed in Appendix II of CITES, commercial trade is 
allowed. However, CITES requires that before an export can occur, a 
determination must be made that the specimens were legally obtained (in 
accordance with national laws) and that the export will not be 
detrimental to the survival of the species in the wild. Based on the 
low numbers of live, wild African penguins in trade since 1994 and that 
the trade in parts and products from wild specimens is primarily 
scientific samples, we believe that international trade controlled via 
valid CITES permits is not a threat to the species.
    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 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), including avian cholera (Pasteurella 
multocida) and avian malaria (Plasmodium relictum). During an outbreak 
of avian cholera in 1991 on eight islands off western South Africa, 
mortality was recorded for small numbers of African penguin on Dassen 
and Dyer islands (Crawford et al. 1992, p. 237). From 2002 to 2006, 
there were annual outbreaks of avian cholera on Dyer Island; however, a 
characteristic of the avian cholera outbreaks was significant mortality 
for a single species (Cape cormorant Phalacrocorax capensis) with 
little impact on other species (Waller and Underhill 2007, p. 109). 
During the 2004-2005 outbreak, which was the largest in extent, only 
one African penguin death was recorded (Waller and Underhill 2007, p. 
107). Therefore, we find that avian cholera has had a minimal effect on 
African penguins. Although avian malaria does not normally occur in 
wild populations, there is a high prevalence of the disease in birds 
held in captivity. The absence of avian malaria in wild penguins can be 
explained by factors such as age-related immunity to malarias, 
mosquito-impeding feathers, and escape from mosquitoes into the water 
(Graczyk et al. 1995, p. 704). Those penguins held in captivity are 
subject to more intense exposure to malarial parasites, but also, most 
of the birds in captivity are being rehabilitated from exposure to oil 
pollution, which can immobilize penguins and impair the feather barrier 
and make the bird more vulnerable to mosquito attacks (Graczyk et al. 
1995, pp. 705-706). Release of infected rehabilitated birds could pose 
a hazard to wild penguins once they are released (Graczyk et al. 1995, 
p. 703). However, we could not find any information on the large-scale 
effect of avian malaria on African penguin populations. 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). Not all 
seals feed on penguins, usually just subadult male individuals (Kemper 
2009, pers. comm.; Mecenero et al. 2005, p. 510; du Toit et al. 2004, 
pp. 45, 50). Although only a few individuals may be responsible for 
predation on African penguins, they can have a detrimental effect on 
small colonies (Mecenero et al. 2005, pp. 509, 511). At Dyer Island, 
842 penguins in a colony of 9,690 individuals (8.7 percent) were killed 
in 1995-1996 (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; Crawford et al. 2001, p. 440). The practice of removing problem 
individuals has been advocated in South Africa's Policy on the 
Management of Seals, Seabirds, and Shorebirds, which allows for the 
culling of specific seals responsible for the predation of seabirds of 
conservation concern (Kemper 2009, pers. comm.; Department of 
Environmental Affairs and Tourism 2007, p. 6). Some seals killing 
penguins have been removed from South African localities (Crawford 
2009, pers. comm.), and confirmed problem seals are culled at three 
islands (Mercury, Ichaboe, and Possession islands) in Namibia (Kemper 
2009, pers. comm.); however, it should be noted that 40 percent of the 
Namibia seal population has shifted north of its breeding range away 
from penguin breeding locations and main foraging areas (Kemper 2009, 
pers. comm.; Kemper et al. 2007c, p. 339).
    Predation on eggs and small chicks of African penguins by kelp 
gulls is a concern brought on through human disturbance. As described 
under Factor A, the historic harvesting of guano deprived African 
penguins of their primary nest-building material, forcing them to nest 
on the surface in the open where birds are more likely to flee from 
aerial predators and human disturbance (see Factor E), leaving their 
eggs and chicks more vulnerable to predators such as kelp gulls (Kemper 
et al. 2007b, pp. 101, 104; Griffin 2005, p. 16; Shannon and Crawford 
1999, p. 119).
    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, and we have no reason to believe the threat will be 
ameliorated in the foreseeable future.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    The African penguin is listed on Appendix II of CITES. CITES, an 
international treaty among 175 nations, including Namibia, South 
Africa, Congo, Gabon, Mozambique, and the United States, entered into 
force in 1975. In the United States, CITES is implemented through the 
U.S. Endangered Species Act. The Secretary of the Interior has 
delegated the Department's responsibility for CITES to the Director of 
the Service and established the CITES Scientific and Management 
Authorities to implement the treaty.
    CITES provides varying degrees of protection to more than 32,000 
species of animals and plants that are traded as whole specimens, 
parts, or products. Under this treaty, member countries work together 
to ensure that international trade in animal and plant species is not 
detrimental to the survival of wild populations by regulating the 
import, export, and reexport of CITES-listed animal and plant species 
(USFWS 2010, unpaginated). Under CITES, a species is listed at one of 
three levels of protection (i.e., regulation of international trade), 
which have different permit requirements (CITES 2010b, unpaginated). 
Appendix II includes species requiring regulation of international 
trade in order to ensure

[[Page 59653]]

that trade of the species is compatible with the species' survival. 
International trade in specimens of Appendix-II species is authorized 
when the permitting authority has determined that the export will not 
be detrimental to the survival of the species in the wild and that the 
specimens to be exported were legally acquired (CITES 2010a, 
unpaginated). As discussed under Factor B, we do not consider 
international trade to be a threat impacting the African penguin. 
Therefore, protection under this Treaty is an adequate regulatory 
mechanism.
    This species is also included under Appendix II of the Convention 
on Migratory Species (CMS), of which South Africa is a Party. Inclusion 
in Appendix II encourages multistate and regional cooperation for 
conservation (CMS 2009, p. 6). The African-Eurasian Waterbird Agreement 
(AEWA) was developed under CMS auspices and became effective on 
November 1, 1999. The Agreement covers 119 Range States in Africa, 
Europe, parts of Canada, Central Asia, and the Middle East and focuses 
on 255 waterbird species, including the African penguin (AEWA 2010, p. 
10; AEWA 2008, p. 1). Parties to the Agreement are encouraged to engage 
in a wide range of conservation actions provided in a comprehensive 
Action Plan (2009-2012). These actions address species and habitat 
conservation, management of human activities, research and monitoring, 
education and information, and implementation (AEWA 2010, p. 11).
    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 that 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 reexporting; 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 requiring a permit 
for possession of the species. According to Ellis et al. (1998, p. 
115), this status applies to the Northern Cape, Western Cape, and 
Eastern Cape Provinces as well.
    In Namibia, the African penguin is listed as a ``Specially 
Protected Bird,'' under the draft Parks and Wildlife Management Bill 
2001, due to the recent rapid decline (Kemper 2009, unpaginated; 
Ministry of Fisheries and Marine Resources 2009, p. 22; Kemper et al. 
2007c, p. 326); however, we could not find any information indicating 
this bill has been finalized. Under the Namibian Marine Resources Act 
of 2000 (Part IV, 18(1)(b) and (c)), except in terms of an exploratory 
right or an exemption, a person may not kill, disturb, or maim any 
penguin or harvest any bird on any island, rock, or guano platform in 
Namibian waters, or on the shore seaward of the high-water mark, or in 
the air above such areas. This Act also addresses discharge of 
injurious substances into the marine environment and killing or 
disabling of marine animals (Ministry of Fisheries and Marine Resources 
2009, p. 43). Additionally, all Namibian breeding locations for the 
African penguin fall within the recently proclaimed Namibian Island's 
Marine Protected Area (MPA) (Kemper 2009, pers. comm.). One of the key 
goals of the MPA is to provide greater protection to the breeding and 
foraging habitat of endangered seabirds, including the African penguin. 
The MPA will provide high protection status for specific islands and, 
among other marine-related issues, addresses landing on islands, guano 
scraping, mining, boat-based eco-tourism, and risks associated with 
shipping-related threats, such as oil spills (Ministry of Fisheries and 
Marine Resources 2009, pp. 51-88).
    Kemper et al. (2007c, p. 326) reported that African penguin 
colonies in South Africa are all protected under authorities ranging 
from local, to provincial, to national park status, and 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, 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.

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 competition from fisheries, as well as seals, have 
hindered

[[Page 59654]]

the African penguin's historical ability to rebound from oceanographic 
changes and prey regime shifts. The reduced carrying 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 abundant 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 have 
experienced sharply decreased reproductive success. Kemper (2009, pers. 
comm.; Kemper et al. 2007c, p. 339) has noted, however, that the 
Namibian Cape fur seal population is shifting north, away from penguin 
breeding and foraging areas.
    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 Robben Island from 
1989 to 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 tourism (Ellis et al. 1998, p. 121). Such disturbances can 
cause the penguins to panic and desert their nesting sites. In both 
South Africa and Namibia, there is increasing pressure to open penguin 
viewing areas for tourism. Although this type of tourism is currently 
occurring, it is in Boulders, South Africa, where penguins are used to 
human presence, and the tourism is being conducted in a controlled 
manner (Kemper 2009, pers. comm.). Unless other areas identified for 
tourism development are carefully controlled, the disturbance could be 
detrimental to breeding success (Kemper 2009, pers. comm.). 
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. In addition, human-caused disturbance during 
avian cholera outbreaks may affect African penguins. Although avian 
cholera mainly affects Cape cormorants, human presence to remove 
carcasses, in an effort to reduce the spread of the disease, is 
considered a high disturbance activity and has caused penguins to move 
from nests exposing eggs and chicks to predation by kelp gulls (Waller 
and Underhill 2007, p. 109).
    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 are 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, including many African 
penguins.
    The most recent oil spill occurred in April 2009 when oil began 
leaking from the hull of a fishing trawler, Meob Bay, which sank in 
June 2002. Approximately 62 mi (100 km) of coastline, from Possession 
Island to Mercury Island (prime breeding locations), were affected. At 
least 160 African penguins were rescued and taken to rehabilitation 
facilities to be treated (Bause 2009, unpaginated). The most serious 
event 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 
nonoiled birds away from the region, to collect penguin chicks for 
artificial rearing, and to clean up oiled areas. Nineteen thousand 
oiled African penguins were brought for cleaning to the SANCCOB 
facility. An additional 19,500 penguins were relocated to prevent them 
from being oiled. In total, 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.

[[Page 59655]]

    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 following 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 nonoiled 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.

African Penguin Finding

    The African penguin is presently in a serious, accelerating decline 
throughout its range, with a 60.5 percent decline over 28 years (three 
generations). This verified, accelerating, and immediate decline 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. The impact of competition 
from fisheries is now exacerbated by the increased role of abundant 
Cape fur seal populations throughout the range in competing 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 historical 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 Cape fur seals 
and kelp gulls 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.

Conclusion and Determination for the African Penguin

    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 food base 
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, facilitating 
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 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, critical habitat is not being designated for this species under 
section 4 of the Act.
    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

[[Page 59656]]

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.

Required Determinations

National Environmental Policy Act (NEPA)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations adopted under section 4(a) of 
the Act. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244).

References Cited

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

Author

    The primary author of this final rule is staff of the Branch of 
Foreign Species, Endangered Species Program, U.S. Fish and Wildlife 
Service, 4401 N. Fairfax Drive, Arlington, Virginia 22203.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. Amend Sec.  17.11(h) by adding a new entry for ``Penguin, African,'' 
in 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                         775           NA           NA
                                                        South Africa,
                                                        Namibia.

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

     Dated: September 9, 2010.
Paul R. Schmidt,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-24338 Filed 9-27-10; 8:45 am]
BILLING CODE 4310-55-P