Federal Register / Vol. 75, No. 148 / Tuesday, August 3, 2010 / Rules and Regulations 45497 §101.147 [Corrected] (Spheniscus humboldti), and erect- Summary of Comments and On page 41771, in §101.147, in the crested penguin (Eudyptes sclateri) Recommendations third column, the tables are corrected to under the Endangered Species Act of In the proposed rule published on read as set forth below: 1973, as amended (Act). December 18, 2008 (73 FR 77303), we * * * * * DATES: This rule becomes effective requested that all interested parties (s) * * * September 2, 2010. submit information that might contribute to development of a final ADDRESSES: This final rule is available Receive rule. We also contacted appropriate Transmit (receive) (MHz) (transmit) on the Internet at http:// scientific experts and organizations and (MHz) www.regulations.gov. Comments and invited them to comment on the materials received, as well as supporting proposed listings. We received 13 (3) 10 MHz bandwidth chan- documentation used in the preparation nels: comments: 4 from members of the of this rule, will be available for public public, and 9 from peer reviewers. inspection, by appointment, during ***** We reviewed all comments received 2 2 normal business hours at the U.S. Fish 22025 .................................. 23225 from the public and peer reviewers for and Wildlife Service, 4401 N. Fairfax substantive issues and new information ***** Drive, Suite 420, Arlington, VA 22203. 22075 2 .................................. 23275 2 regarding the proposed listing of these FOR FURTHER INFORMATION CONTACT: five species, and we have addressed ***** Janine Van Norman, Chief, Branch of those comments below. Overall, the Foreign Species, Endangered Species commenters and peer reviewers * * * * * Program, U.S. Fish and Wildlife Service, supported the proposed listings. One 4401 North Fairfax Drive, Room 420, comment from the public included Receive Arlington, VA 22203; telephone 703- substantive information; other Transmit (receive) (MHz) (transmit) 358-2171; facsimile 703-358-1735. If you comments simply supported the (MHz) use a telecommunications device for the proposed listing without providing (7) 50 MHz bandwidth chan- deaf (TDD), call the Federal Information scientific or commercial data. Relay Service (FIRS) at 800-877-8339. nels: Peer Review SUPPLEMENTARY INFORMATION: ***** In accordance with our policy 22025 2 .................................. 23225 2 Background published on July 1, 1994 (59 FR 22075 2 .................................. 23275 2 34270), we requested expert opinions On December 18, 2008, we published from 14 knowledgeable peer reviewers ***** a proposed rule (73 FR 77303) to list the with scientific expertise that included yellow-eyed penguin (Megadyptes 2 These frequencies may be assigned to low familiarity with the species, the power systems, as defined in paragraph (8) of antipodes), white-flippered penguin geographic region in which the species this section. (Eudyptula minor albosignata), occur, and conservation biology Fiordland crested penguin (Eudyptes * * * * * principles. We received responses from pachyrhynchus), Humboldt penguin nine of the peer reviewers. They [FR Doc. C1–2010–17205 Filed 8–2–10; 8:45 am] (Spheniscus humboldti), and erect- generally agreed that the description of BILLING CODE 1505–01–D crested penguin (Eudyptes sclateri) the biology and habitat for each species under the Endangered Species Act of was accurate and based on the best 1973, as amended (Act; 16 U.S.C. 1531 available information. They provided DEPARTMENT OF THE INTERIOR et seq.). That document also served as some new or additional information on the 12–month finding on a petition to the biology and habitat of some of these Fish and Wildlife Service list these species, which are 5 of 12 penguin species and their threats, and penguin species included in the we incorporated that information into 50 CFR Part 17 petition. We opened the public the rulemaking as appropriate. In some [Docket No. FWS-R9-IA-2008-0118] comment period on the proposed rule cases, it has been indicated in the [MO 92210-0-0010-B6] for 60 days, ending February 17, 2009, citations by ‘‘personal communication,’’ to allow all interested parties an which could indicate either an email or RIN 1018–AW40 opportunity to comment on the telephone conversation, while in other proposed rule. On March 9, 2010, the Endangered and Threatened Wildlife cases the research citation is provided. Center for Biological Diversity (CBD) and Plants; Determination of filed a complaint (CV-10-992, N.D. Cal) Peer Reviewer Comments Threatened Status for Five Penguin for failure to issue a final listing Species (1) Comment: Several peer reviewers determination within 12 months of the provided new data and information AGENCY: Fish and Wildlife Service, proposal to list the species. In a court- regarding the biology, ecology, life Interior. approved settlement agreement, the history, population estimates, and threat ACTION: Final rule. Service agreed to submit a final rule to factors affecting these penguin species, the Federal Register by July 30, 2010. and requested that we incorporate the SUMMARY: We, the U.S. Fish and Previous Federal Action new data and information into this final Wildlife Service (Service), determine rule and consider it in making our threatened status for five penguins: The For a detailed history of previous listing determination. With respect to yellow-eyed penguin (Megadyptes Federal actions involving these five potential threats, one peer reviewer antipodes), white-flippered penguin penguin species, please see the Service’s raised the issue of flipper banding of the (Eudyptula minor albosignata), proposed listing rule, which published yellow-eyed penguin. Several peer Fiordland crested penguin (Eudyptes in the Federal Register on December 18, reviewers provided clarifying pachyrhynchus), Humboldt penguin 2008 (73 FR 77303). information on predation with respect VerDate Mar<15>2010 13:37 Aug 02, 2010 Jkt 220001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\03AUR1.SGM 03AUR1 erowe on DSK5CLS3C1PROD with RULES 45498 Federal Register / Vol. 75, No. 148 / Tuesday, August 3, 2010 / Rules and Regulations to the Humboldt and white-flippered commenter indicated that the Service the oceanic pH may change in the penguins. Additionally, some of the failed to address anthropogenic climate penguins’ habitat and how the other peer reviewers provided technical change and how it will affect penguins, changes in the species’ environments corrections and brought to our attention particularly the Humboldt penguin. The would interact with other known recent papers discussing taxonomy and commenter also requested that we threats. The manner in which a change genetics. address the issue of accelerated ocean in ocean pH may affect penguins is Our Response: In addition to the warming and ocean acidification. The currently unpredictable. critical review provided by species commenter suggested that the pH experts, we considered scientific and (acidity) of the ocean is rapidly (5) Comment: The same commenter commercial information regarding these changing, and may lower by 0.3 to 0.4 requested that the Service consider penguin species contained in technical units by the year 2100, which would listing these five species as endangered documents, published journal articles, mean the acidity would increase by 100 instead of threatened based on the two and other general literature documents, to 150 percent. The commenter cited issues noted above. including over 30 documents we Orr et al. 2005 and Meehl et al. 2007. Our Response: Section 4(b)(1)(A) of reviewed since the publication of the Our Response: We thank the the Act requires us to make listing proposed rule to list these 5 penguin commenter who provided this decisions based solely on the best species. We have incorporated the new information for our consideration in scientific and commercial data information and technical corrections making this final listing determination. available. We have thoroughly reviewed into this final rule. In addition, we We will first respond to the comment all available scientific and commercial address flipper banding of the yellow- that greenhouse gas emissions will data for these species in preparing this eyed penguin, and information on accelerate ocean warming and increase final listing determination. We reviewed predation of the Humboldt and white- sea level rise. Gille (2002, p. 1276) historical and recent publications, as flippered penguins in the threats found that while ocean warming well as unpublished reports, concerning analyses for those species in this final occurred in the 1950s and 1960s, it these species. In addition, we used peer rule. leveled off in the 1980s and 1990s; review to provide a more focused, (2) Comment: One peer reviewer overall, there was an increase in ocean independent examination of the suggested that the mainland and sub- water temperature in the Southern available scientific information and its Antarctic populations of yellow-eyed Hemisphere over the past 50 years. application to the current status of the penguins should be considered separate Looking forward to years 2090-2099, species. As part of our evaluation, we management units, stating that there precipitation is predicted to increase was negligible genetic interchange across the sub-Antarctic and Antarctic carefully considered the quality and between populations. The peer reviewer region, with a greater than 20 percent reliability