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Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59645

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) Modified

Unnamed Tributary No. 1 to At the area bounded by U.S. Route 33, Wabash Avenue, +1415 Unincorporated Areas of Fink Run (Backwater effects and County Route 33/1. Upshur County. from Buckhannon River).

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES Unincorporated Areas of Upshur County Maps are available for inspection at the Upshur County Courthouse Annex, 38 West Main Street, Buckhannon, WV 26201.

(Catalog of Federal Domestic Assistance No. 76.913(b)(1)—62 FR 6495, February 12, collection requirements that are subject 97.022, ‘‘Flood Insurance.’’) 1997. to OMB approval. Dated: September 21, 2010. 76.924(e)(1)(iii) and (e)(2)(iii)—61 FR [FR Doc. 2010–24203 Filed 9–27–10; 8:45 am] Edward L. Connor, 9367, March 8, 1996. BILLING CODE 6712–01–P Acting Federal Insurance and Mitigation 76.925—60 FR 52119, October 5, 1995. Administrator, Department of Homeland 76.942(f)—60 FR 52120, October 5, Security, Federal Emergency Management 1995. DEPARTMENT OF THE INTERIOR Agency. 76.944(c)—60 FR 52121, October 5, [FR Doc. 2010–24326 Filed 9–27–10; 8:45 am] 1995. Fish and Wildlife Service BILLING CODE 9110–12–P 76.957—60 FR 52121, October 5, 1995. 76.1504(e)—61 FR 43176, August 26, 50 CFR Part 17 1996. FEDERAL COMMUNICATIONS [Docket No. FWS–R9–IA–2008–0068; 92210– 76.1511—61 FR 43177, August 21, 1996. 0–0010–B6] COMMISSION 76.1512—61 FR 43177, August 21, 1996. RIN 1018–AV60 47 CFR Parts 73 and 76 76.1514—61 FR 43176, August 21, 1996. FOR FURTHER INFORMATION CONTACT: Endangered and Threatened Wildlife Radio Broadcast Services and Shirley Suggs, (202) 418–1568, Media and Plants; Determination of Multichannel Video and Cable Bureau. Endangered Status for the African Television Service; Clarification Regarding Information Collection SUPPLEMENTARY INFORMATION: The Requirements Commission published several AGENCY: Fish and Wildlife Service, documents in the Federal Register Interior. AGENCY: Federal Communications identifying rules that required OMB ACTION: Final rule. Commission. approval. After further review, we have ACTION: Final rule; clarification. found OMB approval is not required. SUMMARY: We, the U.S. Fish and The affected CFR sections are as Wildlife Service, determine endangered SUMMARY: The Federal Communications follows: Commission has published a number of status for the African penguin requirements related to Radio Broadcast Marlene H. Dortch, (Spheniscus demersus) under the Services and Multichannel Video and Secretary, Federal Communications Endangered Act of 1973, as Cable Television Service, which were Commission. amended. This final rule implements the Federal protections provided by the determined to contain information ■ For the reasons stated in the preamble, Act for this species. collection requirements that were and under the authority at 47 U.S.C. subject to OMB review. After further 154, 303, 334, 336 and 339; 47 U.S.C. DATES: This rule becomes effective review, we have found OMB approval is 151, 152, 153, 154, 301, 302, 302a, 303, October 29, 2010. not required. This document intends to 303a, 307, 308, 309, 312, 315, 317, 325, ADDRESSES: This final rule is available provide clarification that these rules are 339, 340, 341, 503, 521, 522, 531, 532, on the Internet at http:// effective and that it has been 534, 535, 536, 537, 543, 544, 544a, 545, www.regulations.gov and comments and determined that these provisions are not 548, 549, 552, 554, 556, 558, 560, 561, materials received, as well as supporting subject to OMB review. 571, 572, and 573 * * *, the Federal documentation used in the preparation DATES: Effective September 28, 2010, the Communications Commission has of this rule, will be available for public following regulations are no longer determined that the regulations at inspection, by appointment, during pending OMB approval for the sections §§ 73.6027, 76.5(ll), 76.913(b)(1), normal business hours at: U.S. Fish and listed: 76.924(e)(1)(iii) and (e)(2)(iii), 76.925, Wildlife Service, 4401 N. Fairfax Drive, 73.6027—69 FR 69331, November 29, 76.942(f), 76.944(c), 76.957, 76.1504(e), Suite 400, Arlington, VA 22203. 2004. 76.1511, 76.1512, and 76.1514 are FOR FURTHER INFORMATION CONTACT: 76.5(ll)—61 FR 6137, February 16, 1996. effective and do not contain information Janine Van Norman, Chief, Branch of

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Foreign Species, we attended the International Penguin new information regarding the proposed Program, U.S. Fish and Wildlife Service, Conference in Hobart, Tasmania, listing of this species, and we address 4401 North Fairfax Drive, Room 420, Australia, a quadrennial meeting of those comments below. Overall, the Arlington, VA 22203; telephone 703– penguin scientists from September 3–7, commenters and peer reviewers 358–2171; facsimile 703–358–1735. If 2007, to gather information and to supported the proposed listing. Four you use a telecommunications device ensure that experts were aware of the comments from the public included for the deaf (TDD), call the Federal status review. We also consulted with additional information for Information Relay Service (FIRS) at other agencies and range countries in an consideration; all other comments 800–877–8339. effort to gather the best available simply supported the proposed listing SUPPLEMENTARY INFORMATION: scientific and commercial information without providing scientific or on these species. commercial data. Background On December 3, 2007, the Service The Endangered Species Act of 1973, received a 60-day Notice of Intent to Sue Peer Review as amended (Act) (16 U.S.C. 1531 et from CBD. On February 27, 2008, CBD In accordance with our policy seq.) is a law that was passed to prevent filed a complaint against the published on July 1, 1994 (59 FR extinction of species by providing Department of the Interior for failure to 34270), we solicited expert opinions measures to help alleviate the loss of make a 12-month finding (status from four individuals with scientific species and their habitats. Before a plant determination) on the petition. On expertise that included familiarity with or species can receive the September 8, 2008, the Service entered the species, the geographic region in protection provided by the Act, it must into a settlement agreement with CBD, which the species occurs, and first be added to the Federal Lists of in which we agreed to submit to the conservation biology principles. We Threatened and Endangered Wildlife Federal Register 12-month findings for received responses from two of the peer and Plants; section 4 of the Act and its the 10 species of , including reviewers from whom we requested implementing regulations at 50 CFR part the African penguin, on or before comments. They generally agreed that 424 set forth the procedures for adding December 19, 2008. the description of the biology and species to these lists. On December 18, 2008, the Service habitat for the species was accurate and published in the Federal Register a Previous Federal Action based on the best available information. warranted 12-month finding and rule New or additional information on the On November 29, 2006, the U.S. Fish proposing to list the African penguin as biology and habitat of the African and Wildlife Service (Service) received an endangered species under the Act (73 penguin and threats was provided and a petition from the Center for Biological FR 77332). We implemented the incorporated into the rulemaking as Diversity (CBD) to list 12 penguin Service’s peer review process and appropriate. In some cases, it has been species under the Act: opened a 60-day comment period to indicated in the citations by ‘‘personal ( forsteri), southern solicit scientific and commercial communication’’ (pers. comm.), which rockhopper penguin (Eudyptes information on the species from all could indicate either an e-mail or chrysocome), northern rockhopper interested parties following publication penguin (Eudyptes moseleyi), Fiordland telephone conversation; while in other of the proposed rule. cases, the research citation is provided. (Eudyptes On March 9, 2010, CBD filed a pachyrhynchus), snares crested penguin complaint against the Service for failure Peer Reviewer Comments (Eudyptes robustus), erect-crested to issue a final listing determination for (1) Comment: One peer reviewer penguin (Eudyptes sclateri), macaroni seven penguin species, including found the proposed rule to be thorough, penguin (Eudyptes chrysolophus), royal African penguin, within 12 months of covered the main threats to the African penguin (Eudyptes schlegeli), white- the proposals to list the species. In a penguin, and used the best information flippered penguin ( minor court-approved settlement agreement, to accurately describe the biology, albosignata), yellow-eyed penguin the Service agreed to submit a final habitat, population trends, and ( antipodes), African listing determination for the African distribution of the species. This peer penguin (Spheniscus demersus), and penguin to the Federal Register by reviewer also provided a few technical (Spheniscus September 30, 2010. humboldti). On July 11, 2007, we corrections. published in the Federal Register a 90- Summary of Comments and Our Response: We thank the peer day finding (72 FR 37695) in which we Recommendations reviewer for providing comments on the determined that the petition presented We base this finding on a review of proposed rule. Most of the technical substantial scientific or commercial the best scientific and commercial corrections that were provided were information indicating that listing 10 of information available, including all minor and did not significantly change the penguin species as endangered or information received during the public the information already provided in the threatened may be warranted, but comment period. In the December 18, proposed rule, but rather provided more determined that the petition did not 2008, proposed rule, we requested that accuracy or clarity. Technical and provide substantial scientific or all interested parties submit information grammatical corrections have been commercial information indicating that that might contribute to development of incorporated into this final rule and listing the snares crested penguin and a final rule. We also contacted have been indicated in the citation as a the as threatened or appropriate scientific experts and personal communication. endangered species may be warranted. organizations and invited them to (2) Comment: One peer reviewer Following the publication of our 90- comment on the proposed listings. We noted that relevant key literature was day finding on this petition, we initiated received 604 comments: 602 from not cited and provided a list of 18 a status review to determine if listing members of the public and 2 from peer additional references for review and each of the 10 species was warranted, reviewers. requested that we incorporate the new and sought information from the public We reviewed all comments we data and information into this final rule and interested parties on the status of received from the public and peer and consider it in making our listing the 10 species of penguins. In addition, reviewers for substantive issues and determination.

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Our Response: We reviewed all 18 cholera has had a minimal effect on although limited, information. None of references and have incorporated African penguins. During an outbreak in the information, however, changed our relevant information and additional 1991 on eight islands off western South determination that listing this species as citations into this final rule. , mortality was recorded for small endangered is warranted. (3) Comment: One peer reviewer numbers of African penguins on Dassen Species Information stated that it would be incorrect to say and Dyer islands (Crawford et al. 1992, that half the population of seals starved p. 237). From 2002 to 2006, there were The African penguin is known by during the last two documented El Nin˜ o annual outbreaks of avian cholera on three other common names: jackass events, although it was doubtless many Dyer Island. A characteristic of the penguin, cape penguin, and black- did. avian cholera outbreaks was significant footed penguin. The ancestry of the Our Response: This information came mortality in the Cape Spheniscus is estimated at 25 from an online science magazine, (Phalacrocorax capensis) with little million years, following a split between Science in Africa (2004, p. 2), which impact on other species (Waller and Spheniscus and Eudyptula from the stated that during the last two Underhill 2007, p. 109). During the basal lineage Aptenodytes (the ‘‘great documented events, the seal population 2004–2005 outbreak, which was the penguins,’’ emperor and king). was almost halved after many adult largest outbreak, only one African Speciation within Spheniscus is recent, seals succumbed to starvation, and the penguin death was recorded (Waller and with the two species pairs originating entire cohort of pups either died or Underhill 2007, p. 107). However, almost contemporaneously in the aborted. The peer reviewer did not human presence during the avian Pacific and Atlantic Oceans in include any citations on the impact the cholera outbreaks may disturb African approximately the last 4 million years El Nin˜ o events had on the seal penguins causing them to abandon (Baker et al. 2006, p. 15). population, therefore, we did not revise nests, leaving eggs and chicks African penguins are the only nesting this portion of the rule. vulnerable to predation (Waller and penguins found on the African (4) Comment: One peer reviewer Underhill 2007, p. 109). We have added continent. Their breeding range is from provided additional information on more information regarding the effects Hollamsbird Island, , to factors contributing to the failure of of human presence during avian cholera Island, , stocks to recover; including outbreaks to Factor E. Other Natural or (Whittington et al. 2000, p. 8), where environmental anomalies and Manmade Factors Affecting the penguins form colonies (rookeries) for overfishing. In addition, the peer Continued Existence of the Species. breeding and molting. Outside the reviewer stated that, although horse breeding season, African penguins (Trachurus trachurus) may Public Comments occupy areas throughout the breeding have benefitted from the decline in (6) Comment: Several commenters range and farther to the north and east. sardine stocks, its increase in provided supporting data and Vagrants have occurred north to Sette abundance does not appear to be information regarding the biology, Cama (2 degrees and 32 minutes South detrimental to the sardine and should ecology, life history, population (2°32′ S)), , on Africa’s west coast not be regarded as ‘‘replacing’’ sardine, estimates, threat factors affecting this and to Inhaca Island (26°58′ S) and the as we indicated in the proposed rule. penguin species, and current Limpopo River mouth (24°45′ S), Our Response: We have added conservation efforts. , on the east coast of Africa additional information regarding the Our Response: We thank all the (Shelton et al. 1984, p. 219; Hockey et effects of overfishing and environmental commenters for their interest in the al. 2005, p. 632). As a coastal species, anomalies in the Benguela system on conservation of this species and thank they are generally spotted within 7.5 sardine stocks to Factor A. The Present those commenters who provided miles (mi) (12 kilometers (km)) of the or Threatened Destruction, information for our consideration in shore. Modification, or Curtailment of African making this listing determination. Most There has been abandonment of Penguin’s Habitat or Range below. information submitted was duplicative breeding colonies and establishment of Although horse mackerel stocks have of the information contained in the new colonies within the range of the increased, it is likely due to the decrease proposed rule; however, some species. Within the Western Cape region in sardine stocks caused by high fishing comments contained information which in southwestern South Africa, for pressure. were able to take provided additional clarity or support example, penguin numbers at the two advantage of this decrease in a to, but did not substantially change, the easternmost colonies (on Dyer and competitor for zooplankton and information already contained in the Geyser Islands) and three northernmost increased while sardine stocks proposed rule. This information has colonies (on Lambert’s Bay and Malgas stabilized at a lower abundance. been incorporated into our finding. and Marcus Islands) decreased, while Therefore, it is competition with the the population more than doubled over Summary of Changes From Proposed increased horse-mackerel stocks for the 1992–2003 period at five other Rule zooplanton, rather than actual colonies, including the two largest replacement, that is a concern for the We fully considered comments from colonies at Dassen and Robben Islands sardine as a vital food source for the the public and peer reviewers on the (du Toit et al. 2003, p. 1). The most African penguin. We have revised our proposed rule to develop this final significant development between 1978 statement that horse mackerel has listing of the African penguin. This final and the 1990s was the establishment of replaced . rule incorporates changes to our three colonies that did not exist earlier (5) Comment: One peer reviewer proposed listing based on the comments in the 20th century—Stony Point, stated that avian cholera (Pasteurella that we received that are discussed Boulder’s Beach in False Bay, and multocida) has been reported to affect above and newly available scientific and , which now supports the African penguins and could have commercial information. Reviewers third largest colony for the species (du catastrophic consequences for the generally commented that the proposed Toit et al. 2003, p. 1; Kemper et al. species. rule was very thorough and 2007c, p. 326). Our Response: After reviewing comprehensive. We made some Although African penguins are pertinent literature, we found that avian technical corrections based on new, generally colonial breeders, many also

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breed solitarily or in small, loose groups 252). The male carries out nest site became the dominate prey of (Kemper 2009, pers. comm.; Kemper et selection, while nest building is by both African penguins following the collapse al. 2007a, p. 89). They breed mainly on sexes. Penguins lay a two-egg clutch of the sardine stock in the 1960s rocky offshore islands, either nesting in (Kemper 2009, unpaginated; Randall (Kemper 2009, pers. comm.; Randall burrows they excavate themselves or 1989, p. 247). 1989, p. 251). Studies conducted under boulders or bushes, manmade Although population statistics vary between 1953 and 1992 showed that structures, or large items of jetsam from year to year, studies at a number and sardines contributed 50 (Kemper et al. 2007a, p. 89), sometimes of breeding islands revealed mean to 90 percent by mass of the African in depressions under these structures reported adult survival values per year penguin’s diet (Crawford et al. 2006, p. (Crawford 2009, pers. comm.). of 0.81 (Crawford et al. 2006, p. 121). 120) and 83 to 85 percent by number of Historically, they dug nests in the layers African penguins have an average prey items in studies conducted of sun-hardened (bird excrement) lifespan of 10–11 years in the wild. The between 1977 and 1985 (Crawford et al. that existed on most islands. However, highest recorded age in the wild is 2006, p. 120). In Namibia, pilchard in the 19th century, European and North greater than 27 years (Whittington et al. (Sardinops ocellata) were the dominate American traders exploited guano as a 2000, p. 81); however, several prey species of African penguins until source of nitrogen, denuding islands of individual have lived to be up to the collapse of the sardine stock in the their layers of guano (Hockey et al. 40 years of age in captivity. late 1960s to early 1970s (Kemper et al. 2005, p. 633; du Toit et al. 2003, p. 3). Feeding habitats of the African 2001, p. 432; Crawford et al. 1985, pp. Large-scale removal of guano from the penguin are dictated by the unique 225–226). Following the collapse, Namibian islands has resulted in a marine ecosystem of the coast of South pilchard were replaced as dominate majority of the penguins having to now Africa and Namibia. The Benguela prey by pelagic goby (Sufflogobius breed on the surface (Kemper 2009, ecosystem, encompassing one of the bibarbatus) at Mercury and Ichaboe pers. comm.; Kemper et al. 2007b, p. four major coastal upwelling ecosystems islands and by cephalopods at Halifax 101; Kemper et al. 2007a, p. 89; in the world, is situated along the coast and Possession islands (Kemper 2009, Shannon and Crawford 1999, pg. 119). of southwestern Africa. It stretches from pers. comm.; Ludynia 2007, pp. 27–28; African penguins have an extended east of the in the Kemper et al. 2001, p. 432; Crawford et breeding season; colonies are observed south to the Front to the north, al. 1985, pp. 225–226). Trends in to breed year-round on offshore islands where the Angola Front separates the regional populations of the African (Brown et al. 1982, p. 77). Broad warm water of the Angola current from penguin have been shown to be related regional differences do exist, though. the cold Benguela water (Fennel 1999, to long-term changes in the abundance The peak of the breeding season in p. 177). The Benguela ecosystem is an and distribution of these sardines and Namibia generally occurs between important center of marine biodiversity anchovies (Crawford 1998, p. 355; and marine food production, and is one October and February, with a secondary Crawford et al. 2006, p. 122). peak between June and October of the most productive ocean areas in (Kemper 2009, unpaginated), but the world, with a mean annual primary Most spawning by anchovy and variations occur between locations: On productivity about six times higher than sardine takes place on the Agulhas , peaks occur between that of the North Sea ecosystem. The Bank, which is to the southeast of October and January; on , rise of cold, nutrient-rich waters from Robben Island, from August to February peaks occur between October and the ocean depths to the warmer, sunlit (Hampton 1987, p. 908). Young-of-the- December; on Halifax Island, breeding zone at the surface in the Benguela year migrate southward along the west peaks between July and August and produces rich feeding grounds for a coast of South Africa from March until early December; and on Possession variety of marine and avian species. The September, past Robben Island to join Island, breeding peaks between Benguela ecosystem historically shoals of mature fish over the Agulhas November and January (Kemper et al. supports a globally significant Bank (Crawford 1980, p. 651). The 2007a, pp. 89 and 91). In South Africa, of zooplankton, fish, sea birds, and southern Benguela upwelling system off breeding peaks differ from those in marine mammals, including the African the west coast of South Africa is Namibia: Peak breeding on Dassen and penguin’s main diet of anchovy characterized by strong seasonal Robben islands occurs between April (Engraulis encrasicolus) and Pacific patterns in prevailing wind direction, and August; on Malgas and Marcus sardine (Sardinops sagax) (Berruti et al. which result in seasonal changes in islands and Stony Point, peak breeding 1989, pp. 273–335). upwelling intensity. To produce occurs between February and August; The principal upwelling center in the adequate survival of their young, fish and on St. Croix Island, peak breeding Benguela ecosystem is situated in reproductive strategies are generally occurs during January with secondary southern Namibia, and is the most well-tuned to the seasonal variability of peaks in March through June (Kemper et concentrated and intense found in any their environment (Lehodey et al. 2006, al. 2007a, p. 95). upwelling regime. It is unique in that it p. 5011). In the southern Benguela, The timing of breeding is thought to is bounded at both northern and intense wind-mixing transport of coincide with availability of local food southern ends by warm water systems, surface waters creates an unfavorable sources (Kemper 2009, unpaginated; in the eastern Atlantic and the Indian environment for fish to breed. As a Kemper et al. 2007a, p. 95; Randall Ocean’s Agulhas current, respectively. result, both anchovy and sardine 1989, p. 247). Breeding pairs are Sharp horizontal gradients (fronts) exist populations have developed a novel considered monogamous; about 80 to 90 at these boundaries with adjacent ocean reproductive strategy that is tightly percent of pairs remain together in systems (Berruti et al. 1989, p. 276). linked to the seasonal dynamics of consecutive breeding seasons. The same African penguins, in general, feed on major local environmental processes— pair will generally return to the same small fish, cephalopods, and to a lesser spatial separation between spawning colony, and often the same nest site extent, (Crawford 2007, p. 229; and nursery grounds. For both species, each year. The average age at first Ludynia 2007, p. 27; Crawford et al. eggs spawned over the western Agulhas breeding is between 3 and 6 years old 2006, p. 120; Petersen et al. 2006, pp. Bank (WAB) are transported to the (Kemper et al. 2008, p. 810; Whittington 14, 18; Randall 1989, p. 251; Crawford productive west coast nursery grounds et al. 2005, p. 227; Randall 1989, p. et al. 1985, p. 215). In South Africa, via a coastal jet, which acts like a

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‘‘conveyor belt’’ to transport early life Africa is perhaps related to a slight decline, most likely due to commercial stages from the WAB spawning area to trend toward earlier molting seasons fisheries and shifts in prey populations, the nursery grounds (Lehodey et al. (Underhill et al. 2007, p. 65). with no signs of reversing (BirldLife 2006, p. 5011). There has been a severe historical International 2010, unpaginated). The distance that African penguins decline in African penguin numbers in Breeding no longer occurs at seven have to travel to find food varies both both the South African and Namibian localities where it formerly occurred or temporally and spatially according to populations. This decline is accelerating has been suspected to occur—Seal, the season. Off western South Africa, at the present time. The species North Long, North Reef, and Albatross the mean foraging range of penguins declined from millions of birds in the Islands in Namibia, and Jacobs Reef, that are feeding chicks has been early 1900s (1.4 million adult birds at Quoin, and Seal (Mossel Bay) Islands in recorded to be 5.7 to 12.7 mi (9 to 20 Dassen Island alone in 1910) (Ellis et al. South Africa (Kemper 2009, pers. km) (Petersen et al. 2006, p. 14), mostly 1998, p. 116) to 141,000 pairs in 1956– comm.; Kemper et al. 2007c, p. 326; within 1.9 mi (3 km) off the coast 1957 to 69,000 pairs in 1979–1980 to Crawford et al. 1995a, p. 269). In the (Berruti et al. 1989, p. 307). Foraging 57,000 pairs in 2004–2005, and to about 1980s, breeding started at two mainland duration during chick provisioning may 36,188 pairs in 2006 (Kemper et al. sites in South Africa (Boulder’s Beach last anywhere from 8 hours to 3 days, 2007c, pp. 327). Crawford (2007, in litt.) and Stony Point) for which no earlier the average duration being around 10– reported that from 2006–2007, the records of breeding exist. There is no 13 hours (Petersen et al. 2006, p. 14). A overall population declined by 12 breeding along the coast of South recent study revealed greater foraging percent to 31,000 to 32,000 pairs. The Africa’s Northern Cape Province, which ranges between 8.8 and 19.8 mi (14 and 2009 global population was estimated at lies between Namibia and Western Cape 32 km) for African penguins on Mercury 25,262 pairs; equating to a decline of Province (Ellis et al. 1998, p. 115). Island and an average trip duration of 13 60.5 percent over 28 years (three Summary of Factors Affecting the hours (Ludynia 2007, pp. 17–18). generations) (BirdLife International Species Ludynia (2007, pp. 28, 30) also reported 2010, unpaginated). foraging ranges between 3.9 and 7.1 mi The species is distributed in about 32 Section 4 of the Act (16 U.S.C. 1533) (6 and 11 km) for three African colonies in three major clusters. In and its implementing regulations at 50 penguins on Possession Island and South Africa in 2006, there were 11,000 CFR 424 set forth the procedures for foraging ranges between 3.3 and 8.2 mi pairs in the first cluster at the Eastern adding species to the Federal Lists of (5 and 13 km) for two African penguins Cape, and about 21,000 in the second Endangered and Threatened Wildlife on Halifax Island; trip duration ranges cluster at the Western Cape colonies, and Plants. A species may be between 8–27.5 hours and 3.5–12 hours, with 13,283 of these pairs at Dassen determined to be an endangered or respectively. Travel distance from the Island and 3,697 at Robben Island. threatened species due to one or more breeding colony is more limited when South African totals were down from of the five factors described in section feeding young. Outside the breeding 32,786 pairs in 2006 to 28,000 pairs in 4(a)(1) of the Act. The five factors are: season, adults generally remain within 2007. There were about 3,402 pairs in (A) The present or threatened 248 mi (400 km) of their breeding the third major cluster in Namibia. The destruction, modification, or locality, while juveniles regularly move Namibian population has declined by curtailment of its habitat or range; (B) in excess of 621 mi (1,000 km) from more than 75 percent since the mid-20th overutilization for commercial, their natal island (Randall 1989, p. 250). century (from 42,000 pairs in 1956–57) recreational, scientific, or educational During the non-breeding season, some and has been decreasing 2.5 percent per purposes; (C) disease or predation; (D) African penguins forage on the Agulhas year between 1990 (when there were the inadequacy of existing regulatory Bank (Crawford 2009, pers. comm.). 7,000 to 8,000 pairs) and 2005 (Kemper mechanisms; and (E) other natural or Underhill et al. (2007, p. 65) et al. 2007c, p. 327; Underhill et al. manmade factors affecting its continued suggested that the molt period of 2007, p. 65; Roux et al. 2007a, p. 55). existence. These factors and their African penguins is closely tied to the On the 2007 International Union for application to the African penguin are spawning period of sardine and Conservation of Nature (IUCN) Red List, discussed below. anchovy at the . Pre-molt the African penguin was listed as birds travel long distances to the bank ‘‘Vulnerable’’ on the basis of steep Factor A. The Present or Threatened to fatten up during this time of the most population declines (Birdlife Destruction, Modification, or predictable food supply of the year. This International 2007, p. 1). Given the Curtailment of African Penguin’s reliable food source, and the need to decline observed over 3 generations, a Habitat or Range gain energy prior to molting, is 2007 revision of the The habitat of the African penguin hypothesized to be the most important of the species discussed changing that consists of terrestrial breeding and factor dictating the annual cycle of Red List status to ‘‘Endangered’’ if the molting sites and the marine penguins. In fact, adult birds have been declines continued (Kemper et al. environment, which serves as a foraging observed to abandon large chicks in 2007c, p. 327). That same assessment, range both during and outside of the to move into this critical pre-molt based on 2006 data, concluded that the breeding season. foraging mode; this is known to occur Namibian population should already be Modification of their terrestrial regularly and often at a large scale at regarded as Red List ‘‘Endangered’’ by habitat is a continuing threat to African Dyer Island (Kemper 2009, pers. IUCN criteria with the probability of penguins. This began in the mid-1880s comm.). The South African National extinction of the African penguin from with the mining of guano at Foundation for the Conservation of this northern cluster during the 21st islands colonized by the African Coastal Birds (SANCCOB) rescue facility century rated as high (Kemper et al. penguin and other in both took in over 700 orphaned penguin 2007c, p. 327). In June of 2010, the South Africa and Namibia. Harvesting of chicks from Dyer Island in 2005–2006. African penguin was uplisted from the guano cap began in 1845 (du Toit et Parents abandoned chicks as they began ‘‘Vulnerable’’ to ‘‘Endangered’’ on the al. 2003, p. 3; Griffin 2005, p. 16) and to molt (SANCCOB 2006, p. 1; 2010 IUCN Red List. The change in continued over decades, denuding the SANCCOB 2007a, p. 1). The increasing status was based on recent data islands of guano. Deprived of their observation of abandonment in South revealing a continuing rapid population primary nest-building material, the

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penguins were forced to nest on the cover had better overall breeding African penguin population located in surface in the open, where their eggs success than exposed nests. that region (Crawford et al. 2007a, p. 8). and chicks are more vulnerable to In Namibia, low-lying African From 1997 to the present, the predators such as kelp gulls (Larus penguin breeding habitat is being lost distribution of sardine concentrations dominicanus), disturbance, heat stress, due to flooding from increased coastal off South Africa has steadily shifted to and flooding (Kemper et al. 2007b, p. rainfall and sea level rise of 0.07 inches the south and east, from its long-term 101; Griffin 2005, p. 16; Shannon and (1.8 millimeters) a year over the past 30 location off colonies at Robben Island to Crawford 1999, p. 119). years (Roux et al. 2007b, east of Cape Infanta on the southern Without cover provided by burrows p. 6). Almost 11 percent of the nests on coast of South Africa east of Cape excavated in the guano, birds are more the four major breeding islands (which Agulhas, 248 mi (400 km) from the likely to flee from aerial predators or contain 96 percent of the Namibian former center of abundance (Crawford et disturbance caused by humans, leaving population) are experiencing a moderate al. 2007a, p. 1). the nests exposed (Kemper et al. 2007b, to high risk of flooding (Roux et al. This shift is having severe p. 104). Additionally, instead of being 2007b, p. 6). Continued increases in consequences for penguin populations. able to burrow into the guano, where coastal flooding from rising sea levels Off western South Africa, the foraging temperature extremes are ameliorated, predicted by global and regional climate range of penguins that are feeding penguins nesting in the open are change models (Bindoff et al. 2007, p. chicks is estimated to be 5.7 to 12.7 mi subjected to heat stress (Kemper et al. 409, 412) are predicted to increase the (9 to 20 km) (Petersen et al. 2006, p. 14), 2007b, p. 101; Shannon and Crawford number and proportion of breeding sites and while foraging they generally stay 1999, p. 119). Kemper et al. (2007b, p. at risk and lead to continued trends of within 1.9 mi (3 km) of the coast 101) noted an event in which the air decreased survival and decreased (Berruti et al. 1989, p. 307). The temperature rose to 98.6 degrees breeding success (Roux et al. 2007b, southeasternmost Western Cape Fahrenheit (°F) (37 degrees Celsius (°C)), p. 6). Colonies occur at Dyer Island, which is resulting in the death of 68 chicks Competition for breeding habitat with southeast of and about 47 constituting 37 percent of the surface- Cape fur seals (Arctocephalus pusillus mi (75 km) northwest of Cape Agulhas. nesting chicks. Adapted for life in cold pusillus) has been cited as a reason for Therefore, the current sardine temperate waters, penguins have abandonment of breeding at five former concentrations are out of the foraging insulating fatty deposits to prevent breeding colonies in Namibia and South range of breeding adults at the Western hypothermia and black-and-white Africa, and expanding seal herds have Cape breeding colonies (Crawford et al. coloring that provides camouflage from displaced substantial numbers of 2007a, p. 8), which between 2004 and predators at sea. These adaptations breeding penguins at other colonies 2006 made up between 79 and 68 cause problems of overheating while (Ellis et al. 1998, p. 120; Crawford et al. percent of the rapidly declining South they are on land incubating eggs and 1995a, p. 271). African population (Crawford et al. brooding chicks during the breeding Changes to the marine habitat present 2007a, p. 7). season. Furthermore, rainstorms are a significant threat to populations of Further, as described in Crawford uncommon, however, they can be severe African penguins. African penguins (1998, p. 360), penguin abundances at and flooding of nests may occur have a long history of shifting colonies these Western Cape colonies have (Kemper et al. 2007b, p. 101). and fluctuations in numbers at historically shifted north and south Although guano harvesting is now individual colonies in the face of according to sardine and anchovy prohibited in penguin colonies, it shifting food supplies (Crawford 1998, abundance and accessibility from continues sporadically at Ichaboe Island p. 362). These shifts are related to the breeding colonies, but the current prey (Kemper 2009, unpaginated), and many dynamics between prey species and to shift is to a new center of abundance penguins continue to suffer from the ecosystem changes, such as reduced or outside the historic breeding range of lack of protection and heat stress due to enhanced upwelling (sometimes this penguin species. Although one new the loss of this optimal breeding habitat associated with El Nin˜ o events), changes colony has appeared east of existing substrate. We have not identified in sea surface temperature, or movement Western Cape colonies, more information on how quickly guano of system boundaries. In addition to significantly, there has been a deposits may build up again to depths such continuing cyclical events, the significant decrease in annual survival which provide suitable burrowing marine habitats of the Western Cape and rate for adult penguins from 0.82 to 0.72 substrate; however, since guano Namibian populations of African (Crawford et al. 2008, p. 181) in scraping ceased, the accumulation of penguins are currently experiencing addition to the 45 percent decrease in penguin guano has been minimal directional ecosystem changes breeding pairs in the Western Cape because the population is small (Waller attributable to global climate change; Province. Exacerbating the problem of and Underhill 2007, p. 109), and the overall sea surface temperature shifting prey, the authors reported that more the population decreases, the increases occurred during the 1900s the fishing industry, which is tied to slower the guano will build (Kemper and, as detailed above, sea level has local processing capacity in the Western 2009, pers. comm.). Because penguins been rising steadily in the region over Cape, is competing with the penguins are now forced to nest on the surface the past 30 years (Bindoff et al. 2007, p. for the fish that remain in the west, and natural features available for cover 391; Fidel and O’Toole 2007, p. 22, 27; rather than following the larger sardine (e.g., bushes and rock overhangs) are Roux et al. 2007a, p. 55). concentrations to the east (See Factor E) limited, penguins may also use At the Western Cape of South Africa, (Crawford et al. 2007a, pp. 9–10). abandoned buildings for protection. a shift in sardine distribution to an area Changes in the northern Benguela However, these sites provide poor outside the current breeding range of the ecosystem are also affecting the less lighting and damp conditions often with African penguin led to a 45 percent numerous Namibian population of the flea and tick infestations, and chicks decrease, between 2004 and 2006, in the African penguin. Over the past 3 appear in poor condition at these number of penguins breeding in the decades, sea surface temperatures have locations (Kemper et al. 2007b, p. 105). Western Cape and increased adult steadily increased and upwelling Kemper et al. (2007b, p. 104) noted that, mortality as the availability of sardine intensity has decreased in the northern excluding nests in buildings, nests with decreased for the major portion of the Benguela region. These long-term

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changes have been linked to declines in With increasing temperatures associated impact the species in the immediate penguin recruitment at the four main with climate change in the northern coming years and into the future. On the breeding islands from 1993–2004 (Roux Benguela ecosystem, the frequency and basis of this analysis, we find that the et al. 2007a, p. 55). Weakened intensity of Benguela Nin˜ o events and present and threatened destruction, upwelling conditions have a particular their concomitant effects on the habitat modification, or curtailment of both its impact on post-fledge young penguins of the African penguin are predicted to terrestrial and marine habitats is a threat during their first year at sea, explaining increase in the immediate upcoming to the African penguin. years as new Benguela Nin˜ o events 65 percent of the variance in Factor B. Overutilization for recruitment during that period (Roux et emerge (Roux et al. 2007b, p. 5). A third factor in the marine habitat of Commercial, Recreational, Scientific, or al. 2007b, p. 9). These young penguins Educational Purposes are particularly impacted by the Namibian populations is the extent increasingly scarce or hard-to-find prey. of sulfide eruptions during different The current use of African penguins Even after heavy fishing pressure was oceanographic conditions. Hydrogen for commercial, recreational, scientific, eased in this region in the 1990s, sulfide accumulates in bottom or educational purposes is generally sardine stocks in Namibia have failed to sediments and erupts to create hypoxic low. Prior estimates of commercial recover, causing economic shifts for (a reduced concentration of dissolved collection of eggs for food from Dassen humans and foraging difficulties for oxygen in a water body leading to stress Island alone were 500,000 in 1925, and penguins. Remaining sardine stocks in and death in aquatic organisms) or even more than 700,000 were collected from Namibia have contracted to the north anoxic (lacking oxygen) conditions over a number of localities in 1897 (Shelton out of reach of breeding penguins tied large volumes of the water column et al. 1984, p. 256). Since 1968, to the vicinity of their breeding (Ludynia et al. 2007, p. 43; Fidel and however, commercial collection of locations (Kemper 2009, pers. comm.; O’Toole 2007 p. 9). Penguins, whose penguin eggs for food has ceased. There are unconfirmed reports of Kemper et al. 2001, p. 432). This failure foraging range is restricted by the penguins being killed as use for bait in to recover has been attributed to oxygen- central place of their breeding colony rock-lobster traps. Apparently, they are poor conditions (Sakko 1998, p. 428); El location (Petersen et al. 2006, p. 24), are attractive as bait because their flesh and Nin˜ os, which have resulted in failed forced to forage in these areas, but their skin is relatively tough compared to that recruitment of sardines and mass preferred prey of sardines and of fish and other baits. The extent of this mortality of sardines and other pelagic anchovies is unable to survive in these practice is unknown, and most reports fish (Kemper 2009, pers. comm.; Roux et conditions. African penguins foraging in emanate from the Namibian islands al. 2007b p. 12; Sakko 1998, p. 428); areas of sulfide eruptions expend greater amounts of energy through benthic (Ellis et al. 1998, p. 121). Use for years of poor recruitment exacerbated nonlethal, scientific purposes is highly by continued fishing pressure (Kemper dives in pursuit of available food tolerant of low-oxygen conditions, regulated and does not pose a threat to 2009, pers. comm.; Boyer et al. 2001, populations (See analysis under Factor pp. 67, 81–83); competition with horse primarily the pelagic goby (Sufflogobius bibarbatus), which has lower energy D). mackerel (Trachurus trachurus) In 1975, the African penguin was (Kemper 2009, pers. comm.; Shannon et content than the penguins’ preferred prey of anchovies and sardines (Ludynia listed on Appendix II of the Convention al. 2000, p. 721); and the continuing on International Trade in Endangered warming trend (Benguela Current Large 2007, pp. 45–58; Crawford et al. 1985, p. 224). The Namibian population of Species of Wild Fauna and Flora Marine Ecosystem (BCLME) 2007, pp. African penguins, restricted in their (CITES). CITES is an international 2–3). breeding locations, will continue to be agreement between governments to El Nin˜ o events also impact the negatively impacted by this ongoing ensure that the international trade of Benguela marine ecosystem on a regime shift away from sardines and CITES-listed plant and animal species decadal frequency (Benguela Nin˜ o). anchovies to pelagic goby and jellyfish. does not threaten species’ survival in These occur when warm seawater from Like Benguela Nin˜ os events, these the wild. There are currently 175 CITES the equator moves along the southwest sulphide eruptions are predicted to Parties (member countries or signatories coast of Africa towards the pole and increase with continuing climate change to the Convention). Under this treaty, penetrates the cold up-welled Benguela (Ludynia et al. 2007, p. 43); eruptions CITES Parties regulate the import, current. During the 1995 event, for appear to be coincident with increased export, and reexport of CITES-protected example, the entire coast from Angola’s intensity of wind-driven coastal plants and animal species (also see Cabinda province to central Namibia upwelling and low-pressure weather Factor D). Trade must be authorized was covered by abnormally warm cells (e.g., sudden warming of sea through a system of permits and water—in places up to 14.4 °F (8 °C) surface and interruption of coastal certificates that are provided by the above average—to a distance up to 186 upwelling), both of which can be designated CITES Scientific and mi (300 km) offshore (Science in Africa affected by climate change (Weeks et al. Management Authorities of each CITES 2004, p. 2). During the last two 2004, p. 153). Furthermore, these Party (CITES 2010a, unpaginated). documented events, there have been sulphide eruptions could potentially Between the time the African penguin mass mortalities of penguin prey contribute to climate change through was listed in CITES in 1975 and 2008, species, prey species recruitment additional emissions of methane gas 299 CITES-permitted shipments have failures, and mass mortalities of into the atmosphere; however, further been reported to the United Nations predator populations, including studies are needed to determine the Environment Programme-World starvation of over half of the seal extent of the effects on climate change Conservation Monitoring Center population. The penguin data sets are (Bakun and Weeks 2004, pp. 1,021– (UNEP–WCMC). Of these shipments, 80 not adequate to estimate the effects of 1,022). (27 percent) were reportedly imported Benguela Nin˜ o events at present, but We have identified a number of into the United States and 25 (8 percent) based on previous observations of threats to the coastal and marine habitat were shipments permitted for export impact on the entire food web of the of the African penguin that have from the United States (UNEP–WCMC northern Benguela, they are most likely operated in the past, are impacting the 2010, unpaginated). With the to be negative (Roux et al. 2007b, p. 12). species now, and will continue to information given in the UNEP–WCMC

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database, between 1975 and 1993, penguins. Although does (Mercury, Ichaboe, and Possession approximately 30 shipments (275 not normally occur in wild populations, islands) in Namibia (Kemper 2009, pers. individuals) of live African penguins of there is a high prevalence of the disease comm.); however, it should be noted unknown origin were traded. Between in birds held in captivity. The absence that 40 percent of the Namibia seal 1994 and 2003, approximately 7 of avian malaria in wild penguins can population has shifted north of its shipments (42 individuals) of live, wild be explained by factors such as age- breeding range away from penguin African penguins were traded for the related immunity to malarias, mosquito- breeding locations and main foraging following purposes: scientific, personal, impeding feathers, and escape from areas (Kemper 2009, pers. comm.; biomedical, commercial, zoological mosquitoes into the water (Graczyk et Kemper et al. 2007c, p. 339). display, and reintroduction or al. 1995, p. 704). Those penguins held Predation on eggs and small chicks of introduction into the wild. There has in captivity are subject to more intense African penguins by kelp gulls is a been no trade in live, wild African exposure to malarial parasites, but also, concern brought on through human penguins reported since 2003. The other most of the birds in captivity are being disturbance. As described under Factor 262 shipments involved trade in live rehabilitated from exposure to oil A, the historic harvesting of guano pre-Convention (20 specimens) or pollution, which can immobilize deprived African penguins of their captive-born/captive-bred penguins (952 penguins and impair the feather barrier primary nest-building material, forcing specimens) and trade in parts and and make the bird more vulnerable to them to nest on the surface in the open products (2,738 scientific specimens, 39 mosquito attacks (Graczyk et al. 1995, where birds are more likely to flee from bodies, 121 feathers, 16 skeletons, 6 pp. 705–706). Release of infected aerial predators and human disturbance skins, 8 skulls, and 4 personal sport- rehabilitated birds could pose a hazard (see Factor E), leaving their eggs and hunted trophies). to wild penguins once they are released chicks more vulnerable to predators As a species listed in Appendix II of (Graczyk et al. 1995, p. 703). However, such as kelp gulls (Kemper et al. 2007b, CITES, commercial trade is allowed. we could not find any information on pp. 101, 104; Griffin 2005, p. 16; However, CITES requires that before an the large-scale effect of avian malaria on Shannon and Crawford 1999, p. 119). export can occur, a determination must African penguin populations. The On the basis of this information, we be made that the specimens were legally primary concern is preventing the find that predation, in particular by obtained (in accordance with national transmission of disease from the large Cape Fur Seals that prey on significant laws) and that the export will not be numbers of African penguins numbers of African penguins at their detrimental to the survival of the rehabilitated after oiling to wild breeding colonies, is a threat to the species in the wild. Based on the low populations (Graczyk et al. 1995, African penguin, and we have no reason numbers of live, wild African penguins p. 706). to believe the threat will be ameliorated in trade since 1994 and that the trade in in the foreseeable future. parts and products from wild specimens Predation by Cape fur seals of protected avian species has become an Factor D. Inadequacy of Existing is primarily scientific samples, we Regulatory Mechanisms believe that international trade issue of concern to marine and coastal controlled via valid CITES permits is managers in the Benguela ecosystem as The African penguin is listed on not a threat to the species. these protected seals have rebounded to Appendix II of CITES. CITES, an On the basis of this analysis, we find become abundant (1.5 to 2 million international treaty among 175 nations, that overutilization for commercial, ) (David et al. 2003, pp. 289– including Namibia, South Africa, recreational, scientific, or educational 292). Not all seals feed on penguins, Congo, Gabon, Mozambique, and the purposes is not a threat to the African usually just subadult male individuals United States, entered into force in penguin now or in the foreseeable (Kemper 2009, pers. comm.; Mecenero 1975. In the United States, CITES is future. et al. 2005, p. 510; du Toit et al. 2004, implemented through the U.S. pp. 45, 50). Although only a few Endangered Species Act. The Secretary Factor C. Disease or Predation individuals may be responsible for of the Interior has delegated the African penguins are hosts to a variety predation on African penguins, they can Department’s responsibility for CITES to of parasites and diseases (Ellis 1998, pp. have a detrimental effect on small the Director of the Service and 119–120), including avian cholera colonies (Mecenero et al. 2005, pp. 509, established the CITES Scientific and (Pasteurella multocida) and avian 511). At Dyer Island, 842 penguins in a Management Authorities to implement malaria (Plasmodium relictum). During colony of 9,690 individuals (8.7 percent) the treaty. an outbreak of avian cholera in 1991 on were killed in 1995–1996 (Marks et al. CITES provides varying degrees of eight islands off western South Africa, 1997, p. 11). At Lambert’s Bay, seals kill protection to more than 32,000 species mortality was recorded for small 4 percent of adult African penguins of animals and plants that are traded as numbers of African penguin on Dassen annually (Crawford et al. 2006, p. 124; whole specimens, parts, or products. and Dyer islands (Crawford et al. 1992, Crawford et al. 2001, p. 440). The Under this treaty, member countries p. 237). From 2002 to 2006, there were practice of removing problem work together to ensure that annual outbreaks of avian cholera on individuals has been advocated in international trade in animal and plant Dyer Island; however, a characteristic of South Africa’s Policy on the species is not detrimental to the survival the avian cholera outbreaks was Management of Seals, Seabirds, and of wild populations by regulating the significant mortality for a single species Shorebirds, which allows for the culling import, export, and reexport of CITES- ( Phalacrocorax of specific seals responsible for the listed animal and plant species (USFWS capensis) with little impact on other predation of seabirds of conservation 2010, unpaginated). Under CITES, a species (Waller and Underhill 2007, p. concern (Kemper 2009, pers. comm.; species is listed at one of three levels of 109). During the 2004–2005 outbreak, Department of Environmental Affairs protection (i.e., regulation of which was the largest in extent, only and Tourism 2007, p. 6). Some seals international trade), which have one African penguin death was recorded killing penguins have been removed different permit requirements (CITES (Waller and Underhill 2007, p. 107). from South African localities (Crawford 2010b, unpaginated). Appendix II Therefore, we find that avian cholera 2009, pers. comm.), and confirmed includes species requiring regulation of has had a minimal effect on African problem seals are culled at three islands international trade in order to ensure

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that trade of the species is compatible Conservation Laws Amendment Act tourism activities, and impacts from with the species’ survival. International 2000, p. 88), providing protection from unregulated, scientific research trade in specimens of Appendix-II hunting or requiring a permit for activities. species is authorized when the possession of the species. According to The South African Marine Pollution permitting authority has determined Ellis et al. (1998, p. 115), this status (Control and Civil Liability) Act (No. 6 that the export will not be detrimental applies to the Northern Cape, Western of 1981) (SAMPA) provides for the to the survival of the species in the wild Cape, and Eastern Cape Provinces as protection of the marine environment and that the specimens to be exported well. (the internal waters, territorial waters, were legally acquired (CITES 2010a, In Namibia, the African penguin is and exclusive economic zone) from unpaginated). As discussed under listed as a ‘‘Specially Protected Bird,’’ pollution by oil and other harmful Factor B, we do not consider under the draft Parks and Wildlife substances, and is focused on international trade to be a threat Management Bill 2001, due to the recent preventing pollution and determining impacting the African penguin. rapid decline (Kemper 2009, liability for loss or damage caused by Therefore, protection under this Treaty unpaginated; Ministry of Fisheries and the discharge of oil from ships, tankers, is an adequate regulatory mechanism. Marine Resources 2009, p. 22; Kemper and offshore installations. The SAMPA This species is also included under et al. 2007c, p. 326); however, we could prohibits the discharge of oil into the Appendix II of the Convention on not find any information indicating this marine environment, sets requirements Migratory Species (CMS), of which bill has been finalized. Under the for reporting discharge or likely South Africa is a Party. Inclusion in Namibian Marine Resources Act of 2000 discharge and damage, and designates Appendix II encourages multistate and (Part IV, 18(1)(b) and (c)), except in the South African Maritime Safety regional cooperation for conservation terms of an exploratory right or an Authority the powers of authority to (CMS 2009, p. 6). The African-Eurasian exemption, a person may not kill, take steps to prevent pollution in the Waterbird Agreement (AEWA) was disturb, or maim any penguin or harvest case of actual or likely discharge and to developed under CMS auspices and any bird on any island, rock, or guano remove pollution should it occur, became effective on November 1, 1999. platform in Namibian waters, or on the including powers of authority to direct The Agreement covers 119 Range States shore seaward of the high-water mark, ship masters and owners in such in Africa, Europe, parts of Canada, or in the air above such areas. This Act situations. The SAMPA also contains Central Asia, and the Middle East and also addresses discharge of injurious liability provisions related to the costs focuses on 255 waterbird species, substances into the marine environment of any measures taken by the authority including the African penguin (AEWA and killing or disabling of marine to reduce damage resulting from 2010, p. 10; AEWA 2008, p. 1). Parties animals (Ministry of Fisheries and discharge (Marine Pollution (Control to the Agreement are encouraged to Marine Resources 2009, p. 43). and Civil Liability) Act of 1981 2000, engage in a wide range of conservation Additionally, all Namibian breeding pp. 1–22). actions provided in a comprehensive locations for the African penguin fall South Africa is a signatory to the 1992 Action Plan (2009–2012). These actions within the recently proclaimed International Convention on Civil address species and habitat Namibian Island’s Marine Protected Liability for Oil Pollution Damages and conservation, management of human Area (MPA) (Kemper 2009, pers. its Associate Fund Convention activities, research and monitoring, comm.). One of the key goals of the (International Fund for Animal Welfare education and information, and MPA is to provide greater protection to (IFAW) 2005, p. 1), and southern South implementation (AEWA 2010, p. 11). the breeding and foraging habitat of African waters have been designated as Under South Africa’s Biodiversity Act endangered seabirds, including the a Special Area by the International of 2004, the African penguin is African penguin. The MPA will provide Maritime Organization, providing classified as a protected species, defined high protection status for specific measures to protect wildlife and the as an indigenous species of ‘‘high islands and, among other marine-related marine environment in an ecologically conservation value or national issues, addresses landing on islands, important region used intensively by importance’’ that requires national guano scraping, mining, boat-based eco- shipping (International Convention for protection (Republic of South Africa tourism, and risks associated with the Prevention of Pollution from Ships 2004, p. 52; Republic of South Africa shipping-related threats, such as oil (MARPOL) 2006, p. 1). One of the 2007, p. 10). Activities that may be spills (Ministry of Fisheries and Marine prohibitions in such areas is on oil carried out with respect to such species Resources 2009, pp. 51–88). tankers washing their cargo tanks. are restricted and cannot be undertaken Kemper et al. (2007c, p. 326) reported Despite these existing regulatory without a permit (Republic of South that African penguin colonies in South mechanisms, the African penguin Africa 2004, p. 50). Restricted activities Africa are all protected under continues to decline due to the effects include among other things: Hunting, authorities ranging from local, to of habitat destruction, predation, and oil capturing, or killing living specimens of provincial, to national park status, and pollution. We find that these regulatory listed species by any means; collecting all Namibian breeding colonies are and conservation measures have been specimens of such species (including under some protection, from restricted insufficient to significantly reduce or the animals themselves, eggs, or access to national park status. While we remove the threats to the African derivatives or products of such species); have no information that allows us to penguin and, therefore, that the importing, exporting, or reexporting; evaluate their overall effectiveness, inadequacy of existing regulatory having such specimens within one’s these national, regional, and local mechanisms is a threat to this species. physical control; or selling or otherwise measures to prohibit activities involving trading in such specimens (Republic of African penguins without permits Factor E. Other Natural or Manmade South Africa 2004, p. 18). issued by government authorities and to Factors Affecting the Continued The species is classified as control or restrict access to African Existence of the Species ‘endangered’ in Nature and penguin colonies are appropriate to Over the period from 1930 to the Environmental Conservation Ordinance, protecting African penguins from land- present, fisheries harvest by man and No. 19 of the Province of the Cape of based threats, such as harvest of more recently competition from Good Hope (Western Cape Nature penguins or their eggs, disturbance from fisheries, as well as seals, have hindered

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the African penguin’s historical ability combined spawner biomass of fish prey been frequently impacted by both major to rebound from oceanographic changes was less than 2 million T (1.8 million and minor oil spills. Since 1948, there and prey regime shifts. The reduced t), pairs of African penguins fledged an have been 13 major oil spill events in carrying capacity of the Benguela average of only 0.46 chicks annually. South Africa, each of which oiled from ecosystem presents a significant threat When it was above 2 million T (1.8 500 to 19,000 African penguins. Nine of to survival of African penguins million t), annual breeding success had these involved tanker collisions or (Crawford et al. 2007b, p. 574). a mean value of 0.73 chicks per pair groundings, three involved oil of Crawford (1998, pp. 355–364) (Crawford et al. 2006, p. 119). The unknown origins, and one involved an described the historical response of significant relationships obtained oil supply pipeline bursting in Cape African penguins to regime shifts between breeding success of African Town harbor (Underhill 2001, pp. 2–3). between their two primary prey species, penguins and estimates of the biomass In addition to these major events, which sardines and anchovies, both in terms of of their fish prey confirm that are described in detail below, there are numbers and colony distribution from reproduction is influenced by the a significant number of smaller spill the 1950s through the 1990s. There was abundance of food (Adams et al. 1992, events, impacting smaller number of a repeated pattern of individual colony p. 969; Crawford et al. 1999, p. 143). birds. These smaller incidental spills collapse in some areas and, as the new The levels of breeding success recorded result in about 1,000 oiled penguins food source became dominant, new in the most recent studies of the African being brought to SANCCOB, which has colony establishment and population penguin were found to be inadequate to facilities to clean oiled birds, over the increase in other areas. Crawford (1998, sustain the African penguin population course of each year (Adams 1994, pp. p. 362) hypothesized that African (Crawford et al. 2006, p. 119). 37–38; Underhill 2001, p. 1). Overall, penguins have coped successfully with In addition to guano collection, as from 1968 to the present, SANCCOB many previous sardine-anchovy shifts. described in Factor A, disturbance of (2007b, p. 2), has handled more than Specific mechanisms, such as the breeding colonies may arise from other 83,000 oiled sea birds, including many emigration of first-time breeders from human activities such as tourism (Ellis African penguins. natal colonies to areas of greater forage et al. 1998, p. 121). Such disturbances The most recent oil spill occurred in abundance may have historically helped can cause the penguins to panic and April 2009 when oil began leaking from them successfully adapt to changing desert their nesting sites. In both South the hull of a fishing trawler, Meob Bay, prey location and abundance. However, Africa and Namibia, there is increasing which sank in June 2002. over the period from the 1930s to the pressure to open penguin viewing areas 1990s, competition for food from for tourism. Although this type of Approximately 62 mi (100 km) of increased commercial fish harvest and tourism is currently occurring, it is in coastline, from Possession Island to from burgeoning fish take by recovering Boulders, South Africa, where penguins Mercury Island (prime breeding populations of the Cape appears are used to human presence, and the locations), were affected. At least 160 to have overwhelmed the ability of tourism is being conducted in a African penguins were rescued and African penguins to compete; the take of controlled manner (Kemper 2009, pers. taken to rehabilitation facilities to be fish and cephalopods by man and seals comm.). Unless other areas identified treated (Bause 2009, unpaginated). The increased by 2 million tons (T) (1.8 for tourism development are carefully most serious event occurred on June 23, million tonnes (t)) per year from the controlled, the disturbance could be 2000, when the iron ore carrier Treasure 1930s to the 1980s (Crawford 1998, p. detrimental to breeding success sank between Robben and Dassen 362). Crawford et al. (2007b, p. 574) (Kemper 2009, pers. comm.). Islands, where the largest and third- conclude that due to the increased Exploitation and disturbance by humans largest colonies of African penguin competition with purse-seine (net) is probably the reason for penguins occur (Crawford et al. 2000, pp. 1–4). fisheries and abundant fur seal ceasing to breed at four colonies, one of Large quantities of oil came ashore at populations, the carrying capacity of the which has since been re-colonized both islands. South Africa launched a Benguela ecosystem for African (Crawford et al. 1995b, p. 112). Burrows concerted effort to collect and clean penguins has declined by 80 to 90 can be accidentally destroyed by oiled birds, to move nonoiled birds percent from the 1920s to the present humans walking near breeding sites, away from the region, to collect penguin day. In the face of increased competition leading to penguin mortality. In chicks for artificial rearing, and to clean and reduced prey resources, African addition, human-caused disturbance up oiled areas. Nineteen thousand oiled penguin populations are no longer during avian cholera outbreaks may African penguins were brought for rebounding successfully from affect African penguins. Although avian cleaning to the SANCCOB facility. An underlying prey shifts and have cholera mainly affects Cape , additional 19,500 penguins were experienced sharply decreased human presence to remove carcasses, in relocated to prevent them from being reproductive success. Kemper (2009, an effort to reduce the spread of the oiled. In total, 38,500 birds were pers. comm.; Kemper et al. 2007c, p. disease, is considered a high handled in the context of this major oil 339) has noted, however, that the disturbance activity and has caused spill. The last oil was removed from Namibian Cape fur seal population is penguins to move from nests exposing Treasure on July 18, 2000. Two months shifting north, away from penguin eggs and chicks to predation by kelp after the spill, mortality of African breeding and foraging areas. gulls (Waller and Underhill 2007, p. penguins from the spill stood at 2,000 These negative effects of decreased 109). adults and immature birds and 4,350 prey availability on reproductive Oil and chemical spills can have chicks (Crawford et al. 2000, p. 9). The success and on population size have direct effects on the African penguin. Avian Demography Unit (ADU) of the been documented. Breeding success of Based on previous incidents and despite has African penguins was measured at national and international measures to undertaken long-term monitoring of Robben Island from 1989 to 2004 prevent and respond to oil spills penguins released after spill incidents. (Crawford et al. 2006, p. 119) in concert referenced in Factor D, we consider this Response in the Treasure spill and with hydro-acoustic surveys to estimate to be a significant threat to the species. success in rehabilitation have shown the spawner biomass of anchovy and African penguins live along the major that response efforts have improved sardine off South Africa. When the global transport route for oil and have dramatically.

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The next most serious spill of the in upwelling intensities and increased Conclusion and Determination for the Apollo Sea, which occurred in June sea surface temperatures. These changes African Penguin 1994, released about 2,401 T (2,177 t) of have hampered the recovery of sardine We have carefully assessed the best fuel oil near Dassen Island. About and anchovy populations in the region scientific and commercial information 10,000 penguins were contaminated even as fishing pressure on those available regarding the threats faced by with only 50 percent of these birds species has been relaxed, forcing this species. The African penguin is in successfully de-oiled and put back in penguins to shift to a less nutritious serious decline throughout all of its the wild. Over the 10 years following prey, the pelagic goby. The changes range, and the decline is currently this spill, the ADU followed banded have also forced a regime shift in the accelerating. This decline is due to released birds to monitor their survival Benguela ecosystem to other fish threats of a high magnitude—(1) The and reproductive histories (Wolfaardt et species, which are not the prey of immediate impacts of a reduced al. 2007, p. 68). They found that success African penguins. The phenomenon of carrying capacity for the African in restoring oiled birds to the point that sulfide eruption has further hampered penguin throughout its range due to they attempt to breed after release has the recovery of the food base. food base declines and competition for steadily improved. The breeding success In the Western Cape, in addition to food with Cape fur seals (severely of restored birds and the growth rates of the severe fisheries declines and severe exacerbated by rapid ongoing ecosystem their chicks, however, are lower than for reduction of the carrying capacity of the changes in the marine environment at nonoiled birds. Nevertheless, because marine environment, the primary food the northern end of the penguin’s adults could be returned successfully to source of African penguins has, the breeding population, they beginning in 1997, shifted consistently distribution and by major shifts of prey concluded that de-oiling and eastward to areas east of the resources to outside of the accessible reintroduction of adults are effective southernmost tip of South Africa. Over foraging range of breeding penguins at conservation interventions (Wolfaardt et the past decade, the primary food base the southern end of distribution); (2) the al. 2007, p. 68). for the most populous African penguin continued threats to African penguins Therefore, we find that immediate colonies in South Africa has shifted on land throughout their range from and ongoing competition for food outside the accessible foraging range for habitat modification and destruction, resources with fisheries and other those colonies. This shift has led to facilitating predation; and (3) the species, overall decreases in food declines in penguin recruitment and immediate and ongoing threat of oil abundance, and ongoing severe direct significant decreases in adult survival spills and oil pollution to the African and indirect threat of oil pollution are and represents an additional significant penguin. The severity of these threats to threats to the African penguin. immediate threat to the West Cape the African penguin within its breeding populations of the African penguin. and foraging range puts the species in African Penguin Finding On land, the historical effects of danger of extinction. Therefore, we find The African penguin is presently in a guano removal from penguin breeding that the African penguin is in danger of serious, accelerating decline throughout islands continue to be felt in lack of extinction throughout all of its range. its range, with a 60.5 percent decline predator protection and heat stress in Available Conservation Measures over 28 years (three generations). This breeding birds. Predation on penguins verified, accelerating, and immediate by Cape fur seals and kelp gulls has Conservation measures provided to decline across all areas inhabited by become a predominant threat factor. In species listed as endangered or African penguin populations are Namibia, where African penguin threatened under the Act include directly attributable to ongoing threats numbers are lowest, with only 3,402 recognition, requirements for Federal that are severely impacting the species pairs, low-lying islands have protection, and prohibitions against at this time. Historical threats to experienced flooding from increased certain practices. Recognition through terrestrial habitat, such as destruction of rainfall and rising sea-levels, listing results in public awareness, and nesting areas for guano collection and threatening 10 percent of the nests in encourages and results in conservation the threat of direct harvest, have been the four major breeding colonies, further actions by Federal governments, private overtaken by long-term competition for stressing a species under severe agencies and groups, and individuals. prey from human fisheries beginning in immediate threat from factors in the Section 7(a) of the Act, as amended, the 1930s. The impact of competition marine environment. and as implemented by regulations at 50 from fisheries is now exacerbated by the Finally, the marine and coastal habitat CFR part 402, requires Federal agencies increased role of abundant Cape fur seal of the African penguin lies on one of the to evaluate their actions within the populations throughout the range in world’s busiest sea lanes. Despite United States or on the high seas with competing for the prey of the African improvements in oil spill response respect to any species that is proposed penguin (Crawford 1998, p. 362). In capability and global recognition of the or listed as endangered or threatened, combination, competition with fisheries importance of protecting these waters and with respect to its critical habitat, and fur seals have reduced the carrying from the impacts of oil, catastrophic and if any is being designated. However, capacity of the marine environment for chronic spills have been and continue to given that the African penguin is not African penguins to 10 to 20 percent of be the norm. The most recent native to the United States, critical its 1920s value and by themselves catastrophic spill in 2000 in South habitat is not being designated for this represent significant immediate threats Africa resulted in the oiling of 19,000 species under section 4 of the Act. to the African penguin throughout all of penguins and the translocation of Section 8(a) of the Act authorizes its range. 19,500 more birds in direct danger from limited financial assistance for the Changes in the different portions of the spill. With the global population at development and management of the range of the African penguin are a historical low (between 31,000 and programs that the Secretary of the adding additional stressors to the 32,000 pairs), future oil spills, which Interior determines to be necessary or overall declines in the prey of African consistent experience shows may occur useful for the conservation of penguins. In Namibia, the fisheries at any time, pose a significant and endangered and threatened species in declines in the marine environment are immediate threat to the species foreign countries. Sections 8(b) and 8(c) being exacerbated by long-term declines throughout all of its range. of the Act authorize the Secretary to

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encourage conservation programs for endangered species, and at 17.32 for Author foreign endangered species and to threatened species. With regard to The primary author of this final rule provide assistance for such programs in endangered wildlife, a permit must be is staff of the Branch of Foreign Species, the form of personnel and the training issued for the following purposes: for Endangered Species Program, U.S. Fish of personnel. scientific purposes, to enhance the and Wildlife Service, 4401 N. Fairfax The Act and its implementing propagation or survival of the species, Drive, Arlington, Virginia 22203. regulations set forth a series of general and for incidental take in connection prohibitions and exceptions that apply with otherwise lawful activities. List of Subjects in 50 CFR Part 17 to all endangered and threatened Endangered and threatened species, wildlife. As such, these prohibitions Required Determinations Exports, Imports, Reporting and would be applicable to the African National Environmental Policy Act recordkeeping requirements, penguin. These prohibitions, under 50 (NEPA) Transportation. CFR 17.21, make it illegal for any person subject to the jurisdiction of the United We have determined that Regulation Promulgation States to ‘‘take’’ (take includes harass, environmental assessments and ■ Accordingly, we amend part 17, harm, pursue, hunt, shoot, wound, kill, environmental impact statements, as subchapter B of chapter I, title 50 of the trap, capture, collect, or to attempt any defined under the authority of the Code of Federal Regulations, as set forth of these) within the United States or National Environmental Policy Act of below: upon the high seas, import or export, 1969 (42 U.S.C. 4321 et seq.), need not deliver, receive, carry, transport, or ship be prepared in connection with PART 17—[AMENDED] in interstate or foreign commerce in the regulations adopted under section 4(a) ■ 1. The authority citation for part 17 course of a commercial activity, or to of the Act. We published a notice sell or offer for sale in interstate or continues to read as follows: outlining our reasons for this foreign commerce, any endangered Authority: 16 U.S.C. 1361–1407; 16 U.S.C. determination in the Federal Register wildlife species. It also is illegal to 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– on October 25, 1983 (48 FR 49244). possess, sell, deliver, carry, transport, or 625, 100 Stat. 3500; unless otherwise noted. ship any such wildlife that has been References Cited ■ 2. Amend § 17.11(h) by adding a new taken in violation of the Act. Certain ‘‘ ’’ A complete list of all references cited entry for Penguin, African, in exceptions apply to agents of the alphabetical order under BIRDS to the in this final rule is available on the Service and State conservation agencies. List of Endangered and Threatened Internet at http://www.regulations.gov We may issue permits to carry out Wildlife to read as follows: otherwise prohibited activities or upon request from the Endangered involving endangered and threatened Species Program, U.S. Fish and Wildlife § 17.11 Endangered and threatened wildlife species under certain Service (see the FOR FURTHER wildlife. circumstances. Regulations governing INFORMATION CONTACT section). * * * * * permits are codified at 50 CFR 17.22 for (h) * * *

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 — Entire ...... E 775 NA NA demersus. South Africa, Na- mibia.

*******

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

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