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II. Executive 12866 DEPARTMENT OF THE INTERIOR set forth the procedures for adding to these lists. This is not a significant regulatory and Wildlife Service action and, therefore, was not subject to Previous Federal Actions review under Section 6(b) of the 50 CFR Part 17 On November 29, 2006, the U.S. Fish Executive Order 12866, Regulatory and Wildlife Service (Service) received [Docket No. FWS–R9–IA–2008–0069; 92210– a petition from the Center for Biological Planning and Review, dated September 0–0010 B6] 30, 1993. This rule is not a major rule Diversity (CBD) to list 12 under 5 U.S.C. 804. RIN 1018–AV73 species under the Act: ( forsteri), southern III. Regulatory Flexibility Act Endangered and Threatened Wildlife rockhopper penguin (Eudyptes and Plants; Determination of chrysocome), northern rockhopper The Regulatory Flexibility Act does Threatened Status for the New penguin (Eudyptes moseleyi), Fiordland not apply to this rule because an initial Zealand- Distinct Population (Eudyptes regulatory flexibility analysis is only Segment of the Southern Rockhopper pachyrhynchus), snares crested penguin required for proposed or interim rules Penguin (Eudyptes robustus), erect-crested that require publication for public AGENCY: penguin (Eudyptes sclateri), macaroni comment (5 U.S.C. 603) and a final Fish and Wildlife Service, Interior. penguin (Eudyptes chrysolophus), royal regulatory flexibility analysis is only penguin (Eudyptes schlegeli), white- ACTION: Final rule. required for final rules that were flippered penguin ( minor previously published for public SUMMARY: We, the U.S. Fish and albosignata), yellow-eyed penguin comment, and for which an initial Wildlife Service (Service), determine ( antipodes), African regulatory flexibility analysis was threatened status for the / penguin (Spheniscus demersus), and prepared (5 U.S.C. 604). Australia distinct population segment of (Spheniscus This final rule does not constitute a the southern rockhopper penguin humboldti). (Eudyptes chrysocome) under the On July 11, 2007, we published in the significant DFARS revision as defined at Federal Register a 90-day finding (72 FR FAR 1.501–1 because this rule will not Act of 1973, as amended. This final rule implements 37695) in which we determined that the have a significant cost or administrative petition presented substantial scientific impact on contractors or offerors, or a the Federal protections provided by the Act for this species. or commercial information indicating significant effect beyond the internal that listing 10 of the penguin species as DATES: This rule becomes effective operating procedures of the endangered or threatened may be March 24, 2011. Government. Therefore, publication for warranted, but determined that the public comment under 41 U.S.C. 418b is ADDRESSES: This final rule is available petition did not provide substantial not required. on the Internet at http:// scientific or commercial information www.regulations.gov and comments and indicating that listing the snares crested IV. Paperwork Reduction Act materials received, as well as supporting penguin and the as documentation used in the preparation endangered or threatened may be The final rule does not contain any of this rule, will be available for public information collection requirements that warranted. inspection, by appointment, during Following the publication of our 90- require the approval of the Office of normal business hours at: U.S. Fish and day finding on this petition, we initiated Management and Budget under the Wildlife Service, 4401 N. Fairfax Drive, a status review to determine if listing Paperwork Reduction Act (44 U.S.C. Suite 400, Arlington, VA 22203. each of the 10 species was warranted, chapter 35). FOR FURTHER INFORMATION CONTACT: and sought information from the public List of Subjects in 48 CFR Part 219 Janine Van Norman, Branch Chief, and interested parties on the status of Foreign Species Branch, Endangered the 10 species of . In addition, Government procurement. Species Program, U.S. Fish and Wildlife we attended the International Penguin Service, 4401 N. Fairfax Drive, Room Conference in Hobart, Tasmania, Mary Overstreet, 420, Arlington, VA 22203; telephone Australia, a quadrennial meeting of Editor, Defense Acquisition Regulations 703–358–2171; facsimile 703–358–1735. penguin scientists from September 3–7, System. If you use a telecommunications device 2007, to gather information and to Therefore, 48 CFR part 219 is for the deaf (TDD), call the Federal ensure that experts were aware of the amended as follows: Information Relay Service (FIRS) at status review. We also consulted with 800–877–8339. other agencies and range countries in an PART 219—SMALL BUSINESS SUPPLEMENTARY INFORMATION: effort to gather the best available PROGRAMS scientific and commercial information Background on these species. ■ 1. The authority citation for 48 CFR The Endangered Species Act of 1973, On December 3, 2007, we received a part 219 continues to read as follows: as amended (Act) (16 U.S.C. 1531 et 60-day Notice of Intent to Sue from the seq.), is a law that was passed to prevent CBD. On February 27, 2008, CBD filed Authority: 41 U.S.C. 421 and 48 CFR extinction of species by providing a complaint against the Department of chapter 1. measures to help alleviate the loss of the Interior for failure to make a 12- species and their habitats. Before a plant month finding (status determination) on Subpart 219.10—[Removed] or species can receive the the petition. On September 8, 2008, we protection provided by the Act, it must entered into a settlement agreement ■ 2. Remove subpart 219.10. first be added to the Federal Lists of with the CBD, in which we agreed to [FR Doc. 2011–3762 Filed 2–18–11; 8:45 am] Endangered and Threatened Wildlife submit to the Federal Register 12-month BILLING CODE 5001–08–P and Plants; section 4 of the Act and its findings for the 10 species of penguins, implementing regulations at 50 CFR 424 including the southern rockhopper

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penguin, on or before December 19, contribute to development of a final The reviewer noted that in the Campbell 2008. rule. We also contacted appropriate Plateau SPR analysis we stated On December 18, 2008, we published scientific experts and invited them to ‘‘numbers at are three documents: (1) A warranted 12- comment on the proposed listing. We reported to be stable’’, while in other month finding and proposed rule to list received 6 comments on our proposed sections of the proposed rule we the as endangered action: 4 from members of the public indicated population trends on under the Act (73 FR 77332); (2) a and 2 from peer reviewers. Two Macquarie Island were uncertain due to warranted 12-month finding and members of the public indicated the poor data. The reviewer also states that proposed rule to list the yellow-eyed species should be listed range-wide but the Macquarie Island population is penguin, white-flippered penguin, did not provide new or additional believed to have decreased from earlier Fiordland crested penguin, Humboldt information to support this claim. We reports of distribution and abundance, penguin, and erect-crested penguin as also received several comments and and that it would be more appropriate threatened under the Act (73 FR 77303); new information pertaining to species, to describe the Macquarie Island and (3) a warranted 12-month finding or portions of the southern rockhopper population as possibly stable following and proposed rule to list a significant penguin’s range, we determined in our a decrease during the past 30 or so portion of the ranfge (SPR) of the New 2008 status review (73 FR 77264) were years. Zealand/Australia distinct population not warranted for listing. We thank the Our Response: We agree with the peer segment (DPS) of the southern public and peer reviewers for this reviewer regarding inconsistencies in rockhopper penguin as threatened information and request that the public statements in the proposed rule related under the Act, together with a not- and peer reviewers continue to submit to Macquarie Island population trends. warranted 12-month finding to list the to our office (see ADDRESSES) any new The evidence does not support our remainder of the range of the southern information concerning the status of, or statement in the proposed rule that rockhopper penguin, as well as any threats to, these species. New numbers at Macquarie Island are portion of the range for the northern information will help us monitor the reported to be stable. Rather, reports rockhopper penguin, , status of the species. indicate uncertain, or declining, and emperor penguin (73 FR 77264). We reviewed all comments we population trends on the island. We We finalized the actions listed in (1) received from the public and peer appreciate the reviewer’s clarification and (2) above on September 28, 2010 (75 reviewers for substantive issues and that numbers are believed to have FR 59645), and August 3, 2010 (75 FR new information regarding the proposed decreased over recent decades from 45497), respectively. This final rule listing of the Campbell Plateau SPR of those of earlier estimates. We have made completes the action referred to in (3) the NZ–AUS DPS of southern changes to this final rule to address the above. rockhopper penguin. We address those inconsistencies in the proposed rule and The SPR we proposed for listing for comments below. characterize the Macquarie Island the southern rockhopper penguin on population as decreasing. December 18, 2010 (73 FR 77264), was Peer Review the Campbell Plateau portion of the In accordance with our policy Public Comments New Zealand/Australia (NZ–AUS) DPS. published on July 1, 1994 (59 FR (2) Comment: One commenter We implemented the Service’s peer 34270), we solicited expert opinions expressed concern over the listing of a review process and opened a 60-day from three individuals with scientific species that occurs wholly outside the comment period to solicit scientific and expertise that included familiarity with United States, and questioned the commercial information on the species the species, the geographic region in protections afforded by the Act. from all interested parties following which the species occurs, and Our Response: We appreciate this publication of the proposed rule. conservation biology principles. We comment and the opportunity to clarify On March 9, 2010, CBD filed a received responses from two of the peer the stipulations of the Act. The Act complaint against the Service for failure reviewers from whom we requested stipulates that we are to list any species to issue a final listing determination for comments. They generally agreed that determined under the Act to be seven penguin species, including the the description of the biology and endangered or threatened throughout all Campbell Plateau SPR of the NZ–AUS habitat for the species was accurate and or a significant portion of its range. The DPS of southern rockhopper penguin, based on the best available information. Act calls for this regardless of whether within 12 months of the proposals to list New or additional information on the the species occurs partially or wholly the species. In a court-approved biology of, and threats to, the southern within or outside the United States. settlement agreement, the Service rockhopper penguin was provided and Protections for foreign species under the agreed to submit a final listing incorporated into this rulemaking as Act include, among other things, determination for the Campbell Plateau appropriate. In some cases, it has been prohibitions on import and export into SPR of the NZ–AUS DPS of southern indicated in the citations by ‘‘personal or from the United States, and rockhopper penguin to the Federal communication’’ (pers. comm.), which prohibitions on sale or commercial Register by February 18, 2011. could indicate either an email or transport in interstate or foreign telephone conversation; in other cases, commerce. Protections also include Summary of Comments and the research citation is provided. provisions for: (1) Financial assistance Recommendations to countries in which species listed as We base this final listing Peer Reviewer Comments endangered or threatened under the Act determination on a review of the best (1) Comment: One peer reviewer occur; (2) encouragement of foreign scientific and commercial information found the analysis and approach used in programs to provide for the available, including all information the proposed rule to be appropriate and conservation of species, including those received during the public comment scientifically sound given the quality listed under the Act; (3) technical period. In the December 18, 2008, and patchiness of available data. assistance from Department of the proposed rule (73 FR 77264), we However, this reviewer noted Interior personnel; and (4) law requested that all interested parties inconsistencies in the proposed rule enforcement investigations and research submit information that might related to trends on Macquarie Island. abroad as deemed necessary to carry out

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the purposes of the Act. For more as a result, relationships physiology of, and food web associated information on this subject, see within the southern rockhopper species with, this penguin species. We Available Conservation Measures, are uncertain. That the species acknowledge that ocean acidification below. remains uncertain is may be a concern, but at this time, any (3) Comment: One commenter supported by the fact that a conclusion would be purely speculative asserted that the best available science comprehensive investigation of regarding how much the oceanic pH on the taxonomic status of the southern southern rockhopper penguin taxonomy may change in the penguins’ habitat and rockhopper penguin indicates the is a key recommendation of a recent how subsequent changes in the species’ species be classified as two subspecies, international workshop tasked with environments would interact with other that we should have considered the producing a plan for rockhopper known threats. The manner in which a southern rockhopper penguin as two penguin research and conservation (BLI change in ocean pH may affect penguins subspecies, and that we should analyze 2010, p. 8). Because a complete is currently unpredictable. population status and threats for each taxonomy of southern rockhopper subspecies accordingly. The commenter penguin is lacking, and because Summary of Changes From Proposed further asserted that doing so may Jouventin et al. (2006), whom we have Rule change our Significant Portion of the determined represents the best available We fully considered comments from Range analyses and conclusions. The science, were unable to make the public and peer reviewers on the commenter also states that we failed to conclusions on subspecies proposed rule to develop this final provide a justification as to why we classification, we treat the southern listing of the NZ–AUS DPS of the accepted BirdLife International’s (BLI) rockhopper penguin as one undivided southern rockhopper penguin. This final treatment of the taxa as two species but species and consider our SPR analysis rule incorporates changes to our not BLI’s treatment of the southern and conclusions to be appropriate. proposed listing based on the comments rockhopper species as two subspecies. As discussed in this final rule, recent that we received that are discussed Our Response: We accepted BLI’s evidence presented in de Dinechin et al. above, and newly available scientific assessment of the two genetic studies (2009) supports the conclusions of and commercial information. published in 2006, one which Banks et al. (2006) that the rockhopper We made some technical corrections concluded that the taxa be considered taxa consists of three species. Therefore, to this final rule, added clarifying two species (Jouventin et al. 2006), and this new evidence could also be language, and added new information one which concluded it be considered interpreted as lending support to the where appropriate, based on comments three species (Banks et al. 2006). BLI commenter’s assertion that the southern we received and new information rejected Banks et al.’s (2006) conclusion rockhopper penguin be considered two available. None of the information on the basis of small sample sizes used subspecies. However, as discussed changed our determination that the in their study and limited above, BLI has yet to consider the new southern rockhopper penguin within morphological differences between the evidence provided in de Dinechin et al. the Campbell Plateau region warrants southern and eastern forms. We agreed (2009), and still considers the taxa as listing as threatened. However, due to with BLI’s assessment of these two two species. Because we rely on BLI for peer reviewer comments and newly studies, and we accepted Jouventin et expert assessment of the literature available information, in this final rule al. (2006) as the best available science pertaining to the taxonomy of the we determine that the population on on the taxonomy of the complex. The species, and because there are current Macquarie Island is declining and is commenter provided no new gaps in taxonomic research on the threatened by changes in the marine information on this subject, and we species, especially with respect to the environment. We therefore determine uphold our decision to accept Jouventin NZ–AUS DPS, we continue to consider that the species is threatened et al. (2006) as the best available science Jouventin et al. (2006) the best available throughout the entire NZ–AUS DPS, in this final rule. science and, consequently, treat the and we list the entire DPS as threatened We agree with the commenter that rockhopper penguin as two species, and in this final rule. We feel that listing the treating the southern rockhopper the southern rockhopper penguin as an entire DPS represents a relatively minor penguin as comprising two subspecies undivided species. change from the proposed action. may change our SPR analyses and We have made changes in this final Although listing the entire DPS adds an conclusions. However, we do not accept rule to clarify our rationale and additional range country to the affected BLI’s treatment of the southern justification for why we did not accept area, it extends protections of the Act to rockhopper penguin as two subspecies. BLI’s treatment of the southern penguins breeding on only one Jouventin et al. (2006), which we accept rockhopper penguin as two subspecies. additional island in the Pacific Ocean as the best available information, did (4) Comment: The same commenter region of the species’ range. not make any conclusions regarding stated that our analysis of Factor A (the further divisions or subspecies Present or Threatened Destruction, Species Information classification within the taxa. They Modification, or Curtailment of Habitat Taxonomy indicate that their research does not or Range) omits any mention or allow them to make conclusions beyond discussion of ocean acidification, and Rockhopper penguins are among the those made, i.e. that rockhopper thus fails to consider the best available smallest of the world’s penguins, penguins consist of two species. In science on the threat that ocean averaging 20 inches (in) (52 centimeters addition, the three recent genetic acidification poses to the southern (cm)) in length and 6.6 pounds (lbs) (3 studies (discussed above) include rockhopper penguin’s marine foraging kilograms (kg)) in weight. They are the samples from only two of the three habitat and prey species. most widespread of the crested widely separated regions (Indian Ocean, Our Response: We acknowledge that penguins ( Eudyptes), and are so Pacific Ocean, and Patagonia-Atlantic the issue of ocean acidification was not named because of the way they hop Ocean) in which southern rockhopper directly addressed in the proposed rule. from boulder to boulder when moving penguins occur. None of these studies With respect to penguins, the best around their rocky colonies. analyzed samples from the Pacific available information does not address Rockhopper penguins are found on Ocean region (the NZ–AUS DPS), and, how ocean acidity would impact the islands from near the Antarctic Polar

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Front to near the Subtropical of information on the status of , the rockhopper penguins as two species, the Convergence, in the South Atlantic, conclusion of Jouventin et al. (2006, p. northern rockhopper penguin (E. Pacific, and Indian Oceans (Marchant 3,419) that there are two species of moseleyi) and the southern rockhopper and Higgins 1990, p. 183). rockhopper penguin. In doing so, they penguin (E. chrysocome). We accept The taxonomy of the rockhopper noted that the proposed splitting of an Jouventin et al. (2006) as the best complex is contentious. Formerly eastern rockhopper species from E. available science because the treated as three subspecies (Marchant chrysocome had been rejected because rockhopper taxonomy is uncertain, and Higgins 1990, p. 182), recent papers of small sample sizes and weak because we accept BLI’s assessment of suggest that these should be treated as morphological differentiations between the literature and determination that either two species (Jouventin et al. 2006, the circumpolar populations south of Jouventin et al. (2006) represents the pp. 3,413–3,423) or three species (Banks the Subtropical Convergence (BLI best available science on the subject, et al. 2006, pp. 61–67; de Dinechin et al. 2008a, p. 1; Banks et al. 2006, p. 67). and because BLI has yet to consider de 2009, pp. 693–702). Thus, BLI considered Jouventin et al. Dinechin et al. (2009). Jouventin et al. (2006, pp. 3,413– (2006) the best available science. BLI Life History of Southern Rockhopper 3,423), following up on recorded has yet to consider the new evidence Penguins differences in breeding phenology, song presented in de Dinechin et al. (2009), characteristics, and head ornaments and still treats the rockhopper complex In general, southern rockhopper used as mating signals, conducted as consisting of two species. penguin breeding begins in early genetic analysis between northern We do not accept BLI’s treatment of October (the austral spring) when males subtropical rockhopper penguins and the southern rockhopper species as arrive at the breeding site a few days southern subantarctic rockhopper consisting of two subspecies. Jouventin before females. Breeding takes place as penguins using the Subtropical et al. (2006), on which BLI based their soon as the females arrive, and two eggs Convergence, a major ecological decision to treat rockhopper penguins as are laid 4 to 5 days apart in early boundary for marine organisms, as the two species, do not make any November. The first egg laid is typically dividing line between them. Their conclusions regarding further divisions smaller than the second, 2.8 versus 3.9 results supported the separation of E. within these species, or subspecies ounces (oz) (80 versus 110 grams (g)), chrysocome into two species, the classification. They indicate that their and is the first to hatch. Incubation lasts southern rockhopper (E. chrysocome) research provides evidence for about 33 days and is divided into three and the northern rockhopper (E. speciation between northern and roughly equal shifts. During the first 10- moseleyi). southern rockhopper populations, but day shift, both parents are in Banks et al. (2006, pp. 61–67) explicitly refrain from making attendance. Then, the male leaves to compared the genetic distances between conclusions on the taxonomic structure feed while the female incubates during the three rockhopper subspecies and of rockhopper penguins as a whole, the second shift. The male returns to compared them with such sister species noting that further research is needed to take on the third shift. He generally as macaroni penguins. Banks et al. determine the definitive taxonomy of remains for the duration of incubation (2006, pp. 61–67) suggested that three the genus (Jouventin et al. 2006, pp. and afterward to brood the chicks while rockhopper subspecies—southern 3,421). In addition, existing genetic the female leaves to forage and returns rockhopper (E. chrysocome studies do not include analysis of to feed the chicks. Such a system of chrysocome), eastern rockhopper (E. samples from the NZ–AUS DPS, which extended shift duration requires lengthy chrysocome filholi), and northern comprises one of the three regions in the fasts for both parents, but allows them rockhopper (E. chrysocome moseleyi)— world in which southern rockhopper to forage farther afield than would be should be split into three species. penguins breed. As a result, subspecies the case if they had a daily changeover. More recently, de Dinechin et al. relationships within the southern The newly hatched chicks may have to (2009, pp. 693–702) used gene rockhopper species are uncertain. The wait up to a week before the female sequences from Jouventin et al. (2006), uncertainty of the species taxonomy is returns with their first feed. During this Banks et al. (2006), and new samples further supported by the fact that a period, chicks are able to survive on from the to determine comprehensive investigation of existing yolk reserves, after which they divergence times between populations. southern rockhopper penguin taxonomy begin receiving regular feedings of Their results suggest the rockhopper was a key recommendation of a recent around 5 oz (150 g) in weight. By the complex consists of three species, international workshop tasked with end of the 25 days of brooding, chicks supporting the conclusions of Banks et producing a plan for rockhopper are receiving regular feedings averaging al. (2006). penguin research and conservation (BLI around 1 lb 5 oz (600 g). By this stage Despite these three genetic studies, 2010, p. 8). Because a complete they are able to leave the nest and group the taxonomy of rockhopper penguins taxonomy of southern rockhopper (cre`che) with other chicks, allowing remains uncertain due to gaps in the penguin is lacking, and because both adults to forage to meet the chicks’ taxonomic research. For instance, the Jouventin et al. (2006, pp. 3,413–3,423), increasing demands for food (Marchant three genetic studies (discussed above) whom we have determined represents and Higgins 1990, p. 190). include samples from only two of the the best available science, were unable During the breeding season, penguins three widely separated regions (Indian to make conclusions on subspecies are susceptible to local ecosystem Ocean, Pacific Ocean, and Patagonia- classification, we treat the southern perturbations because they are Atlantic Ocean) in which southern rockhopper penguin as one undivided constrained by how far they can swim rockhopper penguins breed. None of species. However, we will continue to from the terrestrial habitat in search of these studies analyzed samples from the evaluate the taxonomy of rockhopper food (Davis 2001, p. 9). Therefore, a Pacific Ocean region (the NZ–AUS penguins as new information becomes decrease in food availability could have DPS). available and will reevaluate their status substantial consequences on BLI (2007, p. 1; 2008a, p. 1) reviewed as appropriate. reproductive success. Southern the two papers published in 2006 and On the basis of our review, we accept rockhopper penguins typically rear only made the decision to adopt, for the Jouventin et al. (2006) as the best one of two chicks, although those near purposes of their continued compilation available science and treat the the Falkland Islands are capable of

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rearing both chicks to fledging when et al. 2006, p. 735) and traveled up to 100,000–300,000 pairs in the early conditions are favorable (Guinard et al. 1,242 mi (2,000 km) from the colony. 1980s (Woehler 1993, p. 60; Taylor 1998, p. 226). Reported breeding success 2000, p. 54). The 2006 Management Distribution and Abundance in the NZ– is highly variable, ranging from 0.23 to Plan for the Macquarie Island Nature AUS DPS 0.91 chicks per breeding pair, with the Reserve and World Heritage Area greatest reported success rate (0.91 The NZ–AUS DPS is comprised of the reported that the total number of chicks per breeding pair) occurring at marine foraging area and four breeding southern rockhopper penguins in this the Falkland Islands (Crawford et al. islands within the Pacific Ocean region. area may be as high as 100,000 breeding 2008, p. 186; Hull et al. 2005, p. 714; These four islands are: Macquarie Island pairs. However, estimates from 2006–07 Raya Ray et al. 2007, p. 829; Poisbleau (in Australia waters); and Campbell, indicate 32,000–43,000 breeding pairs at et al. 2008, p. 930; Clausen and Putz Auckland, and Antipodes Islands (in Macquarie Island (BLI 2008, p. 2), an 2002, p. 51). Chicks fledge at around 10 New Zealand waters) (BLI 2007, pp. 2– order of magnitude lower than the weeks of age, and adults then spend 20 3; Woehler 1993, pp. 58–61; Gales et al. earlier categorical estimate. Given that to 25 days at sea building up body fat 2010, pp. 92–93). Southern rockhopper the earlier estimate is categorical, reserves in preparation for their annual penguin breeding colonies within the quantitative data on trends on this molt. The molt lasts for around 25 days, NZ–AUS DPS inhabit a unique island are not available. However, and the birds then abandon the breeding ecological and geographical position in expert opinion suggests a declining site. They spend the winter feeding at the range of the species. The underwater trend on the island. Gales et al. (2010, sea, prior to returning the following topography and oceanography of this p. 93) state that there are no reliable spring (Marchant and Higgins 1990, p. area is unique and has been described data on trends, but categorize the 185). in detail in the Macquarie Island population, based on anecdotal Management Plan (Parks and Wildlife observations, as having decreased. The southern rockhopper penguin is Service (Australia) 2006, pp. 20–22). widely distributed around the Southern Hilton and Otley (2010, pp. 32–33) The islands sit in areas of relatively acknowledge the lack of quantitative Ocean, breeding on subantarctic islands shallow water, generally less than 3,280 in the Indian, Pacific, and Atlantic information on the population but ft (1,000 m) deep. Macquarie Island is categorize the long-term population Oceans (Shirihai 2002, p. 71; Otley and on the shallow Macquarie Ridge, which trend as decreasing. Woehler (2009, pp. Thompson 2010, p. 28). Breeding is associated with a deep trench to the 1–2) describes the population as islands are clustered in three different east, and connects to the north with the possibly stable following a decrease geographic regions: the Pacific Ocean broader Campbell Plateau, an extensive during, approximately, the last 30 years. region, which comprises the NZ–AUS area of shallow water that is part of the Given these expert opinions on long- DPS; the Patagonia region, which continental shelf extending southeast term trends, Woehler’s uncertainty includes the Falkland Islands and from New Zealand. The New Zealand about the current stability of the breeding islands in the southeast Pacific islands (Campbell, Auckland, and population, and a lack of evidence Ocean and southwest Atlantic Ocean Antipodes) with breeding colonies of indicating the population is currently surrounding Patagonia; and the Indian southern rockhopper penguins are stable, we rely on these expert opinions Ocean region. Southern rockhopper located on the Campbell Plateau. This to qualify the general long-term penguin range includes island breeding region and all their associated islands population trend on the island as habitat and marine foraging areas. In the are located north of the Antarctic Polar decreasing. breeding season, these marine foraging Front Zone (APFZ), a distinct areas may lie within as little as 6 miles hydrographic boundary with cold, Campbell, Auckland, and Antipodes (mi) (10 kilometers (km)) of the colony nutrient-rich, surface waters to the Islands (as at the Crozet Archipelago in the south and warmer, less rich, water to In New Zealand territory, southern Indian Ocean), as distant as 97 mi (157 the north. In addition, the Macquarie rockhopper penguin numbers at km) (as at the in Ridge and Campbell Plateau form a Campbell Island declined by 94 percent the Indian Ocean), or for male major obstruction to the Antarctic between the early 1940s and 1985 from rockhopper penguins foraging during Circumpolar Current, which runs approximately 800,000 breeding pairs to the incubation stage at the Falkland easterly at about 50° S latitude. This 51,500 (Cunningham and Moors 1994, Islands in the Southwest Atlantic, as further increases the high degree of p. 32). The majority of the decline much as 289 mi (466 km) away (Sagar turbulence and current variability in the appears to have coincided with a period et al. 2005, p. 79; Putz et al. 2003, p. area and is likely to directly or of warmed sea surface temperatures 141). Foraging ranges vary according to indirectly encourage biological between 1946 and 1956. It is widely the geographic, geologic, and productivity (Parks and Wildlife Service inferred that warmer waters most likely oceanographic location of the breeding (Australia) 2006, pp. 20–22). affected southern rockhopper penguins sites and their proximity to sea floor Historical numbers of southern through changes in the abundance, features (such as the continental slope rockhopper penguins in this region may availability, and distribution of their and its margins or the subantarctic have been as high as 960,000 breeding food supply (Cunningham and Moors slope) and oceanographic features (such pairs, with declines recorded from the 1994, p. 34); recent research suggests as the polar frontal zone or the Falkland New Zealand islands. Currently there they may have had to work harder to current) (Sagar et al. 2005, pp. 79–80). are approximately 89,600–101,500 find the same food (Thompson and Winter at-sea foraging areas are less breeding pairs in the region, which Sagar 2002, p. 11). According to well-documented, but penguins from represents 6 to 7 percent of the current standard photographic monitoring, the Staten Island breeding colony at the estimated population of 1.4 million numbers in most colonies at Campbell tip of South America dispersed over a southern rockhopper penguin breeding Island continued to decline from 1985 range of 501,800 square miles (mi2) (1.3 pairs range-wide. to the mid-1990s (Taylor 2000, p. 54), million square kilometers (km2)) although the extent of such declines has covering polar, sub-polar, and temperate Macquarie Island not been quantified in the literature. waters in oceanic regions of the Atlantic Order of magnitude estimates at The New Zealand Department of and Pacific as well as shelf waters (Putz Macquarie Island (Australia) reported Conservation (DOC) provided

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preliminary information from a 2007 rockhopper penguin. Analyses of large- australis), dwarf codling (Austrophycis Campbell Island survey team that ‘‘the scale declines of southern rockhopper marginata), and southern hake population is still in decline’’ (Houston penguins have uniformly ruled out that ()—while elsewhere 2008, p. 1), but quantitative analysis of impacts to the terrestrial habitat have southern rockhopper penguins were these data has not yet been completed. been a limiting factor to the species reported to eat mainly euphausiid At the , a survey in (Cunningham and Moors 1994, p. 34; () and smaller amounts 1990 found 10 colonies produced an Keymer et al. 2001, pp. 159–169; of fish and . Based on this estimate of 2,700–3,600 breeding pairs Clausen and Huin 2003, p. 394), and we comparison of different areas, the of southern rockhopper penguins have no reason to believe threats to the authors concluded that euphausiids left (Cooper 1992, p. 66). This was a terrestrial habitat will emerge in the the Campbell Island area when decrease from 1983, when 5,000–10,000 future. We, therefore, find that impacts temperatures changed, forcing the pairs were counted (Taylor 2000, p. 54). to terrestrial habitat are not a threat to southern rockhopper penguins to adopt There has been a large decline at the species. an apparently atypical, and presumably less nutritious, fish diet. The authors Antipodes Islands from 50,000 breeding Climate-Related Changes in the Marine concluded that this led to lower pairs in 1978 to 4,000 pairs in 1995 Environment (Tennyson et al. 2002, p. 244). There is departure weights of chicks and no more recent data for Auckland or Reports of major decreases in both contributed to adult declines Antipodes Islands (Houston 2008, p. 1). southern and northern rockhopper (Cunningham and Moors 1994, p. 34). penguin numbers have been linked to Subsequent research, however, has Other Status Classifications sea surface temperature changes and not supported the theory that southern The IUCN (International Union for other apparent or assumed rockhopper penguins at Campbell Island Conservation of Nature) Red List oceanographic or prey shifts in the switched prey as their ‘‘normal’’ classifies the entire southern vicinity of breeding colonies euphausiid prey moved to cooler waters rockhopper penguin species as (Cunningham and Moors 1994, pp. 27– (Cunningham and Moors 1994, pp. 34– ‘Vulnerable’ due to rapid population 36; Crawford et al. 2003, pp. 487–498; 35). This hypothesis has been tested declines, which ‘‘appear to have Clausen and Huin 2003, pp. 389–402). through stable isotope studies, which worsened in recent years.’’ Southern Within the NZ–AUS DPS at Campbell can be used to extract historical dietary rockhopper penguins are listed under Island, a 94 percent decrease in information from tissues (e.g., New Zealand’s Threat Classification southern rockhopper penguin numbers feathers). In analyses of samples from System as Nationally Endangered. The occurred between the early 1940s and the late 1800s to the present at Campbell species is not listed in Australia, which 1985 (Cunningham and Moors 1994, p. Islands and Antipodes Islands, maintains a list of, and provides 32). Cunningham and Moors (1994, pp. Thompson and Sagar (2002, p. 11) protections to, species under their 27–36) compared the pattern of the found no evidence of a shift in southern Environmental Protection and penguin decline (from 800,000 breeding rockhopper penguin diet during the Biodiversity Conservation Act. pairs in the early 1940s to 51,500 pairs period of decline. They concluded that in 1985) to patterns of sea surface southern rockhopper penguins did not Summary of Factors Affecting the DPS temperature change. The authors switch to a less suitable prey, but that Section 4 of the Act (16 U.S.C. 1533) concluded that drastic southern overall marine productivity and the and its implementing regulations at 50 rockhopper penguin declines were carrying capacity of the marine CFR part 424 set forth the procedures related to increased sea surface ecosystem declined beginning in the for adding species to the Federal Lists temperature changes at Campbell Island. 1940s. With food abundance declining of Endangered and Threatened Wildlife They found that peaks in temperature or food moving farther offshore or into and Plants. A species may be were related to the periods of largest deeper water, according to these determined to be an endangered or decline in numbers within colonies, in authors, the southern rockhopper threatened species due to one or more particular in 1948–49 and 1953–54. One penguins maintained their diet over the of the five factors described in section study colony rebounded in cooler long timescale, but were unable to find 4(a)(1) of the Act. The five factors are: temperatures in the 1960s, when enough food in the less productive (A) The present or threatened temperatures reached a minimum of marine ecosystem (Thompson and Sagar 47.5 °F (8.6 °C); however, with destruction, modification, or 2002, p. 12). temperature stabilization at higher curtailment of its habitat or range; (B) Hilton et al. (2006, pp. 611–625) levels (mean 49.5 °F (9.7 °C)) in the overutilization for commercial, expanded the study of carbon isotope 1970s, declines continued. Colony sizes ratios in southern and northern recreational, scientific, or educational have continued to decline into the rockhopper penguin feathers to most purposes; (C) disease or predation; (D) 1990s (Taylor 2000, p. 54), and breeding areas, except those at the the inadequacy of existing regulatory preliminary survey data indicate that Falkland Islands and the tip of South mechanisms; and (E) other natural or numbers at Campbell Island continue to America, to look for global trends that manmade factors affecting its continued decline (Houston 2008, p. 1). might help explain the declines existence. These factors and their Cunningham and Moors (1994, p. 34) observed at Campbell Island. They application to the NZ–AUS DPS of concluded that warmer waters most found no clear global-scale explanation southern rockhopper penguin are likely affected the diet of the Campbell for large spatial and temporal-scale discussed below. Island southern rockhopper penguins. rockhopper penguin declines. While Factor A: The Present or Threatened In the absence of data on the 1940’s diet they found general support for lower Destruction, Modification, or of Campbell Island southern rockhopper primary productivity in the ecosystems Curtailment of Its Habitat or Range penguins, the authors compared the in which rockhopper penguins feed, 1980s diet of the species at Campbell there were significant differences Terrestrial Habitat Island to southern rockhopper penguins between sites. There was evidence of a There are few reports of destruction, elsewhere. They found the Campbell shift in diet to lower trophic levels over modification, or curtailment of the Island penguins eating primarily fish— time and in warm years, but the data did terrestrial habitat of the southern southern (Micromesisteus not support the idea that the shift

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toward lower primary productivity p. 33) and just before the rapid decrease 1–2) describes the population as reflected in the diet resulted from an in numbers. possibly stable following a decrease overall trend of rising sea temperatures Without longer-term data sets during, approximately, the last 30 years. (Hilton et al. 2006, p. 620). No pertaining to fluctuations in numbers of Given these expert opinions on long- detectable relationship between carbon southern rockhopper penguins at term trends, Woehler’s uncertainty isotope ratios and annual mean sea Campbell Island and longer temperature about the current stability of the surface temperatures was found (Hilton data records at a scale appropriate to population, and a lack of evidence et al. 2006, p. 620). evaluating impacts on this particular indicating the population is currently In the absence of conclusive evidence breeding colony, it is difficult to draw stable, we rely on these expert opinions for sea surface temperature changes as conclusions on the nature or cause of to qualify the general long-term an explanation for reduced primary the marine-based threat. It is reasonable population trend on the island as productivity, Hilton et al. (2006, p. 621) to conclude, however, that the situation decreasing. In the absence of any major suggested that historical top-down at Auckland and Antipodes Islands is factors on land, given the evidence for effects in the food chain might have similar to that on Campbell Island, marine-based declines within the caused a reduction in phytoplankton given the shared location (on the Campbell Plateau portion of the DPS growth rates. Reduced grazing pressure Campbell Plateau) and similar and elsewhere in the species’ range, and resulting from the large-scale removal of population trends on these islands. given we have no information indicating predators from the subantarctic could We found no information on the a reversal or abatement of the causes of have resulted in larger standing stocks causes of the population decline on these declines, the best available of phytoplankton, which in turn could Macquarie Island, and we have not information indicates that some change have led to lowered cell growth rates identified sea temperature or other in the oceanographic ecosystem has led (which would be reflected in isotope oceanographic data on an appropriate to past declines and will likely lead to ratios), with no effect on overall scale to evaluate historical trends or future declines in the southern productivity of the system. Postulated make predictions on future trends at rockhopper penguin population on top-down effects on the ecosystem of this site. Macquarie Island is located on Macquarie Island. southern rockhopper penguins, which Macquarie Ridge, south of the Campbell occurred in the time period before the Plateau. Although oceanographic Summary of Factor A warming, first noted in the original conditions surrounding Macquarie Based on our review of the best Cunningham and Moors (1994, p. 34) Island differ from those on Campbell available information, we conclude that study, are the hunting of pinniped Plateau, air temperatures at Macquarie changes to the marine environment, populations to near extinction in the Island are reported to be rising which influence the southern 18th and 19th centuries and the (Adamson et al. 1988, p. 107), and the rockhopper penguin, have affected the subsequent severe exploitation of baleen island is reported to have experienced a NZ–AUS DPS of the species. In the whale (Balaenopteridae) populations in marked shift in its climate since 1970 absence of identification of other the 19th and 20th centuries (Hilton et al. (Adams 2009, p. 1). Therefore, it is significant threat factors and in light of 2006, p. 621). While this top-down reasonable to conclude, given the the best available scientific information theory may explain the regional shift relationships between climate and indicating that prey availability, toward reduced primary productivity, it oceanographic conditions, that the productivity, or sea temperatures are does not explain the decrease in marine environment near the island, on affecting southern rockhopper penguins abundance of food at specific penguin which breeding penguins depend for within the DPS, we find that changes to breeding and foraging areas. food, is also changing. Changes in the the marine environment are a threat to Hilton et al. (2006, p. 621) concluded marine environment, and possible shifts southern rockhopper penguins that considerably more development of in food abundance or distribution in the throughout the NZ–AUS DPS. the links between isotopic monitoring of marine environment, have been cited as Factor B: Overutilization for rockhopper penguins and the analysis of leading to historical and present-day Commercial, Recreational, Scientific, or larger-scale oceanographic data is declines on Campbell Island Educational Purposes needed to understand effects of human (Cunningham and Moors 1994, p. 32), activities on the subantarctic marine and in other areas of the species’ range Southern rockhopper penguins are ecosystem and the links between (Crawford et al. 2003, p. 496; Crawford not commercially traded. They are not rockhopper penguin demography, and Cooper 2003, p. 415; Clausen and listed under the Convention on ecology, and environment. Huin 2003, p. 394). Estimates from International Trade in Endangered Meteorologically, the events described 2006–07 indicate 32,000–43,000 Species of Wild Fauna and Flora for Campbell Island from the 1940s until breeding pairs at Macquarie Island (BLI (CITES), and we found no records of 1985, including the period of oceanic 2008, p. 2), an order of magnitude lower trade on the CITES trade database warming, occurred after a record cool than earlier categorical estimates. Given (http://www.unep-wcmc.org/citestrade). period in the New Zealand region that the earlier estimate is categorical, Tourism and other human disturbance between 1900 and 1935, the coldest quantitative data on trends on this impacts are reported to have little effect period since recordkeeping began island are not available. However, on the species (BLI 2007, p. 3). All New (Cunningham and Moors 1994, p. 35). expert opinion suggests a long-term Zealand subantarctic islands, including These historical temperature changes declining trend on the island. Gales et Campbell, Auckland, and Antipodes have been attributed to fluctuations in al. (2010, p. 93) state that there are no Islands, are nationally protected and the position of the Antarctic Polar Front reliable data on trends, but categorize inscribed as New Zealand Subantarctic caused by changes in the westerly-wind the population, based on anecdotal Islands World Heritage sites; thus, belt (Cunningham and Moors 1994, p. observations, as having decreased. human visitation of the islands is tightly 35). Photographic evidence suggests that Hilton and Otley (2010, pp. 32–33) restricted at all sites where penguins southern rockhopper penguin numbers acknowledge the lack of quantitative occur (Taylor 2000, p. 54; BLI 2007, p. may have been significantly expanding information on the population but 4; United Nations Environmental as the early 1900s cool period came to categorize the long-term population Program, World Conservation an end (Cunningham and Moors 1994, trend as decreasing. Woehler (2009, pp. Monitoring Center (UNEP WCMC)

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2008a, p. 5). Macquarie Island is also a rockhopper penguins. Some studies, Factor D: The Inadequacy of Existing World Heritage site with limited and including some on penguins, have Regulatory Mechanisms controlled visitation (UNEP WCMC shown that avian predation is higher at The majority of subantarctic islands 2008b, p. 6). the edges of bird colonies (Gilchrist are under protected status. All New We have no information indicating 1999, pp. 21–29; Emslie et al. 1995, pp. Zealand subantarctic islands, including overutilization for commercial, 317–327; Spear 1993, pp. 399–414; Campbell, Auckland, and Antipodes recreational, scientific, or educational Tenaza 1971, pp. 81–92). It has been Islands, are nationally protected and purposes is a threat to any portion of the suggested that, as a result, relative inscribed as the New Zealand NZ–AUS DPS of southern rockhopper predation rates will increase with Subantarctic Islands World Heritage penguins, nor any reason to believe that colony fragmentation and shrinkage due sites. Human visitation of the islands is levels of utilization will increase in the to the relationship between perimeter tightly restricted at all sites where future. and area, and, therefore, that the penguins occur (Taylor 2000, p. 54; BLI Factor C: Disease or Predation population trajectory of small and 2007, p. 4; UNEP WCMC 2008a, p. 5). fragmented colonies are more likely to In Australia, Macquarie Island is also a Disease be effected by avian predation (Jackson World Heritage site with limited, Information on disease in the NZ– et al. 2005; Quillfeldt 2010, p. 50). controlled visitation and with AUS DPS of southern rockhopper Given the large decline in the numbers management plans in place (UNEP penguin is limited. We found no of southern rockhopper penguins on WCMC 2008b, p. 6). information on the occurrence of islands within the DPS, it is possible Based on our review of the existing disease on Auckland, Antipodes, or that avian predators may be having an regulatory mechanisms in place for each Macquarie Islands. Investigations have increasing effect on the southern of these areas and our analysis of other ruled out disease as a significant factor rockhopper population there. However, threat factors, we find that existing in major population declines at we found no information indicating that regulatory mechanisms regarding the Campbell Island in the 1940s and 1950s. relative avian predation rates are conservation of the southern rockhopper De Lisle et al. (1990, pp. 283–285) increasing within the NZ–AUS DPS. penguin (BLI 2007, p. 4; Ellis et al. 1998, isolated avian cholera (Pasteurella We, therefore, find that predation by pp. 49, 53) are adequate throughout the multocida) from the lungs of dead native birds and mammals is not a DPS. There is no information available chicks and adults sampled during the threat to the NZ–AUS DPS. to suggest these regulatory mechanisms year of decline 1985–86 and the will change in the future. Predation by Introduced Species subsequent year 1986–87. They were Factor E: Other Natural or Manmade unable to determine whether this was a At Campbell Island in New Zealand, Factors Affecting the Continued natural infection in southern de Lisle et al. (1990, p. 283) ruled out Existence of the Species rockhopper penguins or one that had Norway rats (Rattus norvegicus), which Oil spills been introduced through the vectors of were present on the island at the time rats, domestic poultry, cats (Felis catus), of precipitous declines, as a factor in We examined the possibility that oil dogs (Canis familiaris), or livestock that those declines. Quillfeldt (2010, pp. 50– spills may impact southern rockhopper have been prevalent on the island in the 51) reports that there is little indication penguins within the NZ–AUS DPS. past. While the disease was isolated in that mice, which occur on Auckland Such spills, should they occur and not four separate colonies along the coast of and Antipodes Islands, or Norway rats, be effectively addressed, can have direct Campbell Island, and there was which occur on Macquarie Island, prey effects on marine such as evidence of very limited mortality from on rockhopper penguins. Feral cats are penguins. We are aware of only one report of an the disease, the authors concluded there present on Auckland Island, but have oil spill incident within the NZ–AUS was no evidence that mortality from this not been observed preying on chicks DPS. In December 1987, the Australian pathogen on its own may have caused there (Taylor 2000, p. 55), and Dilks Antarctic Division (AAD) resupply the decline in numbers at Campbell (1979, p. 65) found no rockhopper vessel, the Nella Dan, ran aground in Island (Cunningham and Moors 1994, p. remains in the stomachs of feral cats on Buckles Bay, while transferring fuel to 34). Assays for a variety of other Campbell Island. Although it was the Australian National Antarctic infectious avian diseases found no suggested that introduced predators may antibody responses in southern Research Expedition (ANARE) station affect breeding on Macquarie Island on the northern end of Macquarie rockhopper penguins at Campbell Island (Ellis et al. 1998, p. 49; Quillfeldt 2010, (de Lisle et al. 1990, pp. 284–285). Island. Approximately 270,000 liters p. 50), no information was provided to (71,326 gallons) of mostly light marine In summary, we have no information support this idea. Therefore, we find indicating disease is a threat in any diesel fuel were released into the sea that predation by introduced species is portion of the NZ–AUS DPS of southern (Parks and Wildlife Service (Australia) not a threat to the NZ–AUS DPS. rockhopper penguins, nor any reason to 2006, pp. 122–123). The only reported believe that levels of disease will Summary of Factor C impacts we found were to tidal and increase in the future. intertidal invertebrates in the Bay. It has We found no information indicating been noted that an offshore oil spill at Predation by Native Species disease or predation is a threat to Macquarie Island, especially on the west Several native predators, such as southern rockhopper penguins in the (windward) side of the island, could be skuas (Catharacta spp.), giant petrels NZ–AUS DPS. Therefore, based on our extremely serious given the abundance (Macronectes spp.), fur seals review of the best available information of shore-dwelling wildlife and the (Arctocephalus spp.), and sea lions we find that neither disease nor difficulties of conducting response (Otaris spp.), prey on rockhopper predation is a threat to the NZ–AUS operations in an isolated location where penguins (Quillfeldt 2010, p. 50). We DPS of southern rockhopper penguin in weather and sea conditions are usually found no information indicating any portion of its range, and no severe. Australian Antarctic Division predation by marine mammals is a information is available that suggests vessels and tourist vessels usually threat to the NZ–AUS DPS of southern this will change in the future. anchor one or more kilometers from

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shore on the leeward side of the island, We recognize that an oil spill near a whiting, a common prey species for this which reduces the likelihood of an oil breeding colony could potentially have penguin in New Zealand subantarctic spill reaching the coast, although a local effects on the NZ–AUS DPS of waters. However, no additional fishing vessel regularly operates off the southern rockhopper penguin, information was given, and we found no west side of the island (Parks and particularly at Macquarie Island, where information suggesting impacts, or Wildlife Service (Australia), pp. 122– the ability to contain a spill may be potential impacts, to southern 123). Parks and Wildlife Service limited. However, there are an estimated rockhopper penguins from competition (Australia) (2006, pp. 122–123) state 89,600–101,500 breeding pairs of with any fisheries in New Zealand or that a Macquarie Island Station Oil Spill southern rockhopper penguins spread Australian waters. Munro (2010, p. 57), Contingency Plan provides policies and among four different island groups in his assessment of fisheries procedures for dealing with nearshore within the DPS, with an estimated interactions with rockhopper penguin, oil spills in the waters of Buckles Bay, 32,000–43,000 breeding pairs on notes that fisheries within New Zealand but that it would be nearly impossible Macquarie Island. Consequently, we and Australia are well regulated. He also to contain an oil spill anywhere else. find that oil and chemical spills do not does not identify competition with The National Plan to Combat Marine Oil rise to the level of threatening the fisheries within the NZ–AUS DPS (the Spills developed by the Australian species within the DPS given: (1) The Pacific Ocean region) as a concern. Maritime Safety Authority concludes size and distribution of breeding Munro (2010, p. 57) states, however, that, in the event of a spill, little could colonies among the four island groups that effects of fishery catch on marine be done at Macquarie Island except for within the DPS; (2) subantarctic ecosystems and apex predators like attempting to clean oil off critical breeding islands within the DPS are rockhopper penguins are not known in species (Parks and Wildlife Service remote from shipping activity; (3) the any of the areas where rockhopper (Australia) 2006, pp. 122–123). frequency and severity of previous spills penguins forage. We found no information on oil spills are low; (4) New Zealand has an Summary of Fisheries effective New Zealand Marine Oil Spill within the New Zealand waters of the In our review of fisheries activities, DPS. However, New Zealand has in Response Strategy; and (5) ships visiting Macquarie Island usually anchor well we found no reports of documented place the New Zealand Marine Oil Spill fisheries interactions, or impacts from Response Strategy, which provides the off the leeward coast of the island. Therefore, we find that oil spills are not competition for prey species, between overall framework to mount a response southern rockhopper penguins and to marine oil spills that occur within a threat to the southern rockhopper penguin within the NZ–AUS DPS. commercial fisheries within the NZ– New Zealand’s area of responsibility. AUS DPS of the species. Nor did we The aim of the strategy is to minimize Furthermore, we found no information indicating that the frequency or severity find documentation of fisheries bycatch the effects of oil on the environment and of the species. While fisheries activities human safety and health. The National of oil spills in any portion of the species’ range will increase in the have the potential to compete for the Oil Spill Contingency Plan promotes a prey of southern rockhopper penguins, planned and nationally coordinated future, or that existing containment capabilities will be weakened. there is no information indicating response to any marine oil spill that is competition with fisheries is a threat to beyond the capability of a local regional Therefore, we conclude that oil pollution from oil spills is not a threat the DPS of the species. Therefore, we council or outside the region of any find that fisheries interactions with local council (Maritime New Zealand to the species in any portion of its range now or in the foreseeable future. southern rockhopper penguins are not a 2007, p. 1). Rapid containment of spills threat to species in any portion of the in remote areas and effective triage Fisheries NZ–AUS DPS, and we have no reason response under this plan have shown to believe this will change in the future. these to be effective regulatory Fishing Bycatch mechanisms for containing spills and Incidental mortality of rockhopper Summary of Factor E minimizing impacts to wildlife (New penguins by fisheries operations does On the basis of analysis of potential Zealand Wildlife Health Center 2007, p. not appear to be significant. Munro impacts from oil spills and fisheries, we 2; Taylor 2000, p. 94). For instance, (2010, p. 57) reported that rockhopper find that other natural or manmade outside the range of the NZ–AUS DPS penguins are not particularly factors are not threats to the southern of southern rockhopper penguin, the susceptible to mortality as bycatch, and rockhopper penguin in any portion of fishing Vessel Seafresh 1 sank in that bycatch monitoring systems very the NZ–AUS DPS, now or in the Hanson Bay on the east coast of rarely report mortality of rockhopper foreseeable future. Chatham Island in March 2000, and penguins. Southern rockhopper released 66 tons (60 tonnes (t)) of diesel penguins could potentially be caught in NZ–AUS DPS Finding fuel. Rapid containment of the oil at this trawl nets, but there are no records of We identified a number of potential very remote location prevented any their being caught in New Zealand stressors to this species within the NZ– wildlife casualties (New Zealand subantarctic waters by this fishing AUS DPS, including: (1) Changes in the Wildlife Health Center 2007, p. 2). The method (Taylor 2000, p. 94), nor do we marine environment, (2) human use and same source reported that in 1998, the have information suggesting they are disturbance, (3) disease and predation, fishing vessel Don Wong 529 ran caught in Australian waters by this and (4) oil spills and competition with aground at Breaksea Islets, off Stewart fishing method. fisheries. To determine whether these Island. Approximately 331 tons (300 t) stressors individually or collectively of marine diesel was spilled along with Competition With Fisheries rise to a ‘‘threat’’ level such that the smaller amounts of lubricating and The Action Plan for southern rockhopper penguin is in waste oils. With favorable weather Conservation in New Zealand (Taylor danger of extinction throughout the conditions and establishment of triage 2000, p. 94) reported that competition DPS, or likely to become so within the response, no wildlife casualties of the from fisheries may be a potential threat foreseeable future, we first considered pollution event were discovered (Taylor to southern rockhopper penguins, as whether the stressors to the species 2000, p. 94). there is a major fishery for southern blue were causing long-term, population-

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scale declines in penguin numbers, or manmade factors are also not a threat to Next, we considered whether changes were likely to do so in the future. the southern rockhopper penguin in any in the marine environment pose such a Historical numbers of southern portion of the NZ–AUS DPS. threat that the DPS is likely to become rockhopper penguins for the NZ–AUS Having determined that changes in in danger of extinction in the DPS may have been as high as 960,000 the marine environment are a threat to foreseeable future (‘‘threatened’’ under breeding pairs; they are currently the NZ/AUS DPS of southern the Act). Though it is possible the estimated at 89,600–101,500 breeding rockhopper penguin, we next magnitude of current threats may pairs. Significant historical declines determined whether changes in the increase in the future, there is no have been reported, in particular, at marine environment rises to a ‘‘threat’’ evidence that any of the stressors or Campbell Island, where a decline of 94 level such that the DPS is in danger of threats are growing in magnitude. Thus, percent was recorded between the early extinction (‘‘endangered’’ under the Act). the foreseeable future includes 1940s and 1985; at Antipodes Islands, We considered the historical data to consideration of the ongoing effects of where a decline of 94 percent was identify any relevant existing trends that current threats at comparable levels on recorded; and at Auckland Islands, might allow for reliable prediction of the viability of the DPS. where the numbers halved between the future (in the form of extrapolating It is reasonably likely that changes in 1983 and 1990. At Macquarie Island, the trends). We also considered whether the marine environment will continue which represents 32 to 48 percent of we could reliably predict any future to affect the DPS at least at current this DPS, southern rockhopper penguin events (not yet acting on the species and levels, further reducing the population numbers. Given the magnitude of numbers were recently estimated to be therefore not yet manifested in a trend) an order of magnitude lower than declines recorded in the Campbell that might affect the status of the previous categorical estimates, and Plateau region of the DPS during species. The available data support a expert opinion indicates a long-term approximately the past 65 years, lower conclusion that there is a current overall declining trend in population on this population numbers within the DPS are declining trend in population numbers island. Current quantitative data is not reasonably likely in the foreseeable throughout the DPS as a result of available to indicate whether, and to future. Lower population numbers changes in the marine environment. what extent, numbers throughout this would cause this DPS to be more While the oceanographic factors DPS continue to decline, but qualitative vulnerable to threats from changes in contributing to declines within the DPS evidence indicates that numbers the marine habitat, and more vulnerable are not clearly understood, they appear continue to decline throughout the DPS. to potential impacts from oil spills and In our five-factor analysis, we did not to relate to changes in sea surface other random or catastrophic find evidence of any significant changes temperatures or to changes in marine perturbations within the ecosystem. to the terrestrial habitat of the southern productivity at scales affecting Loss of one or more of the four breeding rockhopper penguin. Changes to the individual colonies or regions, causing concentrations, two of which number marine environment, however, are cited reductions in food availability that may less than 4,000 breeding pairs, would as factors that have led to historical or have occurred in short periods or significantly reduce the resiliency and recent large declines within the extended over periods of years. Current redundancy of populations in this DPS Campbell Plateau portion of the range, qualitative information indicates that and increase the impact of random or and it is reasonable to conclude that colonies are still in decline, although catastrophic perturbations on remaining changes in the marine environment are the rate of that decline is population numbers in the DPS. the cause of population affects at undocumented. According to the most We conclude that a reduction in range Macquarie Island. We have no reason to recent estimates, there are or number of southern rockhopper believe these changes in the marine approximately 90,000 to 100,000 penguins within the NZ/AUS DPS is environment will be ameliorated in the breeding pairs of southern rockhopper likely in the foreseeable future, and that future; therefore, we find it reasonably penguins within the DPS, distributed this reduction is likely to increase its likely that the effects on the species in over four breeding islands that are vulnerability to changes in the marine this DPS will continue at current levels located in two different oceanographic environment and random or or potentially increase. On the basis of regions (Campbell Plateau and catastrophic perturbations to the point the best available scientific and Macquarie Ridge). Because declines where the viability of the DPS would be commercial information, including appear to relate to changes in the marine in question. Therefore, on the basis of evidence of precipitous decreases of environment at scales affecting our analysis of the best available penguin numbers in this DPS, we find individual colonies or regions, and the scientific and commercial information, that the present or threatened timing of these declines appears to vary, we conclude that the southern destruction, modification, or we are unable to predict the rate of rockhopper penguin throughout the curtailment of its marine habitat or current or future declining trends at range of the NZ–AUS DPS is likely to range is a threat to the southern each of these breeding locations. become in danger of extinction in the rockhopper penguin throughout the However, the presence of four breeding foreseeable future, and thus should be NZ–AUS DPS. areas within this DPS provides a designated as a threatened species On the basis of our five-factor analysis measure of resiliency against changes in under the Act. of the best available scientific and the marine environment that may cause commercial information, we find that severe localized population declines Significant Portion of the Range overutilization for commercial, within the DPS. We conclude that the Analysis recreational, scientific, or educational current number of breeding pairs of Having determined that the NZ–AUS purposes; disease or predation; and southern rockhopper penguin within DPS of southern rockhopper penguin inadequacy of existing regulatory the NZ/AUS DPS and their distribution meets the definition of threatened mechanisms are not threats to the over four breeding locations provides throughout its range, we must next southern rockhopper penguin in any resiliency to the population against the consider whether there are any portion of the NZ–AUS DPS. On the effects of marine-based threats such that significant portions of the range of the basis of information on fisheries and oil the DPS is not currently in danger of species within the NZ–AUS DPS that spills, we find that other natural or extinction. meet the definition of endangered. The

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Act defines an endangered species as southern rockhopper penguin is not environmental impact statements, as one ‘‘in danger of extinction throughout native to the United States, critical defined under the authority of the all or a significant portion of its range,’’ habitat is not being designated for this National Environmental Policy Act of and a threatened species as one ‘‘likely species under section 4 of the Act. 1969 (42 U.S.C. 4321 et seq.), need not to become an endangered species within Section 8(a) of the Act authorizes be prepared in connection with the foreseeable future throughout all or limited financial assistance for the regulations adopted under section 4(a) a significant portion of its range.’’ For development and management of of the Act. We published a notice the purpose of this analysis, we programs that the Secretary of the outlining our reasons for this considered a portion of the southern Interior determines to be necessary or determination in the Federal Register rockhopper penguin DPS’s range to be useful for the conservation of on October 25, 1983 (48 FR 49244). significant if is important to the endangered and threatened species in conservation of the DPS because it foreign countries. Sections 8(b) and 8(c) References Cited contributes meaningfully to the of the Act authorize the Secretary to representation, resiliency, or encourage conservation programs for A complete list of the references cited redundancy of the DPS. For a foreign endangered species and to in this rule is available on the Internet contribution to be meaningful, its loss provide assistance for such programs in at http://www.regulations.gov or upon would at least have to result in a the form of personnel and the training request from the Branch of Foreign decrease in the ability to conserve the of personnel. Species, Endangered Species Program, DPS. The Act and its implementing U.S. Fish and Wildlife Service (see FOR We found that changes in the marine regulations set forth a series of general FURTHER INFORMATION CONTACT). habitat threaten the species throughout prohibitions and exceptions that apply the DPS. Although declines on the to all endangered and threatened Author Campbell Plateau have been quantified wildlife. As such, these prohibitions The authors of this rule are staff to some extent, the lack of quantitative would be applicable to the NZ–AUS members of the Branch of Foreign population trend information for DPS of the southern rockhopper Species, Endangered Species Program, Macquarie Island precludes a penguin. These prohibitions, under 50 U.S. Fish and Wildlife Service (see FOR comparison of the declines in these two CFR 17.21 and applicable to threatened FURTHER INFORMATION CONTACT). portions of the range. Further, we found species through 50 CFR 17.31, make it no information indicating that the threat illegal for any person subject to the List of Subjects in 50 CFR Part 17 posed to the NZ–AUS DPS of southern jurisdiction of the United States to rockhopper penguins by changes in the ‘‘take’’ (take includes harass, harm, Endangered and threatened species, marine habitat are of greater magnitude pursue, hunt, shoot, wound, kill, trap, Exports, Imports, Reporting and or extent in either of these portions or capture, collect, or to attempt any of recordkeeping requirements, any other portion of the range of the these) within the United States or upon Transportation. DPS. Therefore, we conclude that the the high seas, import or export, deliver, Regulation Promulgation threats to the species are essentially receive, carry, transport, or ship in uniform throughout the DPS, and no interstate or foreign commerce in the Accordingly, we amend part 17, portion of the NZ–AUS DPS is currently course of a commercial activity, or to in danger of extinction. subchapter B of chapter I, title 50 of the sell or offer for sale in interstate or Code of Federal Regulations, as set forth Available Conservation Measures foreign commerce, any threatened below: wildlife species. It also is illegal to Conservation measures provided to possess, sell, deliver, carry, transport, or species listed as endangered or PART 17—[AMENDED] ship any such wildlife that has been threatened under the Act include recognition, requirements for Federal taken in violation of the Act. Certain ■ 1. The authority citation for part 17 protection, and prohibitions against exceptions apply to agents of the continues to read as follows: certain practices. Recognition through Service and State conservation agencies. We may issue permits to carry out Authority: 16 U.S.C. 1361–1407; 16 U.S.C. listing results in public awareness, and otherwise prohibited activities 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– encourages conservation actions by involving endangered and threatened 625, 100 Stat. 3500; unless otherwise noted. Federal governments, private agencies wildlife species under certain and groups, and individuals. ■ 2. Amend § 17.11(h) by adding a new Section 7(a) of the Act, as amended, circumstances. Regulations governing permits are codified at 50 CFR 17.22 for entry for ‘‘Penguin, southern and as implemented by regulations at 50 rockhopper’’ in alphabetical order under CFR part 402, requires Federal agencies endangered species, and at 17.32 for BIRDS to the List of Endangered and to evaluate their actions within the threatened species. Threatened Wildlife as follows: United States or on the high seas with Required Determinations respect to any species that is proposed § 17.11 Endangered and threatened National Environmental Policy Act or listed as endangered or threatened, wildlife. (NEPA) and with respect to its critical habitat, * * * * * if any is being designated. However, We have determined that given that the NZ–AUS DPS of the environmental assessments and (h) * * *

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

******* BIRDS

******* Penguin, southern Eudyptes chrysocome , New Zealand-Aus- T 784 NA NA rockhopper. South Atlantic tralia distinct popu- Ocean, South Pa- lation segment, as- cific Ocean, South- sociated with the ern Indian Ocean. Campbell Plateau and Macquarie Is- land.

*******

* * * * * SUPPLEMENTARY INFORMATION: The mackerel in or from the EEZ in the Dated: February 2, 2011. fishery for coastal migratory pelagic fish southern zone may not be possessed on Rowan W. Gould, (king mackerel, Spanish mackerel, cero, board or landed from a permitted vessel cobia, little tunny, dolphin, and, in the in amounts exceeding 1,500 lb (680 kg) Acting Director, U.S. Fish and Wildlife Service. Gulf of Mexico only, bluefish) is per day. managed under the Fishery NMFS has determined that 75 percent [FR Doc. 2011–3732 Filed 2–18–11; 8:45 am] Management Plan for the Coastal of the adjusted quota for Atlantic group BILLING CODE 4310–55–P Migratory Pelagic Resources of the Gulf Spanish mackerel has been taken. of Mexico and South Atlantic (FMP). Accordingly, the 1,500-lb (680-kg) per DEPARTMENT OF COMMERCE The FMP was prepared by the Gulf of day commercial trip limit applies to Mexico and South Atlantic Fishery Spanish mackerel in or from the EEZ in National Oceanic and Atmospheric Management Councils (Councils) and is the southern zone effective 6 a.m., local Administration implemented under the authority of the time, February 22, 2011, until 12:01 Magnuson-Stevens Fishery a.m., local time, March 1, 2011, unless 50 CFR Part 622 Conservation and Management Act by changed by further notification in the regulations at 50 CFR part 622. Federal Register. [Docket No. 001005281–0369–02] Based on the Councils’ recommended Classification RIN 0648–XA220 total allowable catch and the allocation ratios in the FMP (65 FR 41015, July 3, This action responds to the best Fisheries of the Caribbean, Gulf of 2000) NMFS implemented a commercial available information recently obtained Mexico, and South Atlantic; Coastal quota of 3.87 million lb (1.76 million kg) regarding the status of the fishery. The Migratory Pelagic Resources of the for the Atlantic migratory group of Assistant Administrator for Fisheries, Gulf of Mexico and South Atlantic; Trip Spanish mackerel. Atlantic migratory NOAA, (AA), finds the need to Limit Reduction group Spanish mackerel are divided immediately implement this into a northern and southern zone for commercial trip limit reduction AGENCY: National Marine Fisheries management purposes. The southern constitutes good cause to waive the Service (NMFS), National Oceanic and zone for Atlantic migratory group requirements to provide prior notice Atmospheric Administration (NOAA), Spanish mackerel extends from and opportunity for public comment Commerce. 30°42′45.6″ N. lat., which is a line pursuant to the authority set forth in ACTION: Temporary rule; trip limit directly east from the Georgia/Florida 5 U.S.C. 553(b)(B), as such procedures reduction. boundary, to 25°20.4′N. lat., which is a would be unnecessary and contrary to line directly east from the Miami-Dade/ the public interest. Such procedures SUMMARY: NMFS reduces the Monroe County, Florida, boundary. would be unnecessary because the rule commercial trip limit of Atlantic For the southern zone, seasonally itself already has been subject to notice migratory group Spanish mackerel in or variable trip limits are based on an and comment, and all that remains is to from the exclusive economic zone (EEZ) adjusted quota of 3.62 million lb (1.64 notify the public of the trip limit in the southern zone to 1,500 lb (680 kg) million kg). The adjusted quota is reduction. per day. This trip limit reduction is calculated to allow continued harvest in Allowing prior notice and necessary to maximize the the southern zone at a set rate for the opportunity for public comment is socioeconomic benefits of the quota. remainder of the fishing year, February contrary to the public interest because DATES: Effective 6 a.m., local time, 28, 2011, in accordance with 50 CFR of the need to immediately implement February 22, 2011, until 12:01 a.m., 622.44(b)(2). Beginning December 1, the this action to protect the fishery local time, March 1, 2011, unless trip limit is unlimited on weekdays and resource because the capacity of the changed by further notification in the limited to 1,500 lb (680 kg) of Spanish commercial fleet allows for rapid Federal Register. mackerel per day on weekends. When harvest of the quota. Prior notice and FOR FURTHER INFORMATION CONTACT: 75 percent of the adjusted quota of opportunity for public comment would Susan Gerhart, telephone: 727–824– Atlantic migratory group Spanish require time and potentially result in a 5305, or e-mail: mackerel is taken until 100 percent of harvest well in excess of the established [email protected]. the adjusted quota is taken, Spanish quota.

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