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77332 Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Proposed Rules

* * * * * FOR FURTHER INFORMATION CONTACT: Background Pamela Hall, Branch Chief, Division of Dated: December 2, 2008. Section 4(b)(3)(A) of the Act (16 H. Dale Hall, Scientific Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, U.S.C. 1533 (b)(3)(A)) requires the Director, U.S. Fish and Wildlife Service. Room 110, Arlington, VA 22203; Service to make a finding known as a [FR Doc. E8–29670 Filed 12–17–08; 8:45 am] telephone 703–358–1708; facsimile ‘‘90-day finding,’’ on whether a petition BILLING CODE 4310–55–P 703–358–2276. If you use a to add, remove, or reclassify a telecommunications device for the deaf from the list of endangered or (TDD), call the Federal Information threatened species has presented DEPARTMENT OF THE INTERIOR Relay Service (FIRS) at 800–877–8339. substantial information indicating that the requested action may be warranted. Fish and Wildlife Service SUPPLEMENTARY INFORMATION: To the maximum extent practicable, the Public Comments finding shall be made within 90 days 50 CFR Part 17 following receipt of the petition and We intend that any final action [FWS–R9–IA–2008–0068; 96000–1671– published promptly in the Federal resulting from this proposal will be as 0000–B6] Register. If the Service finds that the accurate and as effective as possible. petition has presented substantial RIN 1018–AV60 Therefore, we request comments or information indicating that the suggestions on this proposed rule. We Endangered and Threatened Wildlife requested action may be warranted particularly seek comments concerning: and Plants; 12-Month Finding on a (referred to as a positive finding), Petition To List the African (1) Biological, commercial, trade, or section 4(b)(3)(A) of the Act requires the (Spheniscus demersus) Under the other relevant data concerning any Service to commence a status review of Act, and threats (or lack thereof) to this species the species if one has not already been Proposed Rule To List the African and regulations that may be addressing initiated under the Service’s internal Penguin as Endangered Throughout those threats. candidate assessment process. In Its Range (2) Additional information concerning addition, section 4(b)(3)(B) of the Act the range, distribution, and population requires the Service to make a finding AGENCY: Fish and Wildlife Service, size of this species, including the within 12 months following receipt of Interior. locations of any additional populations the petition on whether the requested ACTION: Proposed rule and notice of 12- of this species. action is warranted, not warranted, or month petition finding. (3) Any information on the biological warranted but precluded by higher- or ecological requirements of the SUMMARY: We, the U.S. Fish and priority listing actions (this finding is species. Wildlife Service (Service), propose to referred to as the ‘‘12-month finding’’). list the African penguin (Spheniscus (4) Current or planned activities in the Section 4(b)(3)(C) of the Act requires demersus) as an endangered species areas occupied by the species and that a finding of warranted but under the Endangered Species Act of possible impacts of these activities on precluded for petitioned species should 1973, as amended (Act). This proposal, this species. be treated as having been resubmitted if made final, would extend the Act’s You may submit your comments and on the date of the warranted but protection to this species. This proposal materials concerning this proposed rule precluded finding, and is, therefore, also constitutes our 12-month finding by one of the methods listed in the subject to a new finding within 1 year on the petition to list this species. The ADDRESSES section. We will not and subsequently thereafter until we Service seeks data and comments from consider comments sent by e-mail or fax take action on a proposal to list or the public on this proposed rule. or to an address not listed in the withdraw our original finding. The Service publishes an annual notice of DATES: We will accept comments and ADDRESSES section. information received or postmarked on If you submit a comment via http:// resubmitted petition findings (annual or before February 17, 2009. We must www.regulations.gov, your entire notice) for all foreign species for which receive requests for public hearings, in comment—including any personal listings were previously found to be warranted but precluded. writing, at the address shown in the FOR identifying information—will be posted FURTHER INFORMATION CONTACT section on the Web site. If you submit a In this notice, we announce a by February 2, 2009. hardcopy comment that includes warranted 12-month finding and ADDRESSES: You may submit comments personal identifying information, you proposed rule to list one penguin taxon, by one of the following methods: may request at the top of your document the African penguin, as an endangered • Federal eRulemaking Portal: http:// that we withhold this information from species under the Act. We will www.regulations.gov. Follow the public review. However, we cannot announce the 12-month findings for the instructions for submitting comments. guarantee that we will be able to do so. ( forsteri), • U.S. mail or hand-delivery: Public We will post all hardcopy comments on southern rockhopper penguin (Eudyptes Comments Processing, Attn: [FWS–R9– http://www.regulations.gov. chrysocome), northern rockhopper IA–2008–0068]; Division of Policy and Comments and materials we receive, penguin (Eudyptes chrysolophus), Directives Management; U.S. Fish and as well as supporting documentation we Fiordland (Eudyptes Wildlife Service; 4401 N. Fairfax Drive, used in preparing this proposed rule, pachyrhynchus), erect-crested penguin Suite 222; Arlington, VA 22203. will be available for public inspection (Eudyptes sclateri), We will not accept comments by on http://www.regulations.gov, or by (Eudyptes chrysolophus), white- e-mail or fax. We will post all comments appointment, during normal business flippered penguin ( minor on http://www.regulations.gov. This hours, at the U.S. Fish and Wildlife albosignata), yellow-eyed penguin generally means that we will post any Service, Division of Scientific ( antipodes), and Humboldt personal information you provide us Authority, 4401 N. Fairfax Drive, Room penguin (Spheniscus humboldti) in one (see the Public Comments section below 110, Arlington, VA 22203; telephone or more subsequent Federal Register for more information). 703–358–1708. notice(s).

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Previous Federal Actions Conference in Hobart, Tasmania, 27, 2008, for failure to make a 12-month On November 29, 2006, the Service Australia, a quadrennial meeting of finding on the petition. On September 8, received a petition from the Center for penguin scientists from September 3–7, 2008, the Service entered into a Biological Diversity to list 12 penguin 2007 (during the open public comment Settlement Agreement with CBD, in species under the Act: Emperor period), to gather information and to which we agreed to submit to the penguin, southern rockhopper penguin, ensure that experts were aware of the Federal Register 12-month findings for northern rockhopper penguin, status review and the open comment the 10 species of , including Fiordland crested penguin, snares period. We also consulted with other the African penguin, on or before crested penguin (Eudyptes robustus), agencies and range countries in an effort December 19, 2008. erect-crested penguin, macaroni to gather the best available scientific We base our findings on a review of penguin, (Eudyptes and commercial information on these the best scientific and commercial schlegeli), white-flippered penguin, species. information available, including all During the public comment period, yellow-eyed penguin, African penguin, information received during the public we received over 4,450 submissions and . Among them, comment period. Under section from the public, concerned the ranges of the 12 penguin species 4(b)(3)(B) of the Act, we are required to governmental agencies, the scientific make a finding as to whether listing include Antarctica, Argentina, community, industry, and other Australian Territory Islands, Chile, each of the 10 species of penguins is interested parties. Approximately 4,324 warranted, not warranted, or warranted French Territory Islands, , New e-mails and 31 letters received by U.S. Zealand, Peru, South , and United but precluded by higher priority listing mail or facsimile were part of one letter- actions. Kingdom Territory Islands. The petition writing campaign and were is clearly identified as such, and substantively identical. Each letter African Penguin (Spheniscus demersus) contains detailed information on the supported listing under the Act, Background natural history, biology, status, and included a statement identifying ‘‘the The African penguin is known by distribution of each of the 12 species. It threat to penguins from global warming, also contains information on what the industrial fishing, oil spills and other three other common names: Jackass petitioner reported as potential threats factors,’’ and listed the 10 species penguin, cape penguin, and black- to the species from climate change and included in the Service’s 90-day footed penguin. The ancestry of the changes to the marine environment, finding. A further group of 73 letters Spheniscus is estimated at 25 activities, included the same information plus million years ago, following a split contaminants and pollution, information concerning the impact of between Spheniscus and Eudyptula extraction, habitat loss, hunting, ‘‘abnormally warm ocean temperatures from the basal lineage Aptenodytes (the nonnative predator species, and other and diminished sea ice’’ on penguin ‘‘great penguins,’’ emperor and king). factors. The petition also discusses food availability and stated that this has Speciation within Spheniscus is recent, existing regulatory mechanisms and the led to population declines in southern with the two species pairs originating perceived inadequacies to protect these rockhopper, Humboldt, African, and almost contemporaneously in the species. emperor penguins. These letters stated Pacific and Atlantic Oceans in In the Federal Register of July 11, that the emperor penguin colony at approximately the last 4 million years 2007 (72 FR 37695), we published a 90- Point Geologie has declined more than (Baker et al. 2006, p. 15). day finding in which we determined 50 percent due to global warming and African penguins are the only nesting that the petition presented substantial provided information on krill declines penguins found on the African scientific or commercial information to in large areas of the Southern Ocean. continent. Their breeding range is from indicate that listing 10 species of They stated that continued warming Hollamsbird Island, Namibia, to penguins as endangered or threatened over the coming decades will Island, , may be warranted: Emperor penguin, dramatically affect Antarctica, the sub- (Whittington et al. 2000a, p. 8), where southern rockhopper penguin, northern Antarctic islands, the Southern Ocean penguins form colonies (rookeries) for rockhopper penguin, Fiordland crested and the penguins dependent on these breeding and molting. Outside the penguin, erect-crested penguin, ecosystems for survival. A small number breeding season, African penguins macaronis penguin, white-flippered of general letters and e-mails drew occupy areas throughout the breeding penguin, yellow-eyed penguin, African particular attention to the conservation range and farther to the north and east. penguin, and Humboldt penguin. status of the southern rockhopper Vagrants have occurred north to Sette Furthermore, we determined that the penguin in the Falkland Islands. Cama (2 degrees and 32 minutes South petition did not provide substantial Twenty submissions provided (2°32′S)), , on Africa’s west coast scientific or commercial information detailed, substantive information on one and to Inhaca Island (26°58′S) and the indicating that listing the snares crested or more of the 10 species. These Limpopo River mouth (24°45′S), penguin and the royal penguin as included information from the , on the east coast of Africa threatened or endangered species may governments, or government-affiliated (Shelton et al. 1984, p. 219; Hockey et be warranted. scientists, of Argentina, Australia, al. 2005, p. 632). A coastal species, they Following the publication of our 90- Namibia, New Zealand, Peru, South are generally spotted within 7.5 miles day finding on this petition, we initiated Africa, and the United Kingdom, from (mi) (12 kilometers (km)) of the shore. a status review to determine if listing scientists, from 18 members of the U.S. There has been abandonment of each of the 10 species is warranted, and Congress, and from one non- breeding colonies and establishment of opened a 60-day public comment period governmental organization (the original new colonies within the range of the to allow all interested parties an petitioner). species. Within the Western Cape region opportunity to provide information on On December 3, 2007, the Service in southwestern South Africa, for the status of the 10 species of penguins. received a 60-day Notice of Intent to Sue example, penguin numbers at the two The public comment period closed on from the Center for Biological Diversity easternmost colonies (on Dyer and September 10, 2007. In addition, we (CBD). CBD filed a complaint against the Geyser Islands) and three northernmost attended the International Penguin Department of the Interior on February colonies (on Lambert’s Bay and Malgas

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and Marcus Islands) decreased, while east of the in the their environment (Lehodey et al. 2006, the population more than doubled over south to the Front to the north, p. 5011). In the southern Benguela, the 1992–2003 period at five colonies, where the Angola Front separates the intense wind-mixing transport of including the two largest (Dassen and warm water of the Angola current from surface waters creates an unfavorable Robben Islands) (du Toit et al. 2003, p. the cold Benguela water (Fennel 1999, environment for fish to breed. As a 1). The most significant development p. 177). The Benguela ecosystem is an result, both and between 1978 and the 1990s was the important center of marine biodiversity populations have developed a novel establishment of three colonies that did and marine food production, and is one reproductive strategy that is tightly not exist earlier in the 20th century— of the most productive ocean areas in linked to the seasonal dynamics of Stony Point, Boulder’s Beach in False the world, with a mean annual primary major local environmental processes— Bay, and , which now productivity about six times higher than spatial separation between spawning supports the third largest colony for the that of the North Sea ecosystem. The and nursery grounds. For both species, species (du Toit et al. 2003, p. 1; rise of cold, nutrient-rich waters from eggs spawned over the western Agulhas Kemper et al. 2007, p. 326). the ocean depths to the warmer, sunlit Bank (WAB) are transported to the African penguins are colonial zone at the surface in the Benguela productive west coast nursery grounds breeders. They breed mainly on rocky produces rich feeding grounds for a via a coastal jet, which acts like a offshore islands, either nesting in variety of marine and avian species. The ‘‘conveyor belt’’ to transport early life burrows they excavate themselves or in Benguela ecosystem historically stages from the WAB spawning area to depressions under boulders or bushes, supports a globally significant the nursery grounds (Lehodey et al. manmade structures, or large items of of zooplankton, fish, sea , and 2006, p. 5011). jetsam. Historically, they dug nests in marine mammals, including the African The distance that African penguins the layers of sun-hardened guano (bird penguin’s main diet of anchovy have to travel to find food varies both excrement) that existed on most islands. (Engraulius encrasicolus) and Pacific temporally and spatially according to However, in the 19th century, European sardine (Sardinops sagax) (Berruti et al. the season. Off western South Africa, and North American traders exploited 1989, pp. 273–335). the mean foraging range of penguins guano as a source of nitrogen, denuding The principal upwelling center in the that are feeding chicks has been islands of their layers of guano (Hockey Benguela ecosystem is historically recorded to be 5.7 to 12.7 mi (9 to 20 et al. 2005, p. 633; du Toit et al. 2003, situated in southern Namibia, and is the km) (Petersen et al. 2006, p. 14), mostly p. 3). most concentrated and intense found in within 1.9 mi (3 km) of the coast African penguins have an extended any upwelling regime. It is unique in (Berruti et al. 1989, p. 307). Foraging breeding season; colonies are observed that it is bounded at both northern and duration during chick provisioning may to breed year-round on offshore islands southern ends by warm water systems, last anywhere from 8 hours to 3 days, (Brown et al. 1982, p. 77). Broad in the eastern Atlantic and the Indian the average duration being around 10– regional differences do exist, though, Ocean’s Agulhas current, respectively. 13 hours (Petersen et al. 2006, p. 14). and the peak of the breeding season in Sharp horizontal gradients (fronts) exist Travel distance from the breeding Namibia (November and December) at these boundaries with adjacent ocean colony is more limited when feeding tends to be earlier than the peak for systems (Berruti et al. 1989, p. 276). young. Outside the breeding season, South Africa (March to May). Breeding African penguins prey upon small adults generally remain within 248 mi pairs are considered monogamous; fish, as well as and krill. Studies (400 km) of their breeding locality, about 80 to 90 percent of pairs remain conducted between 1953 and 1992 while juveniles regularly move in excess together in consecutive breeding showed that and of 621 mi (1,000 km) from their natal seasons. The same pair will generally contributed 50 to 90 percent by mass of island (Randall 1989, p. 250). return to the same colony, and often the the African penguin’s diet (Crawford et During the non-breeding season, same nest site each year. The male al. 2006, p. 120). Trends in regional African penguins forage on the Agulhas carries out nest site selection, while nest populations of the African penguin have Bank. Underhill et al. (2007, p. 65) building is by both sexes. been shown to be related to long-term suggested that the molt period of Although population statistics vary changes in the abundance and African penguins is closely tied to the from year to year, studies at a number distribution of these two fish species spawning period of sardine and of breeding islands revealed mean (Crawford 1998, p. 355; Crawford et al. anchovy at the . Pre-molt reported adult survival values per year 2006, p. 122). birds travel long distances to the bank of 0.81 (Crawford et al. 2006, p. 121). Most spawning by anchovy and to fatten up during this time of the most African penguins have an average sardine takes place on the Agulhas predictable food supply of the year. This lifespan of 10–11 years in the wild, the Bank, which is to the southeast of reliable food source, and the need to females reaching sexual maturity at the Robben Island, from August to February gain energy prior to molting, is age of 4 years and the males at the age (Hampton 1987, p. 908). Young-of-the- hypothesized to be the most important of 5 years. The highest recorded age in year migrate southward along the west factor dictating the annual cycle of the wild is greater than 27 years coast of South Africa from March until penguins. In fact, adult birds are often (Whittington et al. 2000b, p. 81); September, past Robben Island to join observed to abandon large chicks in however, several individual birds have shoals of mature fish over the Agulhas to move into this critical pre-molt lived to be up to 40 years of age in Bank (Crawford 1980, p. 651). The foraging mode. The South African captivity. southern Benguela upwelling system off National Foundation for the Feeding habitats of the African the west coast of South Africa is Conservation of Coastal Birds penguin are dictated by the unique characterized by strong seasonal (SANCCOB) rescue facility took in over marine ecosystem of the coast of South patterns in prevailing wind direction, 700 orphaned penguin chicks from Dyer Africa and Namibia. The Benguela which result in seasonal changes in Island in 2005–06. Parents abandoned ecosystem, encompassing one of the upwelling intensity. To produce chicks as they began to molt (SANCCOB four major coastal upwelling ecosystems adequate survival of their young, fish 2006, p. 1; SANCCOB 2007a, p. 1). The in the world, is situated along the coast reproductive strategies are generally increasing observation of abandonment of southwestern Africa. It stretches from well-tuned to the seasonal variability of is perhaps related to a slight trend

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toward earlier molting seasons two mainland sites in South Africa protection and heat stress due to the (Underhill et al. 2007, p. 65). (Boulder’s Beach and Stony Point) for loss of this optimal breeding habitat There has been a severe historical which no earlier records of breeding substrate. We have not identified decline in African penguin numbers in exist. There is no breeding along the information on how quickly guano both the South African and Namibian coast of South Africa’s Northern Cape deposits may build up again to depths populations. This decline is accelerating Province, which lies between Namibia which provide suitable burrowing at the present time. The species and Western Cape Province (Ellis et al. substrate, but hypothesize it is a matter declined from millions of birds in the 1998, p. 115). of decades. early 1900s (1.4 million adult birds at In Namibia, low-lying African Dassen Island alone in 1910) (Ellis et al. Summary of Factors Affecting the penguin breeding habitat is being lost 1998, p. 116) to 141,000 pairs in 1956– Species due to flooding from increased coastal 57 to 69,000 pairs in 1979–80 to 57,000 Section 4(a)(1) of the Act (16 U.S.C. rainfall and sea level rise of 0.07 inches pairs in 2004–05, and to about 36,188 1533(a)(1)) and regulations issued to (1.8 millimeters) a year over the past 30 pairs in 2006 (Kemper et al. 2007, p. implement the listing provisions of the years (Roux et al. 2007b, p. 6). Almost 327). Crawford (2007, in litt.) reported Act (50 CFR part 424) establish the 11 percent of the nests on the four major that from 2006–2007, the overall procedures for adding species to the breeding islands (which contain 96 population declined by 12 percent to Federal lists of endangered and percent of the Namibian population) are 31,000 to 32,000 pairs. threatened wildlife and plants. We may experiencing a moderate to high risk of The species is distributed in about 32 determine a species to be an endangered flooding (Roux et al. 2007b, p. 6). colonies in three major clusters. In or threatened species due to one or more Continued increases in coastal flooding South Africa in 2006, there were 11,000 of the five factors described in section from rising sea levels predicted by pairs in the first cluster at the Eastern 4(a)(1) of the Act. These factors and global and regional climate change Cape, and about 21,000 in the second their application to the African penguin models (Bindoff et al. 2007, pp. 409, cluster at the Western Cape colonies, are discussed below. 412) are predicted to increase the with 13,283 of these pairs at Dassen Factor A. The Present or Threatened number and proportion of breeding sites Island and 3,697 at Robben Island. Destruction, Modification, or at risk and lead to continued trends of South African totals were down from Curtailment of African Penguin’s decreased survival and decreased 32,786 pairs in 2006 to 28,000 pairs in Habitat or Range breeding success (Roux et al. 2007b, p. 2007. There were about 3,402 pairs in 6). the third major cluster in Namibia. The The habitat of the African penguin Competition for breeding habitat with Namibian population has declined by consists of terrestrial breeding and Cape fur seals (Arctocephalus pusillus more than 75 percent since the mid-20th molting sites and the marine pusillus) has been cited as a reason for century (from 42,000 pairs in 1956–57) environment, which serves as a foraging abandonment of breeding at five former and has been decreasing 2.5 percent per range both during and outside of the breeding colonies in Namibia and South year between 1990 (when there were breeding season. Africa, and expanding seal herds have 7,000 to 8,000 pairs) and 2005 (Kemper Modification of their terrestrial displaced substantial numbers of et al. 2007, p. 327; Underhill et al. 2007, habitat is a continuing threat to African breeding penguins at other colonies p. 65; Roux et al. 2007a, p. 55). penguins. This began in the mid-1880s (Ellis et al. 1998, p. 120; Crawford et al. The African penguin is listed as with the mining of guano at 1995a, p. 271). ‘Vulnerable’ on the 2007 International islands colonized by the African Changes to the marine habitat present Union for Conservation of Nature penguin and other in both a significant threat to populations of (IUCN) Red List on the basis of steep South Africa and Namibia. Harvesting of African penguins. African penguins population declines (Birdlife the guano cap began in 1845 (du Toit et have a long history of shifting colonies International 2007, p. 1), but given the al. 2003, p. 3; Griffin 2005, p. 16) and and fluctuations in numbers at 56 percent decline observed over 3 continued over decades, denuding the individual colonies in the face of generations, there is discussion in the islands of guano. Deprived of their shifting food supplies (Crawford 1998, most recent revision of the conservation primary nest-building material, the p. 362). These shifts are related to the status of the species of changing that penguins were forced to nest in the dynamics between prey species and to Red List status to ‘Endangered’ if the open, where their eggs and chicks are ecosystem changes, such as reduced or declines continue (Kemper et al. 2007, more vulnerable to predators such as enhanced upwelling (sometimes p. 327). That same assessment, based on kelp gulls (Larus dominicanus) (Griffin associated with El Nin˜ o events), changes 2006 data, concluded that the Namibian 2005, p. 16). Additionally, instead of in sea surface temperature, or movement population should already be regarded being able to burrow into the guano, of system boundaries. In addition to as Red List ‘Endangered’ by IUCN where temperature extremes are such continuing cyclical events, the criteria with the probability of ameliorated, penguins nesting in the marine habitats of the Western Cape and extinction of the African penguin from open are subjected to heat stress Namibian populations of African this northern cluster during the 21st (Shannon and Crawford 1999, p. 119). Penguin are currently experiencing century rated as high (Kemper et al. Adapted for life in cold temperate directional ecosystem changes 2007, p. 327). waters, they have insulating fatty attributable to global climate change; There are about 32 breeding colonies deposits to prevent hypothermia and overall sea surface temperature (Kemper et al. 2007, p. 327). Breeding black-and-white coloring that provides increases have occurred during the no longer occurs at eight localities camouflage from predators at sea. These 1900s and, as detailed above, sea level where it formerly occurred or has been adaptations cause problems of has been rising steadily in the region suspected to occur—Seal, Penguin, overheating while they are on land over the past 30 years (Bindoff et al. North Long, North Reef, and Albatross incubating eggs and brooding chicks 2007, p. 391; Fidel and O’Toole 2007, Islands in Namibia, and Jacobs Reef, during the breeding season. Although pp. 22, 27; Roux et al. 2007a, p. 55). Quoin, and Seal (Mossel Bay) Islands in guano harvesting is now prohibited in At the Western Cape of South Africa, South Africa (Crawford et al. 1995a, p. penguin colonies, many penguins a shift in sardine distribution to an area 269). In the 1980s, breeding started at continue to suffer from the lack of outside the current breeding range of the

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African penguin has led to a decrease of numerous Namibian population of the of sulfide eruptions during different 45 percent between 2004 and 2006 in African penguin. Over the past 3 oceanographic conditions. Hydrogen the number of penguins breeding in the decades, sea surface temperatures have sulfide accumulates in bottom Western Cape and increased adult steadily increased and upwelling sediments and erupts to create hypoxic mortality as the availability of sardine intensity has decreased in the northern (a reduced concentration of dissolved decreased for the major portion of the Benguela region. These long-term oxygen in a water body leading to stress African penguin population located in changes have been linked to declines in and death in aquatic organisms) or even that region (Crawford et al. 2007a, p. 8). penguin recruitment at the four main anoxic conditions over large volumes of From 1997 to the present, the breeding islands from 1993–2004 (Roux the water column (Ludynia et al. 2007, distribution of sardine concentrations et al. 2007a, p. 55). Weakened p. 43; Fidel and O’Toole 2007 p. 9). off South Africa has steadily shifted to upwelling conditions have a particular Penguins, whose foraging range is the south and east, from its long-term impact on post-fledge young penguins restricted by the central place of their location off colonies at Robben Island to during their first year at sea, explaining breeding colony location (Petersen et al. east of Cape Infanta on the southern 65 percent of the variance in 2006, p. 24), are forced to forage in these coast of South Africa east of Cape recruitment during that period (Roux et areas, but their preferred prey of Agulhas, 248 mi (400 km) from the al. 2007b, p. 9). These naı¨ve birds are sardines and anchovies is unable to former center of abundance (Crawford et particularly impacted by increasingly survive in these conditions. African al. 2007a, p. 1). scarce or hard-to-find prey. Even after penguins foraging in areas of sulfide This shift is having severe heavy fishing pressure has been eased in eruptions expend greater amounts of consequences for penguin populations. this region in the 1990s, sardine stocks energy in pursuit of available food, Off western South Africa, the foraging in Namibia have failed to recover, primarily the pelagic goby (Sufflogobius range of penguins that are feeding causing economic shifts for humans and bibarbatus), which has lower energy chicks is estimated to be 5.7 to 12.7 mi foraging difficulties for penguins. This content than their preferred prey. These (9 to 20 km) (Petersen et al. 2006, p. 14), failure to recover has been attributed to sulphide eruptions, like the El Nin˜ o and while foraging they generally stay the continuing warming trend and to anomalies, are predicted to increase within 1.9 mi (3 km) of the coast increased horse (Trachurus with continuing climate change (Bakun (Berruti et al. 1989, p. 307). The trachurus) stocks, which have replaced and Weeks 2004, pp. 1021–1022; southeastern most Western Cape sardines and anchovies (Benguela Ludynia et al. 2007, p. 43). The Colonies occur at Dyer Island, which is Current Large Marine Ecosystem Namibian population of African southeast of and about 47 (BCLME) 2007, pp. 2–3). penguins, restricted in their breeding mi (75 km) northwest of Cape Agulhas. El Nin˜ o events also impact the locations, will continue to be negatively Therefore, the current sardine Benguela marine ecosystem on a impacted by this ongoing regime shift concentrations are out of the foraging decadal frequency. These occur when away from sardines and anchovies to range of breeding adults at the Western warm seawater from the equator moves pelagic goby and jellyfish. Cape breeding colonies (Crawford et al. along the southwest coast of Africa We have identified a number of 2007a, p. 8), which between 2004 and towards the pole and penetrates the cold threats to the coastal and marine habitat 2006 made up between 79 and 68 up-welled Benguela current. During the of the African penguin which have percent of the rapidly declining South 1995 event, for example, the entire coast operated in the past, are impacting the African population (Crawford et al. from Angola’s Cabinda province to species now and will continue to impact 2007a, p. 7). central Namibia was covered by the species in the immediate coming Further, as described in Crawford abnormally warm water—in places up years and into the future. On the basis (1998, p. 360), penguin abundances at to 46 degrees Fahrenheit (°F) (8 degrees of this analysis, we find that the present these Western Cape colonies have Celsius (°C)) above average—to a and threatened destruction, historically shifted north and south distance up to 186 mi (300 km) offshore modification, or curtailment of both its according to sardine and anchovy (Science in Africa 2004, p. 2). During terrestrial and marine habitats is a threat abundance and accessibility from the last two documented events there to the African penguin throughout all of breeding colonies, but the current prey have been mass mortalities of penguin its range. shift is to a new center of abundance prey species, prey species recruitment Factor B. Overutilization for outside the historic breeding range of failures, and mass mortalities of Commercial, Recreational, Scientific, or this penguin species. While one new predator populations, including Educational Purposes colony has appeared east of existing starvation of over half of the seal Western Cape colonies, more population. The penguin data sets are The current use of African penguins significantly, there has been a 45 not adequate to estimate the effects of for commercial, recreational, scientific, percent decrease in breeding pairs in the Benguela El Nin˜ o events at present, but or educational purposes is generally Western Cape Province and a significant based on previous observations of low. Prior estimates of commercial decrease in annual survival rate for impact on the entire food web of the collection of eggs for food from Dassen adult penguins from 0.82 to 0.68 northern Benguela, they are most likely Island alone were 500,000 in 1925, and (Crawford et al. 2007a, p. 8). to be negative (Roux et al. 2007b, p. 12). more than 700,000 were collected from Exacerbating the problem of shifting With increasing temperatures associated a number of localities in 1897 (Shelton prey, the authors reported that the with climate change in the northern et al. 1984, p. 256). Since 1968, fishing industry, which is tied to local Benguela ecosystem, the frequency and however, commercial collection of processing capacity in the Western intensity of Benguela El Nin˜ o events penguin eggs for food has ceased. Cape, is competing with the penguins and their concomitant effects on the There are unconfirmed reports of for the fish that remain in the west, habitat of the African penguin are penguins being killed as use for bait in rather than following the larger sardine predicted to increase in the immediate rock-lobster traps. Apparently they are concentrations to the east (Crawford et upcoming years as new El Nin˜ o events attractive as bait because their flesh and al. 2007a, pp. 9–10). emerge (Roux et al. 2007b, p. 5). skin is relatively tough compared to that Changes in the northern Benguela A third factor in the marine habitat of of fish and other baits. The extent of this ecosystem are also affecting the less the Namibian populations is the extent practice is unknown, and most reports

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emanate from the Namibian islands Factor D. Inadequacy of Existing protection of the marine environment (Ellis et al. 1998, p. 121). Use for non- Regulatory Mechanisms (the internal waters, territorial waters, lethal, scientific purposes is highly Under South Africa’s Biodiversity Act and exclusive economic zone) from regulated and does not pose a threat to of 2004, the African penguin is pollution by oil and other harmful populations (See analysis under Factor classified as a protected species, defined substances, and is focused on D). as an indigenous species of ‘‘high preventing pollution and determining liability for loss or damage caused by On the basis of this analysis, we find conservation value or national the discharge of oil from ships, tankers, that overutilization for commercial, importance’’ that requires national and offshore installations. The SAMPA recreational, scientific, or educational protection (Republic of South Africa 2004, p. 52; Republic of South Africa prohibits the discharge of oil into the purposes is not a threat to the African marine environment, sets requirements penguin in any portion of its range now 2007, p. 10). Activities which may be carried out with respect to such species for reporting discharge or likely or in the foreseeable future. discharge and damage, and designates are restricted and cannot be undertaken the South African Maritime Safety Factor C. Disease or Predation without a permit (Republic of South Authority the powers of authority to Africa 2004, p. 50). Restricted activities African penguins are hosts to a variety take steps to prevent pollution in the include among other things, hunting, of parasites and diseases (Ellis 1998, pp. case of actual or likely discharge and to capturing, or killing living specimens of 119–120), but we find that disease is not remove pollution should it occur, listed species by any means, collecting including powers of authority to direct a threat to the African penguin in any specimens of such species (including ship masters and owners in such portion of its range. The primary the themselves, eggs, or situations. The SAMPA also contains concern is preventing the transmission derivatives or products of such species), liability provisions related to the costs of disease from the large numbers of importing, exporting or re-exporting, African penguins rehabilitated after of any measures taken by the authority having such specimens within one’s to reduce damage resulting from oiling to wild populations (Graczyk et physical control, or selling or otherwise al. 1995, p. 706). discharge (Marine Pollution (Control trading in such specimens (Republic of and Civil Liability) Act of 1981 2000, Predation by Cape fur seals of South Africa 2004, p. 18). pp. 1–22). protected avian species has become an The species is classified as South Africa is a signatory to the 1992 issue of concern to marine and coastal ‘endangered’ in Nature and International Convention on Civil managers in the Benguela ecosystem as Environmental Conservation Ordinance, Liability for Oil Pollution Damages and these protected seals have rebounded to No. 19 of the Province of the Cape of its Associate Fund Convention become abundant (1.5 to 2 million Good Hope (Western Cape Nature (International Fund for Welfare animals) (David et al. 2003, pp. 289– Conservation Laws Amendment Act (IFAW) 2005, p. 1), and southern South 292). The seals are killing substantial 2000, p. 88), providing protection from African waters have been designated as numbers of seabirds, including African hunting or possessing this species a Special Area by the International penguins and threatening the survival of without a permit. According to Ellis et Maritime Organization, providing individual colonies. At Dyer Island, 842 al. (1998, p. 115), this status applies to measures to protect wildlife and the penguins in a colony of 9,690 the Northern Cape, Western Cape, and marine environment in an ecologically individuals were killed in 1995–96 Eastern Cape Provinces as well. Kemper important region used intensively by (Marks et al. 1997, p. 11). At Lambert’s et al. (2007, p. 326) reported that shipping (International Convention for Bay, seals kill 4 percent of adult African African penguin colonies in South the Prevention of Pollution from Ships penguins annually (Crawford et al. Africa are all protected under (MARPOL) 2006, p. 1). One of the 2006, p. 124). In one instance, South authorities ranging from local, to prohibitions in such areas is on oil Africa’s Marine and Coastal provincial, to national park status. tankers washing their cargo tanks. Management Department within the While Ellis et al. (1998, p. 115) reported Despite these existing regulatory Department of Environmental Affairs that in Namibia there is no official legal mechanisms, the African penguin and Tourism instigated culling of the fur status for African penguins, Kemper et continues to decline due to the effects seals where they threatened the Cape al. (2007, p. 326) reported in a more of habitat destruction, predation, (Morus capensis) (David et al. recent review that all Namibian fisheries competition, and oil pollution. breeding colonies are under some 2003, p. 290), but we are not aware of We find that these regulatory and protection, from restricted access to a similar program related to reducing conservation measures have been national park status. While we have no the ongoing threat of predation by Cape insufficient to significantly reduce or information that allows us to evaluate fur seals on African penguins. remove the threats to the African their overall effectiveness, these Abandoned eggs and chicks are often penguin and, therefore, that the national, regional, and local measures to lost to predators such as the inadequacy of existing regulatory prohibit activities involving African and other species. Additionally, without mechanisms is a threat to this species penguins without permits issued by protection of burrows, penguin eggs and throughout all of its range. government authorities and to control or chicks are more vulnerable to predators restrict access to African penguin Factor E. Other Natural or Manmade (Griffin 2005, p. 16). colonies are appropriate to protecting Factors Affecting the Continued On the basis of this information, we African penguins from land-based Existence of the Species find that predation, in particular by threats, such as harvest of penguins or Over the period from 1930 to the Cape Fur Seals that prey on significant their eggs, disturbance from tourism present, fisheries harvest by man and numbers of African penguins at their activities, and impacts from more recently fisheries competition breeding colonies, is a threat to the unregulated, scientific research with increasingly abundant seal African penguin throughout all of its activities. populations have hindered the African range, and we have no reason to believe The South African Marine Pollution penguin’s historical ability to rebound the threat will be ameliorated in the (Control and Civil Liability) Act (No. 6 from oceanographic changes and prey foreseeable future. of 1981) (SAMPA) provides for the regime shifts. The reduced carrying

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capacity of the Benguela ecosystem, significant relationships obtained both islands. South Africa launched a presents a significant threat to survival between breeding success of African concerted effort to collect and clean of African penguins (Crawford et al. penguins and estimates of the biomass oiled birds, to move non-oiled birds 2007b, p. 574). of their fish prey confirm that away from the region, to collect penguin Crawford (1998, pp. 355–364) reproduction is influenced by the chicks for artificial rearing, and to clean described the historical response of abundance of food (Adams et al. 1992, up oiled areas. Nineteen thousand African penguins to regime shifts p. 969; Crawford et al. 1999, p. 143). African penguins were oiled and between their two primary prey species, The levels of breeding success recorded brought for cleaning to the SANCCOB sardines and anchovies, both in terms of in the most recent studies of the African facility. An additional 19,500 penguins numbers and colony distribution from penguin were found to be inadequate to were relocated to prevent them from the 1950s through the 1990s. There was sustain the African penguin population being oiled. A total of 38,500 birds were a repeated pattern of individual colony (Crawford et al. 2006, p. 119). handled in the context of this major oil collapse in some areas and, as the new In addition to guano collection, as spill. The last oil was removed from food source became dominant, new described in Factor A, disturbance of Treasure on July 18, 2000. Two months colony establishment and population breeding colonies may arise from other after the spill, mortality of African increase in other areas. Crawford (1998, human activities such as angling and penguins from the spill stood at 2,000 p. 362) hypothesized that African swimming, tourism, and mining (Ellis et adults and immature birds and 4,350 penguins have coped successfully with al. 1998, p. 121). Such disturbances can chicks (Crawford et al. 2000, p. 9). The many previous sardine-anchovy shifts. cause the penguins to panic and desert Avian Demography Unit (ADU) of the Specific mechanisms, such as the their nesting sites. Exploitation and has emigration of first-time breeders from disturbance by humans is probably the undertaken long-term monitoring of natal colonies to areas of greater forage reason for penguins ceasing to breed at penguins released after spill incidents. abundance may have historically helped four colonies, one of which has since Response in the Treasure spill and them successfully adapt to changing been re-colonized (Crawford et al. success in rehabilitation have shown prey location and abundance. However, 1995b, p. 112). Burrows can be that response efforts have improved over the period from the 1930s to the accidentally destroyed by humans dramatically. The next most serious 1990s, competition for food from walking near breeding sites, leading to spill of the Apollo Sea, which occurred increased commercial fish harvest and penguin mortality. in June 1994, released about 2,401 T from burgeoning fish take by recovering Oil and chemical spills can have (2,177 t) of fuel oil near Dassen Island. populations of the Cape appears direct effects on the African penguin. About 10,000 penguins were to have overwhelmed the ability of Based on previous incidents and despite contaminated with only 50 percent of African penguins to compete; the take of national and international measures to these birds successfully de-oiled and fish and cephalopods by man and seals prevent and respond to oil spills put back in the wild. Over the 10 years increased by 2 million tons (T) (1.8 referenced in Factor D, we consider this after this spill, the ADU followed million tonnes (t)) per year from the to be a significant threat to the species. banded released birds to monitor their 1930s to the 1980s (Crawford 1998, p. African penguins live along the major survival and reproductive histories 362). Crawford et al. (2007b, p. 574) global transport route for oil and have (Wolfaardt et al. 2007, p. 68). They conclude that due to the increased been frequently impacted by both major found that success in restoring oiled competition with purse-seine (net) and minor oil spills. Since 1948, there birds to the point that they attempt to fisheries and burgeoning fur seal have been 13 major oil spill events in breed after release has steadily populations, the carrying capacity of the South Africa, each of which oiled from improved. The breeding success of Benguela ecosystem for African 500 to 19,000 African penguins. Nine of restored birds and the growth rates of penguins has declined by 80 to 90 these involved tanker collisions or their chicks, however, are lower than for percent from the 1920s to the present groundings, three involved oil of non-oiled birds. Nevertheless, because day. In the face of increased competition unknown origins, and one involved an adults could be returned successfully to and reduced prey resources, African oil supply pipeline bursting in Cape the breeding population, they penguin populations are no longer Town harbor (Underhill 2001, pp. 2–3). concluded that de-oiling and rebounding successfully from In addition to these major events, which reintroduction of adults are effective underlying prey shifts, and they have are described in detail below, there is a conservation interventions (Wolfaardt et experienced sharply decreased significant number of smaller spill al. 2007, p. 68). reproductive success. events, impacting smaller number of Therefore, we find that immediate These negative effects of decreased birds. These smaller incidental spills and ongoing competition for food prey availability on reproductive result in about 1,000 oiled penguins resources with fisheries and other success and on population size have being brought to SANCCOB, which has species, overall decreases in food been documented. Breeding success of facilities to clean oiled birds, over the abundance, and ongoing severe direct African penguins was measured at course of each year (Adams 1994, pp. and indirect threat of oil pollution are Robbin Island from 1989–2004 37–38; Underhill 2001, p. 1). Overall, threats to the African penguin (Crawford et al. 2006, p. 119) in concert from 1968 to the present, SANCCOB throughout all of its range. with hydro-acoustic surveys to estimate (2007b, p. 2), has handled more than the spawner biomass of anchovy and 83,000 oiled sea birds, with the primary Foreseeable Future sardine off South Africa. When the focus on African penguins. The term ‘‘threatened species’’ means combined spawner biomass of fish prey The most recent and most serious any species (or subspecies or, for was less than 2 million T (1.8 million event, the Treasure spill, occurred on vertebrates, distinct population t), pairs of African penguins fledged an June 23, 2000, when the iron ore carrier segments) that is likely to become an average of only 0.46 chicks annually. Treasure sank between Robben and endangered species within the When it was above 2 million T (1.8 Dassen Islands, where the largest and foreseeable future throughout all or a million t), annual breeding success had third-largest colonies of African penguin significant portion of its range. The Act a mean value of 0.73 chicks per pair occur (Crawford et al. 2000, pp. 1–4). does not define the term ‘‘foreseeable (Crawford et al. 2006, p. 119). The Large quantities of oil came ashore at future.’’ For the purpose of this

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proposed rule, we defined the impacting the species at this time. islands have experienced flooding from ‘‘foreseeable future’’ to be the extent to Historical threats to terrestrial habitat, increased rainfall and rising sea-levels, which, given the amount and substance such as destruction of nesting areas for threatening 10 percent of the nests in of available data, we can anticipate guano collection and the threat of direct the four major breeding colonies, further events or effects, or reliably extrapolate harvest, have been overtaken by long- stressing a species under severe threat trends, such that we reasonably term competition for prey from human immediate threat from factors in the believe that reliable predictions can be fisheries beginning in the 1930s. This marine environment. made concerning the future as it relates competition is now exacerbated by the Finally, the marine and coastal habitat to the status of the species at issue. increased role of burgeoning Cape fur of the African penguin lies on one of the In considering the foreseeable future seal populations throughout the range in world’s busiest sea lanes. Despite as it relates to the status of the African competing with commercial fisheries for improvements in oil spill response penguin, we considered the threats the prey of the African penguin capability and global recognition of the acting on the species, as well as (Crawford 1998, p. 362). In combination, importance of protecting these waters population trends. We considered the competition with fisheries and fur seals from the impacts of oil, catastrophic and historical data to identify any relevant have reduced the carrying capacity of chronic spills have been and continue to existing trends that might allow for the marine environment for African be the norm. The most recent reliable prediction of the future (in the penguins to 10 to 20 percent of its 1920s catastrophic spill in 2000 in South form of extrapolating the trends). We value and by themselves represent Africa resulted in the oiling of 19,000 also considered whether we could significant immediate threats to the penguins and the translocation of reliably predict any future events (not African penguin throughout all of its 19,500 more birds in direct danger from yet acting on the species and therefore range. the spill. With the global population at not yet manifested in a trend) that might Changes in the different portions of a historical low (between 31,000 and affect the status of the species. the range of the African penguin are 32,000 pairs), future oil spills, which The African penguin is in serious adding additional stressors to the consistent experience shows may occur decline throughout its range, and this overall declines in the prey of African at any time, pose a significant and decline is accelerating at the present penguins. In Namibia, the fisheries immediate threat to the species time in all three population clusters. We declines in the marine environment are throughout all of its range. have identified a number of threats to being exacerbated by long-term declines We have carefully assessed the best the coastal and marine habitat of the in upwelling intensities and increased scientific and commercial information African penguin, and we predict that sea surface temperatures. These changes available regarding the threats faced by these threats are reasonably likely to have hampered the recovery of sardine this species. The African penguin is in continue to result in African penguin and anchovy populations in the region serious decline throughout all of its population declines in the foreseeable even as fishing pressure on those range, and the decline is currently future. We have found that predation by species has been relaxed, forcing accelerating. This decline is due to Cape Fur Seals is a threat to the African penguins to shift to a less nutritious threats of a high magnitude—(1) The penguin throughout all of its range, and prey, the pelagic goby. The changes immediate impacts of a reduced we have no reason to believe the threat have also forced a regime shift in the carrying capacity for the African will be ameliorated within the Benguela ecosystem to other fish penguin throughout its range due to foreseeable future. We have found that species, which are not the prey of fisheries declines and competition for regulatory and conservation measures African penguins. The phenomenon of food with Cape fur seals (severely have been insufficient to significantly sulfide eruption has further hampered exacerbated by rapid ongoing ecosystem reduce or remove the threats to the the recovery of the food base. changes in the marine environment at African penguin, and we do not expect In the Western Cape, in addition to the northern end of the penguin’s this to change in the foreseeable future. the severe fisheries declines and severe distribution and by major shifts of prey Finally, we have found that competition reduction of the carrying capacity of the resources to outside of the accessible for food resources with fisheries and marine environment, the primary food foraging range of breeding penguins at other species, decreases in food source of African penguins has, the southern end of distribution); (2) the abundance, and severe direct and beginning in 1997, shifted consistently continued threats to African penguins indirect threats of oil pollution are eastward to areas east of the on land throughout their range from threats to the African penguin, and southernmost tip of South Africa. Over habitat modification and destruction based on the information available, we the past decade, the primary food base and predation; and (3) the immediate have no reason to believe that these for the most populous African penguin and ongoing threat of oil spills and oil threats will lessen in the foreseeable colonies in South Africa has shifted pollution to the African penguin. The future. outside the accessible foraging range for severity of these threats to the African those colonies. This shift has led to penguin within its breeding and African Penguin Finding declines in penguin recruitment and foraging range puts the species in The African penguin is in serious significant decreases in adult survival danger of extinction. Therefore, we find decline throughout its range. This and represents an additional significant that the African penguin is in danger of decline is accelerating at the present immediate threat to the West Cape extinction throughout all of its range. time in all three population clusters, populations of the African penguin. with a one-year decrease of 12 percent On land, the effects of guano removal Available Conservation Measures from 2006–2007 to between 31,000 to from penguin breeding islands continue Conservation measures provided to 32,000 breeding pairs, and an overall 3- to be felt in lack of predator protection species listed as endangered or year decline of 45 percent from 2004– and heat stress in breeding birds. threatened under the Act include 2007. These verified, accelerating, and Predation on penguins by kelp gulls and recognition, requirements for Federal immediate declines, across all areas recovering Cape fur seals has become a protection, and prohibitions against inhabited by African penguin predominant threat factor. In Namibia, certain practices. Recognition through populations are directly attributable to where African penguin numbers are listing results in public awareness, and ongoing threats that are severely lowest, with only 3,402 pairs, low-lying encourages and results in conservation

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actions by Federal governments, private Peer Review of the Act. We published a notice agencies and groups, and individuals. In accordance with our joint policy outlining our reasons for this Section 7(a) of the Act, as amended, with National Marine Fisheries Service, determination in the Federal Register and as implemented by regulations at 50 ‘‘Notice of Interagency Cooperative on October 25, 1983 (48 FR 49244). CFR part 402, requires Federal agencies Policy for Peer Review in Endangered Clarity of the Rule to evaluate their actions within the Species Act Activities,’’ published in We are required by Executive Orders United States or on the high seas with the Federal Register on July 1, 1994 (59 12866 and 12988, and by the respect to any species that is proposed FR 34270), we will seek the expert Presidential Memorandum of June 1, or listed as endangered or threatened, opinions of at least three appropriate 1998, to write all rules in plain and with respect to its critical habitat, independent specialists regarding this language. This means that each rule we if any is being designated. However, proposed rule. The purpose of peer publish must: given that the African penguin is not review is to ensure that our proposed native to the United States, no critical (a) Be logically organized; rule is based on scientifically sound (b) Use the active voice to address habitat is being proposed for data, assumptions, and analyses. We designation in this rule. readers directly; will send copies of this proposed rule to (c) Use clear language rather than Section 8(a) of the Act authorizes the peer reviewers immediately jargon; limited financial assistance for the following publication in the Federal (d) Be divided into short sections and development and management of Register. We will invite these peer sentences; and programs that the Secretary of the reviewers to comment during the public (e) Use lists and tables wherever Interior determines to be necessary or comment period, on our specific possible. useful for the conservation of assumptions and conclusions regarding If you feel that we have not met these endangered and threatened species in the proposal to list the African penguin requirements, send us comments by one foreign countries. Sections 8(b) and 8(c) as endangered. of the methods listed in the ADDRESSES of the Act authorize the Secretary to We will consider all comments and section. To better help us revise the encourage conservation programs for information we receive during the rule, your comments should be as foreign endangered species and to comment period on this proposed rule specific as possible. For example, you provide assistance for such programs in during our preparation of a final should tell us the numbers of the the form of personnel and the training determination. Accordingly, our final sections or paragraphs that are unclearly of personnel. decision may differ from this proposal. written, which sections or sentences are The Act and its implementing Public Hearings too long, the sections where you feel regulations set forth a series of general lists or tables would be useful, etc. prohibitions and exceptions that apply The Act provides for one or more to all endangered and threatened public hearings on this proposal, if we References Cited wildlife. As such, these prohibitions receive any requests for hearings. We A complete list of all references cited would be applicable to the African must receive your request for a public in this proposed rule is available on the penguin. These prohibitions, under 50 hearing within 45 days after the date of Internet at http://www.regulations.gov CFR 17.21, make it illegal for any person this Federal Register publication (see or upon request from the Division of subject to the jurisdiction of the United DATES). Such requests must be made in Scientific Authority, U.S. Fish and States to ‘‘take’’ (take includes harass, writing and be addressed to the Chief of Wildlife Service (see FOR FURTHER harm, pursue, hunt, shoot, wound, kill, the Division of Scientific Authority at INFORMATION CONTACT). trap, capture, collect, or to attempt any the address shown in the FOR FURTHER Author of these) within the United States or INFORMATION CONTACT section. We will upon the high seas, import or export, schedule public hearings on this The authors of this proposed rule are deliver, receive, carry, transport, or ship proposal, if any are requested, and staff of the Division of Scientific in interstate or foreign commerce in the announce the dates, times, and places of Authority, U.S. Fish and Wildlife course of a commercial activity, or to those hearings, as well as how to obtain Service (see FOR FURTHER INFORMATION sell or offer for sale in interstate or reasonable accommodations, in the CONTACT). foreign commerce, any endangered Federal Register at least 15 days before List of Subjects in 50 CFR Part 17 wildlife species. It also is illegal to the first hearing. Endangered and threatened species, possess, sell, deliver, carry, transport, or Required Determinations ship any such wildlife that has been Exports, Imports, Reporting and taken in violation of the Act. Certain Regulatory Planning and Review recordkeeping requirements, exceptions apply to agents of the (Executive Order 12866) Transportation. Service and State conservation agencies. The Office of Management and Budget Proposed Regulation Promulgation We may issue permits to carry out has determined that this rule is not Accordingly, we propose to amend otherwise prohibited activities significant under Executive Order part 17, subchapter B of chapter I, title involving endangered and threatened 12866. 50 of the Code of Federal Regulations, wildlife species under certain as set forth below: circumstances. Regulations governing National Environmental Policy Act permits are codified at 50 CFR 17.22 for (NEPA) PART 17—[AMENDED] endangered species, and at 17.32 for We have determined that threatened species. With regard to environmental assessments and 1. The authority citation for part 17 endangered wildlife, a permit must be environmental impact statements, as continues to read as follows: issued for the following purposes: for defined under the authority of the Authority: 16 U.S.C. 1361–1407; 16 U.S.C. scientific purposes, to enhance the National Environmental Policy Act of 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– propagation or survival of the species, 1969 (42 U.S.C. 4321 et seq.), need not 625, 100 Stat. 3500; unless otherwise noted. and for incidental take in connection be prepared in connection with 2. Amend § 17.11(h) by adding a new with otherwise lawful activities. regulations adopted under section 4(a) entry for ‘‘Penguin, African,’’ in

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alphabetical order under ‘‘BIRDS’’ to the § 17.11 Endangered and threatened (h) * * * List of Endangered and Threatened wildlife. Wildlife to read as follows: * * * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* BIRDS

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

*******

* * * * * 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] BILLING CODE 4310–55–P

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