[Federal Register: December 18, 2008 (Volume 73, Number 244)]
[Proposed Rules]               
[Page 77332-77341]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

[FWS-R9-IA-2008-0068; 96000-1671-0000-B6]
RIN 1018-AV60

Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition To List the African Penguin (Spheniscus demersus) Under 
the Endangered Species Act, and Proposed Rule To List the African 
Penguin as Endangered Throughout Its Range

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and notice of 12-month petition finding.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the African penguin (Spheniscus demersus) as an endangered species 
under the Endangered Species Act of 1973, as amended (Act). This 
proposal, if made final, would extend the Act's protection to this 
species. This proposal also constitutes our 12-month finding on the 
petition to list this species. The Service seeks data and comments from 
the public on this proposed rule.

DATES: We will accept comments and information received or postmarked 
on or before February 17, 2009. We must receive requests for public 
hearings, in writing, at the address shown in the FOR FURTHER 
INFORMATION CONTACT section by February 2, 2009.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: [FWS-R9-IA-2008-0068]; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept comments by e-mail or fax. We will post all 
comments on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Public 
Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Pamela Hall, Branch Chief, Division of 
Scientific Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax 
Drive, Room 110, Arlington, VA 22203; telephone 703-358-1708; facsimile 
703-358-2276. If you use a telecommunications device for the deaf 
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-


Public Comments

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions on this proposed rule. We particularly seek 
comments concerning:
    (1) Biological, commercial, trade, or other relevant data 
concerning any threats (or lack thereof) to this species and 
regulations that may be addressing those threats.
    (2) Additional information concerning the range, distribution, and 
population size of this species, including the locations of any 
additional populations of this species.
    (3) Any information on the biological or ecological requirements of 
the species.
    (4) Current or planned activities in the areas occupied by the 
species and possible impacts of these activities on this species.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
consider comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Division of Scientific Authority, 4401 N. Fairfax 
Drive, Room 110, Arlington, VA 22203; telephone 703-358-1708.


    Section 4(b)(3)(A) of the Act (16 U.S.C. 1533 (b)(3)(A)) requires 
the Service to make a finding known as a ``90-day finding,'' on whether 
a petition to add, remove, or reclassify a species from the list of 
endangered or threatened species has presented substantial information 
indicating that the requested action may be warranted. To the maximum 
extent practicable, the finding shall be made within 90 days following 
receipt of the petition and published promptly in the Federal Register. 
If the Service finds that the petition has presented substantial 
information indicating that the requested action may be warranted 
(referred to as a positive finding), section 4(b)(3)(A) of the Act 
requires the Service to commence a status review of the species if one 
has not already been initiated under the Service's internal candidate 
assessment process. In addition, section 4(b)(3)(B) of the Act requires 
the Service to make a finding within 12 months following receipt of the 
petition on whether the requested action is warranted, not warranted, 
or warranted but precluded by higher-priority listing actions (this 
finding is referred to as the ``12-month finding''). Section 4(b)(3)(C) 
of the Act requires that a finding of warranted but precluded for 
petitioned species should be treated as having been resubmitted on the 
date of the warranted but precluded finding, and is, therefore, subject 
to a new finding within 1 year and subsequently thereafter until we 
take action on a proposal to list or withdraw our original finding. The 
Service publishes an annual notice of resubmitted petition findings 
(annual notice) for all foreign species for which listings were 
previously found to be warranted but precluded.
    In this notice, we announce a warranted 12-month finding and 
proposed rule to list one penguin taxon, the African penguin, as an 
endangered species under the Act. We will announce the 12-month 
findings for the emperor penguin (Aptenodytes forsteri), southern 
rockhopper penguin (Eudyptes chrysocome), northern rockhopper penguin 
(Eudyptes chrysolophus), Fiordland crested penguin (Eudyptes 
pachyrhynchus), erect-crested penguin (Eudyptes sclateri), macaroni 
penguin (Eudyptes chrysolophus), white-flippered penguin (Eudyptula 
minor albosignata), yellow-eyed penguin (Megadyptes antipodes), and 
Humboldt penguin (Spheniscus humboldti) in one or more subsequent 
Federal Register notice(s).

[[Page 77333]]

Previous Federal Actions

    On November 29, 2006, the Service received a petition from the 
Center for Biological Diversity to list 12 penguin species under the 
Act: Emperor penguin, southern rockhopper penguin, northern rockhopper 
penguin, Fiordland crested penguin, snares crested penguin (Eudyptes 
robustus), erect-crested penguin, macaroni penguin, royal penguin 
(Eudyptes schlegeli), white-flippered penguin, yellow-eyed penguin, 
African penguin, and Humboldt penguin. Among them, the ranges of the 12 
penguin species include Antarctica, Argentina, Australian Territory 
Islands, Chile, French Territory Islands, Namibia, New Zealand, Peru, 
South Africa, and United Kingdom Territory Islands. The petition is 
clearly identified as such, and contains detailed information on the 
natural history, biology, status, and distribution of each of the 12 
species. It also contains information on what the petitioner reported 
as potential threats to the species from climate change and changes to 
the marine environment, commercial fishing activities, contaminants and 
pollution, guano extraction, habitat loss, hunting, nonnative predator 
species, and other factors. The petition also discusses existing 
regulatory mechanisms and the perceived inadequacies to protect these 
    In the Federal Register of July 11, 2007 (72 FR 37695), we 
published a 90-day finding in which we determined that the petition 
presented substantial scientific or commercial information to indicate 
that listing 10 species of penguins as endangered or threatened may be 
warranted: Emperor penguin, southern rockhopper penguin, northern 
rockhopper penguin, Fiordland crested penguin, erect-crested penguin, 
macaronis penguin, white-flippered penguin, yellow-eyed penguin, 
African penguin, and Humboldt penguin. Furthermore, we determined that 
the petition did not provide substantial scientific or commercial 
information indicating that listing the snares crested penguin and the 
royal penguin as threatened or endangered species may be warranted.
    Following the publication of our 90-day finding on this petition, 
we initiated a status review to determine if listing each of the 10 
species is warranted, and opened a 60-day public comment period to 
allow all interested parties an opportunity to provide information on 
the status of the 10 species of penguins. The public comment period 
closed on September 10, 2007. In addition, we attended the 
International Penguin Conference in Hobart, Tasmania, Australia, a 
quadrennial meeting of penguin scientists from September 3-7, 2007 
(during the open public comment period), to gather information and to 
ensure that experts were aware of the status review and the open 
comment period. We also consulted with other agencies and range 
countries in an effort to gather the best available scientific and 
commercial information on these species.
    During the public comment period, we received over 4,450 
submissions from the public, concerned governmental agencies, the 
scientific community, industry, and other interested parties. 
Approximately 4,324 e-mails and 31 letters received by U.S. mail or 
facsimile were part of one letter-writing campaign and were 
substantively identical. Each letter supported listing under the Act, 
included a statement identifying ``the threat to penguins from global 
warming, industrial fishing, oil spills and other factors,'' and listed 
the 10 species included in the Service's 90-day finding. A further 
group of 73 letters included the same information plus information 
concerning the impact of ``abnormally warm ocean temperatures and 
diminished sea ice'' on penguin food availability and stated that this 
has led to population declines in southern rockhopper, Humboldt, 
African, and emperor penguins. These letters stated that the emperor 
penguin colony at Point Geologie has declined more than 50 percent due 
to global warming and provided information on krill declines in large 
areas of the Southern Ocean. They stated that continued warming over 
the coming decades will dramatically affect Antarctica, the sub-
Antarctic islands, the Southern Ocean and the penguins dependent on 
these ecosystems for survival. A small number of general letters and e-
mails drew particular attention to the conservation status of the 
southern rockhopper penguin in the Falkland Islands.
    Twenty submissions provided detailed, substantive information on 
one or more of the 10 species. These included information from the 
governments, or government-affiliated scientists, of Argentina, 
Australia, Namibia, New Zealand, Peru, South Africa, and the United 
Kingdom, from scientists, from 18 members of the U.S. Congress, and 
from one non-governmental organization (the original petitioner).
    On December 3, 2007, the Service received a 60-day Notice of Intent 
to Sue from the Center for Biological Diversity (CBD). CBD filed a 
complaint against the Department of the Interior on February 27, 2008, 
for failure to make a 12-month finding on the petition. On September 8, 
2008, the Service entered into a Settlement Agreement with CBD, in 
which we agreed to submit to the Federal Register 12-month findings for 
the 10 species of penguins, including the African penguin, on or before 
December 19, 2008.
    We base our findings on a review of the best scientific and 
commercial information available, including all information received 
during the public comment period. Under section 4(b)(3)(B) of the Act, 
we are required to make a finding as to whether listing each of the 10 
species of penguins is warranted, not warranted, or warranted but 
precluded by higher priority listing actions.

African Penguin (Spheniscus demersus)


    The African penguin is known by three other common names: Jackass 
penguin, cape penguin, and black-footed penguin. The ancestry of the 
genus Spheniscus is estimated at 25 million years ago, following a 
split between Spheniscus and Eudyptula from the basal lineage 
Aptenodytes (the ``great penguins,'' emperor and king). Speciation 
within Spheniscus is recent, with the two species pairs originating 
almost contemporaneously in the Pacific and Atlantic Oceans in 
approximately the last 4 million years (Baker et al. 2006, p. 15).
    African penguins are the only nesting penguins found on the African 
continent. Their breeding range is from Hollamsbird Island, Namibia, to 
Bird Island, Algoa Bay, South Africa (Whittington et al. 2000a, p. 8), 
where penguins form colonies (rookeries) for breeding and molting. 
Outside the breeding season, African penguins occupy areas throughout 
the breeding range and farther to the north and east. Vagrants have 
occurred north to Sette Cama (2 degrees and 32 minutes South 
(2[deg]32'S)), Gabon, on Africa's west coast and to Inhaca Island 
(26[deg]58'S) and the Limpopo River mouth (24[deg]45'S), Mozambique, on 
the east coast of Africa (Shelton et al. 1984, p. 219; Hockey et al. 
2005, p. 632). A coastal species, they are generally spotted within 7.5 
miles (mi) (12 kilometers (km)) of the shore.
    There has been abandonment of breeding colonies and establishment 
of new colonies within the range of the species. Within the Western 
Cape region in southwestern South Africa, for example, penguin numbers 
at the two easternmost colonies (on Dyer and Geyser Islands) and three 
northernmost colonies (on Lambert's Bay and Malgas

[[Page 77334]]

and Marcus Islands) decreased, while the population more than doubled 
over the 1992-2003 period at five colonies, including the two largest 
(Dassen and Robben Islands) (du Toit et al. 2003, p. 1). The most 
significant development between 1978 and the 1990s was the 
establishment of three colonies that did not exist earlier in the 20th 
century--Stony Point, Boulder's Beach in False Bay, and Robben Island, 
which now supports the third largest colony for the species (du Toit et 
al. 2003, p. 1; Kemper et al. 2007, p. 326).
    African penguins are colonial breeders. They breed mainly on rocky 
offshore islands, either nesting in burrows they excavate themselves or 
in depressions under boulders or bushes, manmade structures, or large 
items of jetsam. Historically, they dug nests in the layers of sun-
hardened guano (bird excrement) that existed on most islands. However, 
in the 19th century, European and North American traders exploited 
guano as a source of nitrogen, denuding islands of their layers of 
guano (Hockey et al. 2005, p. 633; du Toit et al. 2003, p. 3).
    African penguins have an extended breeding season; colonies are 
observed to breed year-round on offshore islands (Brown et al. 1982, p. 
77). Broad regional differences do exist, though, and the peak of the 
breeding season in Namibia (November and December) tends to be earlier 
than the peak for South Africa (March to May). Breeding pairs are 
considered monogamous; about 80 to 90 percent of pairs remain together 
in consecutive breeding seasons. The same pair will generally return to 
the same colony, and often the same nest site each year. The male 
carries out nest site selection, while nest building is by both sexes.
    Although population statistics vary from year to year, studies at a 
number of breeding islands revealed mean reported adult survival values 
per year of 0.81 (Crawford et al. 2006, p. 121). African penguins have 
an average lifespan of 10-11 years in the wild, the females reaching 
sexual maturity at the age of 4 years and the males at the age of 5 
years. The highest recorded age in the wild is greater than 27 years 
(Whittington et al. 2000b, p. 81); however, several individual birds 
have lived to be up to 40 years of age in captivity.
    Feeding habitats of the African penguin are dictated by the unique 
marine ecosystem of the coast of South Africa and Namibia. The Benguela 
ecosystem, encompassing one of the four major coastal upwelling 
ecosystems in the world, is situated along the coast of southwestern 
Africa. It stretches from east of the Cape of Good Hope in the south to 
the Angola Front to the north, where the Angola Front separates the 
warm water of the Angola current from the cold Benguela water (Fennel 
1999, p. 177). The Benguela ecosystem is an important center of marine 
biodiversity and marine food production, and is one of the most 
productive ocean areas in the world, with a mean annual primary 
productivity about six times higher than that of the North Sea 
ecosystem. The rise of cold, nutrient-rich waters from the ocean depths 
to the warmer, sunlit zone at the surface in the Benguela produces rich 
feeding grounds for a variety of marine and avian species. The Benguela 
ecosystem historically supports a globally significant biomass of 
zooplankton, fish, sea birds, and marine mammals, including the African 
penguin's main diet of anchovy (Engraulius encrasicolus) and Pacific 
sardine (Sardinops sagax) (Berruti et al. 1989, pp. 273-335).
    The principal upwelling center in the Benguela ecosystem is 
historically situated in southern Namibia, and is the most concentrated 
and intense found in any upwelling regime. It is unique in that it is 
bounded at both northern and southern ends by warm water systems, in 
the eastern Atlantic and the Indian Ocean's Agulhas current, 
respectively. Sharp horizontal gradients (fronts) exist at these 
boundaries with adjacent ocean systems (Berruti et al. 1989, p. 276).
    African penguins prey upon small fish, as well as squid and krill. 
Studies conducted between 1953 and 1992 showed that anchovies and 
sardines contributed 50 to 90 percent by mass of the African penguin's 
diet (Crawford et al. 2006, p. 120). Trends in regional populations of 
the African penguin have been shown to be related to long-term changes 
in the abundance and distribution of these two fish species (Crawford 
1998, p. 355; Crawford et al. 2006, p. 122).
    Most spawning by anchovy and sardine takes place on the Agulhas 
Bank, which is to the southeast of Robben Island, from August to 
February (Hampton 1987, p. 908). Young-of-the-year migrate southward 
along the west coast of South Africa from March until September, past 
Robben Island to join shoals of mature fish over the Agulhas Bank 
(Crawford 1980, p. 651). The southern Benguela upwelling system off the 
west coast of South Africa is characterized by strong seasonal patterns 
in prevailing wind direction, which result in seasonal changes in 
upwelling intensity. To produce adequate survival of their young, fish 
reproductive strategies are generally well-tuned to the seasonal 
variability of their environment (Lehodey et al. 2006, p. 5011). In the 
southern Benguela, intense wind-mixing transport of surface waters 
creates an unfavorable environment for fish to breed. As a result, both 
anchovy and sardine populations have developed a novel reproductive 
strategy that is tightly linked to the seasonal dynamics of major local 
environmental processes--spatial separation between spawning and 
nursery grounds. For both species, eggs spawned over the western 
Agulhas Bank (WAB) are transported to the productive west coast nursery 
grounds via a coastal jet, which acts like a ``conveyor belt'' to 
transport early life stages from the WAB spawning area to the nursery 
grounds (Lehodey et al. 2006, p. 5011).
    The distance that African penguins have to travel to find food 
varies both temporally and spatially according to the season. Off 
western South Africa, the mean foraging range of penguins that are 
feeding chicks has been recorded to be 5.7 to 12.7 mi (9 to 20 km) 
(Petersen et al. 2006, p. 14), mostly within 1.9 mi (3 km) of the coast 
(Berruti et al. 1989, p. 307). Foraging duration during chick 
provisioning may last anywhere from 8 hours to 3 days, the average 
duration being around 10-13 hours (Petersen et al. 2006, p. 14). Travel 
distance from the breeding colony is more limited when feeding young. 
Outside the breeding season, adults generally remain within 248 mi (400 
km) of their breeding locality, while juveniles regularly move in 
excess of 621 mi (1,000 km) from their natal island (Randall 1989, p. 
    During the non-breeding season, African penguins forage on the 
Agulhas Bank. Underhill et al. (2007, p. 65) suggested that the molt 
period of African penguins is closely tied to the spawning period of 
sardine and anchovy at the Agulhas Bank. Pre-molt birds travel long 
distances to the bank to fatten up during this time of the most 
predictable food supply of the year. This reliable food source, and the 
need to gain energy prior to molting, is hypothesized to be the most 
important factor dictating the annual cycle of penguins. In fact, adult 
birds are often observed to abandon large chicks in order to move into 
this critical pre-molt foraging mode. The South African National 
Foundation for the Conservation of Coastal Birds (SANCCOB) rescue 
facility took in over 700 orphaned penguin chicks from Dyer Island in 
2005-06. Parents abandoned chicks as they began to molt (SANCCOB 2006, 
p. 1; SANCCOB 2007a, p. 1). The increasing observation of abandonment 
is perhaps related to a slight trend

[[Page 77335]]

toward earlier molting seasons (Underhill et al. 2007, p. 65).
    There has been a severe historical decline in African penguin 
numbers in both the South African and Namibian populations. This 
decline is accelerating at the present time. The species declined from 
millions of birds in the early 1900s (1.4 million adult birds at Dassen 
Island alone in 1910) (Ellis et al. 1998, p. 116) to 141,000 pairs in 
1956-57 to 69,000 pairs in 1979-80 to 57,000 pairs in 2004-05, and to 
about 36,188 pairs in 2006 (Kemper et al. 2007, p. 327). Crawford 
(2007, in litt.) reported that from 2006-2007, the overall population 
declined by 12 percent to 31,000 to 32,000 pairs.
    The species is distributed in about 32 colonies in three major 
clusters. In South Africa in 2006, there were 11,000 pairs in the first 
cluster at the Eastern Cape, and about 21,000 in the second cluster at 
the Western Cape colonies, with 13,283 of these pairs at Dassen Island 
and 3,697 at Robben Island. South African totals were down from 32,786 
pairs in 2006 to 28,000 pairs in 2007. There were about 3,402 pairs in 
the third major cluster in Namibia. The Namibian population has 
declined by more than 75 percent since the mid-20th century (from 
42,000 pairs in 1956-57) and has been decreasing 2.5 percent per year 
between 1990 (when there were 7,000 to 8,000 pairs) and 2005 (Kemper et 
al. 2007, p. 327; Underhill et al. 2007, p. 65; Roux et al. 2007a, p. 
    The African penguin is listed as `Vulnerable' on the 2007 
International Union for Conservation of Nature (IUCN) Red List on the 
basis of steep population declines (Birdlife International 2007, p. 1), 
but given the 56 percent decline observed over 3 generations, there is 
discussion in the most recent revision of the conservation status of 
the species of changing that Red List status to `Endangered' if the 
declines continue (Kemper et al. 2007, p. 327). That same assessment, 
based on 2006 data, concluded that the Namibian population should 
already be regarded as Red List `Endangered' by IUCN criteria with the 
probability of extinction of the African penguin from this northern 
cluster during the 21st century rated as high (Kemper et al. 2007, p. 
    There are about 32 breeding colonies (Kemper et al. 2007, p. 327). 
Breeding no longer occurs at eight localities where it formerly 
occurred or has been suspected to occur--Seal, Penguin, North Long, 
North Reef, and Albatross Islands in Namibia, and Jacobs Reef, Quoin, 
and Seal (Mossel Bay) Islands in South Africa (Crawford et al. 1995a, 
p. 269). In the 1980s, breeding started at two mainland sites in South 
Africa (Boulder's Beach and Stony Point) for which no earlier records 
of breeding exist. There is no breeding along the coast of South 
Africa's Northern Cape Province, which lies between Namibia and Western 
Cape Province (Ellis et al. 1998, p. 115).

Summary of Factors Affecting the Species

    Section 4(a)(1) of the Act (16 U.S.C. 1533(a)(1)) and regulations 
issued to implement the listing provisions of the Act (50 CFR part 424) 
establish the procedures for adding species to the Federal lists of 
endangered and threatened wildlife and plants. We may determine a 
species to be an endangered or threatened species due to one or more of 
the five factors described in section 4(a)(1) of the Act. These factors 
and their application to the African penguin are discussed below.

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of African Penguin's Habitat or Range

    The habitat of the African penguin consists of terrestrial breeding 
and molting sites and the marine environment, which serves as a 
foraging range both during and outside of the breeding season.
    Modification of their terrestrial habitat is a continuing threat to 
African penguins. This began in the mid-1880s with the mining of 
seabird guano at islands colonized by the African penguin and other 
seabirds in both South Africa and Namibia. Harvesting of the guano cap 
began in 1845 (du Toit et al. 2003, p. 3; Griffin 2005, p. 16) and 
continued over decades, denuding the islands of guano. Deprived of 
their primary nest-building material, the penguins were forced to nest 
in the open, where their eggs and chicks are more vulnerable to 
predators such as kelp gulls (Larus dominicanus) (Griffin 2005, p. 16). 
Additionally, instead of being able to burrow into the guano, where 
temperature extremes are ameliorated, penguins nesting in the open are 
subjected to heat stress (Shannon and Crawford 1999, p. 119). Adapted 
for life in cold temperate waters, they have insulating fatty deposits 
to prevent hypothermia and black-and-white coloring that provides 
camouflage from predators at sea. These adaptations cause problems of 
overheating while they are on land incubating eggs and brooding chicks 
during the breeding season. Although guano harvesting is now prohibited 
in penguin colonies, many penguins continue to suffer from the lack of 
protection and heat stress due to the loss of this optimal breeding 
habitat substrate. We have not identified information on how quickly 
guano deposits may build up again to depths which provide suitable 
burrowing substrate, but hypothesize it is a matter of decades.
    In Namibia, low-lying African penguin breeding habitat is being 
lost due to flooding from increased coastal rainfall and sea level rise 
of 0.07 inches (1.8 millimeters) a year over the past 30 years (Roux et 
al. 2007b, p. 6). Almost 11 percent of the nests on the four major 
breeding islands (which contain 96 percent of the Namibian population) 
are experiencing a moderate to high risk of flooding (Roux et al. 
2007b, p. 6). Continued increases in coastal flooding from rising sea 
levels predicted by global and regional climate change models (Bindoff 
et al. 2007, pp. 409, 412) are predicted to increase the number and 
proportion of breeding sites at risk and lead to continued trends of 
decreased survival and decreased breeding success (Roux et al. 2007b, 
p. 6).
    Competition for breeding habitat with Cape fur seals (Arctocephalus 
pusillus pusillus) has been cited as a reason for abandonment of 
breeding at five former breeding colonies in Namibia and South Africa, 
and expanding seal herds have displaced substantial numbers of breeding 
penguins at other colonies (Ellis et al. 1998, p. 120; Crawford et al. 
1995a, p. 271).
    Changes to the marine habitat present a significant threat to 
populations of African penguins. African penguins have a long history 
of shifting colonies and fluctuations in numbers at individual colonies 
in the face of shifting food supplies (Crawford 1998, p. 362). These 
shifts are related to the dynamics between prey species and to 
ecosystem changes, such as reduced or enhanced upwelling (sometimes 
associated with El Ni[ntilde]o events), changes in sea surface 
temperature, or movement of system boundaries. In addition to such 
continuing cyclical events, the marine habitats of the Western Cape and 
Namibian populations of African Penguin are currently experiencing 
directional ecosystem changes attributable to global climate change; 
overall sea surface temperature increases have occurred during the 
1900s and, as detailed above, sea level has been rising steadily in the 
region over the past 30 years (Bindoff et al. 2007, p. 391; Fidel and 
O'Toole 2007, pp. 22, 27; Roux et al. 2007a, p. 55).
    At the Western Cape of South Africa, a shift in sardine 
distribution to an area outside the current breeding range of the

[[Page 77336]]

African penguin has led to a decrease of 45 percent between 2004 and 
2006 in the number of penguins breeding in the Western Cape and 
increased adult mortality as the availability of sardine decreased for 
the major portion of the African penguin population located in that 
region (Crawford et al. 2007a, p. 8). From 1997 to the present, the 
distribution of sardine concentrations off South Africa has steadily 
shifted to the south and east, from its long-term location off colonies 
at Robben Island to east of Cape Infanta on the southern coast of South 
Africa east of Cape Agulhas, 248 mi (400 km) from the former center of 
abundance (Crawford et al. 2007a, p. 1).
    This shift is having severe consequences for penguin populations. 
Off western South Africa, the foraging range of penguins that are 
feeding chicks is estimated to be 5.7 to 12.7 mi (9 to 20 km) (Petersen 
et al. 2006, p. 14), and while foraging they generally stay within 1.9 
mi (3 km) of the coast (Berruti et al. 1989, p. 307). The southeastern 
most Western Cape Colonies occur at Dyer Island, which is southeast of 
Cape Town and about 47 mi (75 km) northwest of Cape Agulhas. Therefore, 
the current sardine concentrations are out of the foraging range of 
breeding adults at the Western Cape breeding colonies (Crawford et al. 
2007a, p. 8), which between 2004 and 2006 made up between 79 and 68 
percent of the rapidly declining South African population (Crawford et 
al. 2007a, p. 7).
    Further, as described in Crawford (1998, p. 360), penguin 
abundances at these Western Cape colonies have historically shifted 
north and south according to sardine and anchovy abundance and 
accessibility from breeding colonies, but the current prey shift is to 
a new center of abundance outside the historic breeding range of this 
penguin species. While one new colony has appeared east of existing 
Western Cape colonies, more significantly, there has been a 45 percent 
decrease in breeding pairs in the Western Cape Province and a 
significant decrease in annual survival rate for adult penguins from 
0.82 to 0.68 (Crawford et al. 2007a, p. 8). Exacerbating the problem of 
shifting prey, the authors reported that the fishing industry, which is 
tied to local processing capacity in the Western Cape, is competing 
with the penguins for the fish that remain in the west, rather than 
following the larger sardine concentrations to the east (Crawford et 
al. 2007a, pp. 9-10).
    Changes in the northern Benguela ecosystem are also affecting the 
less numerous Namibian population of the African penguin. Over the past 
3 decades, sea surface temperatures have steadily increased and 
upwelling intensity has decreased in the northern Benguela region. 
These long-term changes have been linked to declines in penguin 
recruitment at the four main breeding islands from 1993-2004 (Roux et 
al. 2007a, p. 55). Weakened upwelling conditions have a particular 
impact on post-fledge young penguins during their first year at sea, 
explaining 65 percent of the variance in recruitment during that period 
(Roux et al. 2007b, p. 9). These na[iuml]ve birds are particularly 
impacted by increasingly scarce or hard-to-find prey. Even after heavy 
fishing pressure has been eased in this region in the 1990s, sardine 
stocks in Namibia have failed to recover, causing economic shifts for 
humans and foraging difficulties for penguins. This failure to recover 
has been attributed to the continuing warming trend and to increased 
horse mackerel (Trachurus trachurus) stocks, which have replaced 
sardines and anchovies (Benguela Current Large Marine Ecosystem (BCLME) 
2007, pp. 2-3).
    El Ni[ntilde]o events also impact the Benguela marine ecosystem on 
a decadal frequency. These occur when warm seawater from the equator 
moves along the southwest coast of Africa towards the pole and 
penetrates the cold up-welled Benguela current. During the 1995 event, 
for example, the entire coast from Angola's Cabinda province to central 
Namibia was covered by abnormally warm water--in places up to 46 
degrees Fahrenheit ([deg]F) (8 degrees Celsius ([deg]C)) above 
average--to a distance up to 186 mi (300 km) offshore (Science in 
Africa 2004, p. 2). During the last two documented events there have 
been mass mortalities of penguin prey species, prey species recruitment 
failures, and mass mortalities of predator populations, including 
starvation of over half of the seal population. The penguin data sets 
are not adequate to estimate the effects of Benguela El Ni[ntilde]o 
events at present, but based on previous observations of impact on the 
entire food web of the northern Benguela, they are most likely to be 
negative (Roux et al. 2007b, p. 12). With increasing temperatures 
associated with climate change in the northern Benguela ecosystem, the 
frequency and intensity of Benguela El Ni[ntilde]o events and their 
concomitant effects on the habitat of the African penguin are predicted 
to increase in the immediate upcoming years as new El Ni[ntilde]o 
events emerge (Roux et al. 2007b, p. 5).
    A third factor in the marine habitat of the Namibian populations is 
the extent of sulfide eruptions during different oceanographic 
conditions. Hydrogen sulfide accumulates in bottom sediments and erupts 
to create hypoxic (a reduced concentration of dissolved oxygen in a 
water body leading to stress and death in aquatic organisms) or even 
anoxic conditions over large volumes of the water column (Ludynia et 
al. 2007, p. 43; Fidel and O'Toole 2007 p. 9). Penguins, whose foraging 
range is restricted by the central place of their breeding colony 
location (Petersen et al. 2006, p. 24), are forced to forage in these 
areas, but their preferred prey of sardines and anchovies is unable to 
survive in these conditions. African penguins foraging in areas of 
sulfide eruptions expend greater amounts of energy in pursuit of 
available food, primarily the pelagic goby (Sufflogobius bibarbatus), 
which has lower energy content than their preferred prey. These 
sulphide eruptions, like the El Ni[ntilde]o anomalies, are predicted to 
increase with continuing climate change (Bakun and Weeks 2004, pp. 
1021-1022; Ludynia et al. 2007, p. 43). The Namibian population of 
African penguins, restricted in their breeding locations, will continue 
to be negatively impacted by this ongoing regime shift away from 
sardines and anchovies to pelagic goby and jellyfish.
    We have identified a number of threats to the coastal and marine 
habitat of the African penguin which have operated in the past, are 
impacting the species now and will continue to impact the species in 
the immediate coming years and into the future. On the basis of this 
analysis, we find that the present and threatened destruction, 
modification, or curtailment of both its terrestrial and marine 
habitats is a threat to the African penguin throughout all of its 

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 

[[Page 77337]]

emanate from the Namibian islands (Ellis et al. 1998, p. 121). Use for 
non-lethal, scientific purposes is highly regulated and does not pose a 
threat to populations (See analysis under Factor D).
    On the basis of this analysis, we find that overutilization for 
commercial, recreational, scientific, or educational purposes is not a 
threat to the African penguin in any portion of its range now or in the 
foreseeable future.

Factor C. Disease or Predation

    African penguins are hosts to a variety of parasites and diseases 
(Ellis 1998, pp. 119-120), but we find that disease is not a threat to 
the African penguin in any portion of its range. The primary concern is 
preventing the transmission of disease from the large numbers of 
African penguins rehabilitated after oiling to wild populations 
(Graczyk et al. 1995, p. 706).
    Predation by Cape fur seals of protected avian species has become 
an issue of concern to marine and coastal managers in the Benguela 
ecosystem as these protected seals have rebounded to become abundant 
(1.5 to 2 million animals) (David et al. 2003, pp. 289-292). The seals 
are killing substantial numbers of seabirds, including African penguins 
and threatening the survival of individual colonies. At Dyer Island, 
842 penguins in a colony of 9,690 individuals were killed in 1995-96 
(Marks et al. 1997, p. 11). At Lambert's Bay, seals kill 4 percent of 
adult African penguins annually (Crawford et al. 2006, p. 124). In one 
instance, South Africa's Marine and Coastal Management Department 
within the Department of Environmental Affairs and Tourism instigated 
culling of the fur seals where they threatened the Cape Gannet (Morus 
capensis) (David et al. 2003, p. 290), but we are not aware of a 
similar program related to reducing the ongoing threat of predation by 
Cape fur seals on African penguins. Abandoned eggs and chicks are often 
lost to predators such as the kelp gull and other species. 
Additionally, without protection of burrows, penguin eggs and chicks 
are more vulnerable to predators (Griffin 2005, p. 16).
    On the basis of this information, we find that predation, in 
particular by Cape Fur Seals that prey on significant numbers of 
African penguins at their breeding colonies, is a threat to the African 
penguin throughout all of its range, and we have no reason to believe 
the threat will be ameliorated in the foreseeable future.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    Under South Africa's Biodiversity Act of 2004, the African penguin 
is classified as a protected species, defined as an indigenous species 
of ``high conservation value or national importance'' that requires 
national protection (Republic of South Africa 2004, p. 52; Republic of 
South Africa 2007, p. 10). Activities which may be carried out with 
respect to such species are restricted and cannot be undertaken without 
a permit (Republic of South Africa 2004, p. 50). Restricted activities 
include among other things, hunting, capturing, or killing living 
specimens of listed species by any means, collecting specimens of such 
species (including the animals themselves, eggs, or derivatives or 
products of such species), importing, exporting or re-exporting, having 
such specimens within one's physical control, or selling or otherwise 
trading in such specimens (Republic of South Africa 2004, p. 18).
    The species is classified as `endangered' in Nature and 
Environmental Conservation Ordinance, No. 19 of the Province of the 
Cape of Good Hope (Western Cape Nature Conservation Laws Amendment Act 
2000, p. 88), providing protection from hunting or possessing this 
species without a permit. According to Ellis et al. (1998, p. 115), 
this status applies to the Northern Cape, Western Cape, and Eastern 
Cape Provinces as well. Kemper et al. (2007, p. 326) reported that 
African penguin colonies in South Africa are all protected under 
authorities ranging from local, to provincial, to national park status. 
While Ellis et al. (1998, p. 115) reported that in Namibia there is no 
official legal status for African penguins, Kemper et al. (2007, p. 
326) reported in a more recent review that all Namibian breeding 
colonies are under some protection, from restricted access to national 
park status. While we have no information that allows us to evaluate 
their overall effectiveness, these national, regional, and local 
measures to prohibit activities involving African penguins without 
permits issued by government authorities and to control or restrict 
access to African penguin colonies are appropriate to protecting 
African penguins from land-based threats, such as harvest of penguins 
or their eggs, disturbance from tourism activities, and impacts from 
unregulated, scientific research activities.
    The South African Marine Pollution (Control and Civil Liability) 
Act (No. 6 of 1981) (SAMPA) provides for the protection of the marine 
environment (the internal waters, territorial waters, and exclusive 
economic zone) from pollution by oil and other harmful substances, and 
is focused on preventing pollution and determining liability for loss 
or damage caused by the discharge of oil from ships, tankers, and 
offshore installations. The SAMPA prohibits the discharge of oil into 
the marine environment, sets requirements for reporting discharge or 
likely discharge and damage, and designates the South African Maritime 
Safety Authority the powers of authority to take steps to prevent 
pollution in the case of actual or likely discharge and to remove 
pollution should it occur, including powers of authority to direct ship 
masters and owners in such situations. The SAMPA also contains 
liability provisions related to the costs of any measures taken by the 
authority to reduce damage resulting from discharge (Marine Pollution 
(Control and Civil Liability) Act of 1981 2000, pp. 1-22).
    South Africa is a signatory to the 1992 International Convention on 
Civil Liability for Oil Pollution Damages and its Associate Fund 
Convention (International Fund for Animal Welfare (IFAW) 2005, p. 1), 
and southern South African waters have been designated as a Special 
Area by the International Maritime Organization, providing measures to 
protect wildlife and the marine environment in an ecologically 
important region used intensively by shipping (International Convention 
for the Prevention of Pollution from Ships (MARPOL) 2006, p. 1). One of 
the prohibitions in such areas is on oil tankers washing their cargo 
    Despite these existing regulatory mechanisms, the African penguin 
continues to decline due to the effects of habitat destruction, 
predation, fisheries competition, and oil pollution. We find that these 
regulatory and conservation measures have been insufficient to 
significantly reduce or remove the threats to the African penguin and, 
therefore, that the inadequacy of existing regulatory mechanisms is a 
threat to this species throughout all of its range.

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

    Over the period from 1930 to the present, fisheries harvest by man 
and more recently fisheries competition with increasingly abundant seal 
populations have hindered the African penguin's historical ability to 
rebound from oceanographic changes and prey regime shifts. The reduced 

[[Page 77338]]

capacity of the Benguela ecosystem, presents a significant threat to 
survival of African penguins (Crawford et al. 2007b, p. 574).
    Crawford (1998, pp. 355-364) described the historical response of 
African penguins to regime shifts between their two primary prey 
species, sardines and anchovies, both in terms of numbers and colony 
distribution from the 1950s through the 1990s. There was a repeated 
pattern of individual colony collapse in some areas and, as the new 
food source became dominant, new colony establishment and population 
increase in other areas. Crawford (1998, p. 362) hypothesized that 
African penguins have coped successfully with many previous sardine-
anchovy shifts. Specific mechanisms, such as the emigration of first-
time breeders from natal colonies to areas of greater forage abundance 
may have historically helped them successfully adapt to changing prey 
location and abundance. However, over the period from the 1930s to the 
1990s, competition for food from increased commercial fish harvest and 
from burgeoning fish take by recovering populations of the Cape fur 
seal appears to have overwhelmed the ability of African penguins to 
compete; the take of fish and cephalopods by man and seals increased by 
2 million tons (T) (1.8 million tonnes (t)) per year from the 1930s to 
the 1980s (Crawford 1998, p. 362). Crawford et al. (2007b, p. 574) 
conclude that due to the increased competition with purse-seine (net) 
fisheries and burgeoning fur seal populations, the carrying capacity of 
the Benguela ecosystem for African penguins has declined by 80 to 90 
percent from the 1920s to the present day. In the face of increased 
competition and reduced prey resources, African penguin populations are 
no longer rebounding successfully from underlying prey shifts, and they 
have experienced sharply decreased reproductive success.
    These negative effects of decreased prey availability on 
reproductive success and on population size have been documented. 
Breeding success of African penguins was measured at Robbin Island from 
1989-2004 (Crawford et al. 2006, p. 119) in concert with hydro-acoustic 
surveys to estimate the spawner biomass of anchovy and sardine off 
South Africa. When the combined spawner biomass of fish prey was less 
than 2 million T (1.8 million t), pairs of African penguins fledged an 
average of only 0.46 chicks annually. When it was above 2 million T 
(1.8 million t), annual breeding success had a mean value of 0.73 
chicks per pair (Crawford et al. 2006, p. 119). The significant 
relationships obtained between breeding success of African penguins and 
estimates of the biomass of their fish prey confirm that reproduction 
is influenced by the abundance of food (Adams et al. 1992, p. 969; 
Crawford et al. 1999, p. 143). The levels of breeding success recorded 
in the most recent studies of the African penguin were found to be 
inadequate to sustain the African penguin population (Crawford et al. 
2006, p. 119).
    In addition to guano collection, as described in Factor A, 
disturbance of breeding colonies may arise from other human activities 
such as angling and swimming, tourism, and mining (Ellis et al. 1998, 
p. 121). Such disturbances can cause the penguins to panic and desert 
their nesting sites. Exploitation and disturbance by humans is probably 
the reason for penguins ceasing to breed at four colonies, one of which 
has since been re-colonized (Crawford et al. 1995b, p. 112). Burrows 
can be accidentally destroyed by humans walking near breeding sites, 
leading to penguin mortality.
    Oil and chemical spills can have direct effects on the African 
penguin. Based on previous incidents and despite national and 
international measures to prevent and respond to oil spills referenced 
in Factor D, we consider this to be a significant threat to the 
species. African penguins live along the major global transport route 
for oil and have been frequently impacted by both major and minor oil 
spills. Since 1948, there have been 13 major oil spill events in South 
Africa, each of which oiled from 500 to 19,000 African penguins. Nine 
of these involved tanker collisions or groundings, three involved oil 
of unknown origins, and one involved an oil supply pipeline bursting in 
Cape Town harbor (Underhill 2001, pp. 2-3). In addition to these major 
events, which are described in detail below, there is a significant 
number of smaller spill events, impacting smaller number of birds. 
These smaller incidental spills result in about 1,000 oiled penguins 
being brought to SANCCOB, which has facilities to clean oiled birds, 
over the course of each year (Adams 1994, pp. 37-38; Underhill 2001, p. 
1). Overall, from 1968 to the present, SANCCOB (2007b, p. 2), has 
handled more than 83,000 oiled sea birds, with the primary focus on 
African penguins.
    The most recent and most serious event, the Treasure spill, 
occurred on June 23, 2000, when the iron ore carrier Treasure sank 
between Robben and Dassen Islands, where the largest and third-largest 
colonies of African penguin occur (Crawford et al. 2000, pp. 1-4). 
Large quantities of oil came ashore at both islands. South Africa 
launched a concerted effort to collect and clean oiled birds, to move 
non-oiled birds away from the region, to collect penguin chicks for 
artificial rearing, and to clean up oiled areas. Nineteen thousand 
African penguins were oiled and brought for cleaning to the SANCCOB 
facility. An additional 19,500 penguins were relocated to prevent them 
from being oiled. A total of 38,500 birds were handled in the context 
of this major oil spill. The last oil was removed from Treasure on July 
18, 2000. Two months after the spill, mortality of African penguins 
from the spill stood at 2,000 adults and immature birds and 4,350 
chicks (Crawford et al. 2000, p. 9). The Avian Demography Unit (ADU) of 
the University of Cape Town has undertaken long-term monitoring of 
penguins released after spill incidents. Response in the Treasure spill 
and success in rehabilitation have shown that response efforts have 
improved dramatically. The next most serious spill of the Apollo Sea, 
which occurred in June 1994, released about 2,401 T (2,177 t) of fuel 
oil near Dassen Island. About 10,000 penguins were contaminated with 
only 50 percent of these birds successfully de-oiled and put back in 
the wild. Over the 10 years after this spill, the ADU followed banded 
released birds to monitor their survival and reproductive histories 
(Wolfaardt et al. 2007, p. 68). They found that success in restoring 
oiled birds to the point that they attempt to breed after release has 
steadily improved. The breeding success of restored birds and the 
growth rates of their chicks, however, are lower than for non-oiled 
birds. Nevertheless, because adults could be returned successfully to 
the breeding population, they concluded that de-oiling and 
reintroduction of adults are effective conservation interventions 
(Wolfaardt et al. 2007, p. 68).
    Therefore, we find that immediate and ongoing competition for food 
resources with fisheries and other species, overall decreases in food 
abundance, and ongoing severe direct and indirect threat of oil 
pollution are threats to the African penguin throughout all of its 

Foreseeable Future

    The term ``threatened species'' means any species (or subspecies 
or, for vertebrates, distinct population segments) that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act does not define the 
term ``foreseeable future.'' For the purpose of this

[[Page 77339]]

proposed rule, we defined the ``foreseeable future'' to be the extent 
to which, given the amount and substance of available data, we can 
anticipate events or effects, or reliably extrapolate threat trends, 
such that we reasonably believe that reliable predictions can be made 
concerning the future as it relates to the status of the species at 
    In considering the foreseeable future as it relates to the status 
of the African penguin, we considered the threats acting on the 
species, as well as population trends. We considered the historical 
data to identify any relevant existing trends that might allow for 
reliable prediction of the future (in the form of extrapolating the 
trends). We also considered whether we could reliably predict any 
future events (not yet acting on the species and therefore not yet 
manifested in a trend) that might affect the status of the species.
    The African penguin is in serious decline throughout its range, and 
this decline is accelerating at the present time in all three 
population clusters. We have identified a number of threats to the 
coastal and marine habitat of the African penguin, and we predict that 
these threats are reasonably likely to continue to result in African 
penguin population declines in the foreseeable future. We have found 
that predation by Cape Fur Seals is a threat to the African penguin 
throughout all of its range, and we have no reason to believe the 
threat will be ameliorated within the foreseeable future. We have found 
that regulatory and conservation measures have been insufficient to 
significantly reduce or remove the threats to the African penguin, and 
we do not expect this to change in the foreseeable future. Finally, we 
have found that competition for food resources with fisheries and other 
species, decreases in food abundance, and severe direct and indirect 
threats of oil pollution are threats to the African penguin, and based 
on the information available, we have no reason to believe that these 
threats will lessen in the foreseeable future.

African Penguin Finding

    The African penguin is in serious decline throughout its range. 
This decline is accelerating at the present time in all three 
population clusters, with a one-year decrease of 12 percent from 2006-
2007 to between 31,000 to 32,000 breeding pairs, and an overall 3-year 
decline of 45 percent from 2004-2007. These verified, accelerating, and 
immediate declines, across all areas inhabited by African penguin 
populations are directly attributable to ongoing threats that are 
severely impacting the species at this time. Historical threats to 
terrestrial habitat, such as destruction of nesting areas for guano 
collection and the threat of direct harvest, have been overtaken by 
long-term competition for prey from human fisheries beginning in the 
1930s. This competition is now exacerbated by the increased role of 
burgeoning Cape fur seal populations throughout the range in competing 
with commercial fisheries for the prey of the African penguin (Crawford 
1998, p. 362). In combination, competition with fisheries and fur seals 
have reduced the carrying capacity of the marine environment for 
African penguins to 10 to 20 percent of its 1920s value and by 
themselves represent significant immediate threats to the African 
penguin throughout all of its range.
    Changes in the different portions of the range of the African 
penguin are adding additional stressors to the overall declines in the 
prey of African penguins. In Namibia, the fisheries declines in the 
marine environment are being exacerbated by long-term declines in 
upwelling intensities and increased sea surface temperatures. These 
changes have hampered the recovery of sardine and anchovy populations 
in the region even as fishing pressure on those species has been 
relaxed, forcing penguins to shift to a less nutritious prey, the 
pelagic goby. The changes have also forced a regime shift in the 
Benguela ecosystem to other fish species, which are not the prey of 
African penguins. The phenomenon of sulfide eruption has further 
hampered the recovery of the food base.
    In the Western Cape, in addition to the severe fisheries declines 
and severe reduction of the carrying capacity of the marine 
environment, the primary food source of African penguins has, beginning 
in 1997, shifted consistently eastward to areas east of the 
southernmost tip of South Africa. Over the past decade, the primary 
food base for the most populous African penguin colonies in South 
Africa has shifted outside the accessible foraging range for those 
colonies. This shift has led to declines in penguin recruitment and 
significant decreases in adult survival and represents an additional 
significant immediate threat to the West Cape populations of the 
African penguin.
    On land, the effects of guano removal from penguin breeding islands 
continue to be felt in lack of predator protection and heat stress in 
breeding birds. Predation on penguins by kelp gulls and recovering Cape 
fur seals has become a predominant threat factor. In Namibia, where 
African penguin numbers are lowest, with only 3,402 pairs, low-lying 
islands have experienced flooding from increased rainfall and rising 
sea-levels, threatening 10 percent of the nests in the four major 
breeding colonies, further stressing a species under severe immediate 
threat from factors in the marine environment.
    Finally, the marine and coastal habitat of the African penguin lies 
on one of the world's busiest sea lanes. Despite improvements in oil 
spill response capability and global recognition of the importance of 
protecting these waters from the impacts of oil, catastrophic and 
chronic spills have been and continue to be the norm. The most recent 
catastrophic spill in 2000 in South Africa resulted in the oiling of 
19,000 penguins and the translocation of 19,500 more birds in direct 
danger from the spill. With the global population at a historical low 
(between 31,000 and 32,000 pairs), future oil spills, which consistent 
experience shows may occur at any time, pose a significant and 
immediate threat to the species throughout all of its range.
    We have carefully assessed the best scientific and commercial 
information available regarding the threats faced by this species. The 
African penguin is in serious decline throughout all of its range, and 
the decline is currently accelerating. This decline is due to threats 
of a high magnitude--(1) The immediate impacts of a reduced carrying 
capacity for the African penguin throughout its range due to fisheries 
declines and competition for food with Cape fur seals (severely 
exacerbated by rapid ongoing ecosystem changes in the marine 
environment at the northern end of the penguin's distribution and by 
major shifts of prey resources to outside of the accessible foraging 
range of breeding penguins at the southern end of distribution); (2) 
the continued threats to African penguins on land throughout their 
range from habitat modification and destruction and predation; and (3) 
the immediate and ongoing threat of oil spills and oil pollution to the 
African penguin. The severity of these threats to the African penguin 
within its breeding and foraging range puts the species in danger of 
extinction. Therefore, we find that the African penguin is in danger of 
extinction throughout all of its range.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, requirements for Federal 
protection, and prohibitions against certain practices. Recognition 
through listing results in public awareness, and encourages and results 
in conservation

[[Page 77340]]

actions by Federal governments, private agencies and groups, and 
    Section 7(a) of the Act, as amended, and as implemented by 
regulations at 50 CFR part 402, requires Federal agencies to evaluate 
their actions within the United States or on the high seas with respect 
to any species that is proposed or listed as endangered or threatened, 
and with respect to its critical habitat, if any is being designated. 
However, given that the African penguin is not native to the United 
States, no critical habitat is being proposed for designation in this 
    Section 8(a) of the Act authorizes limited financial assistance for 
the development and management of programs that the Secretary of the 
Interior determines to be necessary or useful for the conservation of 
endangered and threatened species in foreign countries. Sections 8(b) 
and 8(c) of the Act authorize the Secretary to encourage conservation 
programs for foreign endangered species and to provide assistance for 
such programs in the form of personnel and the training of personnel.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered and 
threatened wildlife. As such, these prohibitions would be applicable to 
the African penguin. These prohibitions, under 50 CFR 17.21, make it 
illegal for any person subject to the jurisdiction of the United States 
to ``take'' (take includes harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, collect, or to attempt any of these) within the 
United States or upon the high seas, import or export, deliver, 
receive, carry, transport, or ship in interstate or foreign commerce in 
the course of a commercial activity, or to sell or offer for sale in 
interstate or foreign commerce, any endangered wildlife species. It 
also is illegal to possess, sell, deliver, carry, transport, or ship 
any such wildlife that has been taken in violation of the Act. Certain 
exceptions apply to agents of the Service and State conservation 
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.22 for endangered species, and at 17.32 for threatened species. With 
regard to endangered wildlife, a permit must be issued for the 
following purposes: for scientific purposes, to enhance the propagation 
or survival of the species, and for incidental take in connection with 
otherwise lawful activities.

Peer Review

    In accordance with our joint policy with National Marine Fisheries 
Service, ``Notice of Interagency Cooperative Policy for Peer Review in 
Endangered Species Act Activities,'' published in the Federal Register 
on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at 
least three appropriate independent specialists regarding this proposed 
rule. The purpose of peer review is to ensure that our proposed rule is 
based on scientifically sound data, assumptions, and analyses. We will 
send copies of this proposed rule to the peer reviewers immediately 
following publication in the Federal Register. We will invite these 
peer reviewers to comment during the public comment period, on our 
specific assumptions and conclusions regarding the proposal to list the 
African penguin as endangered.
    We will consider all comments and information we receive during the 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, our final decision may differ from this 

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if we receive any requests for hearings. We must receive your request 
for a public hearing within 45 days after the date of this Federal 
Register publication (see DATES). Such requests must be made in writing 
and be addressed to the Chief of the Division of Scientific Authority 
at the address shown in the FOR FURTHER INFORMATION CONTACT section. We 
will schedule public hearings on this proposal, if any are requested, 
and announce the dates, times, and places of those hearings, as well as 
how to obtain reasonable accommodations, in the Federal Register at 
least 15 days before the first hearing.

Required Determinations

Regulatory Planning and Review (Executive Order 12866)

    The Office of Management and Budget has determined that this rule 
is not significant under Executive Order 12866.

National Environmental Policy Act (NEPA)

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

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988, and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

References Cited

    A complete list of all references cited in this proposed rule is 
available on the Internet at http://www.regulations.gov or upon request 
from the Division of Scientific Authority, U.S. Fish and Wildlife 


    The authors of this proposed rule are staff of the Division of 
Scientific Authority, U.S. Fish and Wildlife Service (see FOR FURTHER 

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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


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

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

    2. Amend Sec.  17.11(h) by adding a new entry for ``Penguin, 
African,'' in

[[Page 77341]]

alphabetical order under ``BIRDS'' to the List of Endangered and 
Threatened Wildlife to read as follows:

Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened

                                                                      * * * * * * *

                                                                      * * * * * * *
Penguin, African.................  Spheniscus demersus.  Atlantic Ocean--     Entire.............  E               ...........           NA           NA
                                                          South Africa,

                                                                      * * * * * * *

* * * * *

    Dated: December 2, 2008.
H. Dale Hall,
Director, U.S. Fish and Wildlife Service.
 [FR Doc. E8-29676 Filed 12-17-08; 8:45 am]