Federal Register / Vol. 76, No. 35 / Tuesday, February 22, 2011 / Rules and Regulations 9681 

II. Executive Order 12866 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under Section 6(b) of the 

Executive Order 12866, Regulatory 

Planning and Review, dated September 

30, 1993. This rule is not a major rule 

under 5 U.S.C. 804. 

III. Regulatory Flexibility Act 

The Regulatory Flexibility Act does 

not apply to this rule because an initial 

regulatory flexibility analysis is only 

required for proposed or interim rules 

that require publication for public 

comment (5 U.S.C. 603) and a final 

regulatory flexibility analysis is only 

required for final rules that were 

previously published for public 

comment, and for which an initial 

regulatory flexibility analysis was 

prepared (5 U.S.C. 604). 

This final rule does not constitute a 

significant DFARS revision as defined at 

FAR 1.501–1 because this rule will not 

have a significant cost or administrative 

impact on contractors or offerors, or a 

significant effect beyond the internal 

operating procedures of the 

Government. Therefore, publication for 

public comment under 41 U.S.C. 418b is 

not required. 

IV. Paperwork Reduction Act 

The final rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Part 219 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 219 is 

amended as follows: 

PART 219—SMALL BUSINESS 

PROGRAMS 

■ 1. The authority citation for 48 CFR 

part 219 continues to read as follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

Subpart 219.10—[Removed] 

■ 2. Remove subpart 219.10. 

[FR Doc. 2011–3762 Filed 2–18–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R9–IA–2008–0069; 92210– 

0–0010 B6] 

RIN 1018–AV73 

Endangered and Threatened Wildlife 

and Plants; Determination of 

Threatened Status for the New 

Zealand-Australia Distinct Population 

Segment of the Southern Rockhopper 

Penguin 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), determine 

threatened status for the New Zealand/ 

Australia distinct population segment of 

the southern rockhopper penguin 

(Eudyptes chrysocome) under the 

Endangered Species Act of 1973, as 

amended. This final rule implements 

the Federal protections provided by the 

Act for this species. 

DATES: This rule becomes effective 

March 24, 2011. 

ADDRESSES: This final rule is available 

on the Internet at http:// 

www.regulations.gov and comments and 

materials received, as well as supporting 

documentation used in the preparation 

of this rule, will be available for public 

inspection, by appointment, during 

normal business hours at: U.S. Fish and 

Wildlife Service, 4401 N. Fairfax Drive, 

Suite 400, Arlington, VA 22203. 

FOR FURTHER INFORMATION CONTACT: 

Janine Van Norman, Branch Chief, 

Foreign Species Branch, Endangered 

Species Program, U.S. Fish and Wildlife 

Service, 4401 N. Fairfax Drive, Room 

420, Arlington, VA 22203; telephone 

703–358–2171; facsimile 703–358–1735. 

If you use a telecommunications device 

for the deaf (TDD), call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION:

Background 

The Endangered Species Act of 1973, 

as amended (Act) (16 U.S.C. 1531 et 

seq.), is a law that was passed to prevent 

extinction of species by providing 

measures to help alleviate the loss of 

species and their habitats. Before a plant 

or animal species can receive the 

protection provided by the Act, it must 

first be added to the Federal Lists of 

Endangered and Threatened Wildlife 

and Plants; section 4 of the Act and its 

implementing regulations at 50 CFR 424 

set forth the procedures for adding 

species to these lists. 

Previous Federal Actions 

On November 29, 2006, the U.S. Fish 

and Wildlife Service (Service) received 

a petition from the Center for Biological 

Diversity (CBD) to list 12 penguin 

species under the Act: emperor penguin 

(Aptenodytes forsteri), southern 

rockhopper penguin (Eudyptes 

chrysocome), northern rockhopper 

penguin (Eudyptes moseleyi), Fiordland 

crested penguin (Eudyptes 

pachyrhynchus), snares crested penguin 

(Eudyptes robustus), erect-crested 

penguin (Eudyptes sclateri), macaroni 

penguin (Eudyptes chrysolophus), royal 

penguin (Eudyptes schlegeli), whiteflippered penguin (Eudyptula minor 

albosignata), yellow-eyed penguin 

(Megadyptes antipodes), African 

penguin (Spheniscus demersus), and 

Humboldt penguin (Spheniscus 

humboldti). 

On July 11, 2007, we published in the 

Federal Register a 90-day finding (72 FR 

37695) in which we determined that the 

petition presented substantial scientific 

or commercial information indicating 

that listing 10 of the penguin species as 

endangered or threatened may be 

warranted, but determined that the 

petition did not provide substantial 

scientific or commercial information 

indicating that listing the snares crested 

penguin and the royal penguin as 

endangered or threatened may be 

warranted. 

Following the publication of our 90- 

day finding on this petition, we initiated 

a status review to determine if listing 

each of the 10 species was warranted, 

and sought information from the public 

and interested parties on the status of 

the 10 species of penguins. In addition, 

we attended the International Penguin 

Conference in Hobart, Tasmania, 

Australia, a quadrennial meeting of 

penguin scientists from September 3–7, 

2007, to gather information and to 

ensure that experts were aware of the 

status review. We also consulted with 

other agencies and range countries in an 

effort to gather the best available 

scientific and commercial information 

on these species. 

On December 3, 2007, we received a 

60-day Notice of Intent to Sue from the 

CBD. On February 27, 2008, CBD filed 

a complaint against the Department of 

the Interior for failure to make a 12- 

month finding (status determination) on 

the petition. On September 8, 2008, we 

entered into a settlement agreement 

with the CBD, in which we agreed to 

submit to the Federal Register 12-month 

findings for the 10 species of penguins, 

including the southern rockhopper 

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9682 Federal Register / Vol. 76, No. 35 / Tuesday, February 22, 2011 / Rules and Regulations 

penguin, on or before December 19, 

2008. 

On December 18, 2008, we published 

three documents: (1) A warranted 12- 

month finding and proposed rule to list 

the African penguin as endangered 

under the Act (73 FR 77332); (2) a 

warranted 12-month finding and 

proposed rule to list the yellow-eyed 

penguin, white-flippered penguin, 

Fiordland crested penguin, Humboldt 

penguin, and erect-crested penguin as 

threatened under the Act (73 FR 77303); 

and (3) a warranted 12-month finding 

and proposed rule to list a significant 

portion of the ranfge (SPR) of the New 

Zealand/Australia distinct population 

segment (DPS) of the southern 

rockhopper penguin as threatened 

under the Act, together with a notwarranted 12-month finding to list the 

remainder of the range of the southern 

rockhopper penguin, as well as any 

portion of the range for the northern 

rockhopper penguin, macaroni penguin, 

and emperor penguin (73 FR 77264). 

We finalized the actions listed in (1) 

and (2) above on September 28, 2010 (75 

FR 59645), and August 3, 2010 (75 FR 

45497), respectively. This final rule 

completes the action referred to in (3) 

above. 

The SPR we proposed for listing for 

the southern rockhopper penguin on 

December 18, 2010 (73 FR 77264), was 

the Campbell Plateau portion of the 

New Zealand/Australia (NZ–AUS) DPS. 

We implemented the Service’s peer 

review process and opened a 60-day 

comment period to solicit scientific and 

commercial information on the species 

from all interested parties following 

publication of the proposed rule. 

On March 9, 2010, CBD filed a 

complaint against the Service for failure 

to issue a final listing determination for 

seven penguin species, including the 

Campbell Plateau SPR of the NZ–AUS 

DPS of southern rockhopper penguin, 

within 12 months of the proposals to list 

the species. In a court-approved 

settlement agreement, the Service 

agreed to submit a final listing 

determination for the Campbell Plateau 

SPR of the NZ–AUS DPS of southern 

rockhopper penguin to the Federal 

Register by February 18, 2011. 

Summary of Comments and 

Recommendations 

We base this final listing 

determination on a review of the best 

scientific and commercial information 

available, including all information 

received during the public comment 

period. In the December 18, 2008, 

proposed rule (73 FR 77264), we 

requested that all interested parties 

submit information that might 

contribute to development of a final 

rule. We also contacted appropriate 

scientific experts and invited them to 

comment on the proposed listing. We 

received 6 comments on our proposed 

action: 4 from members of the public 

and 2 from peer reviewers. Two 

members of the public indicated the 

species should be listed range-wide but 

did not provide new or additional 

information to support this claim. We 

also received several comments and 

new information pertaining to species, 

or portions of the southern rockhopper 

penguin’s range, we determined in our 

2008 status review (73 FR 77264) were 

not warranted for listing. We thank the 

public and peer reviewers for this 

information and request that the public 

and peer reviewers continue to submit 

to our office (see ADDRESSES) any new 

information concerning the status of, or 

threats to, these species. New 

information will help us monitor the 

status of the species. 

We reviewed all comments we 

received from the public and peer 

reviewers for substantive issues and 

new information regarding the proposed 

listing of the Campbell Plateau SPR of 

the NZ–AUS DPS of southern 

rockhopper penguin. We address those 

comments below. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from three individuals with scientific 

expertise that included familiarity with 

the species, the geographic region in 

which the species occurs, and 

conservation biology principles. We 

received responses from two of the peer 

reviewers from whom we requested 

comments. They generally agreed that 

the description of the biology and 

habitat for the species was accurate and 

based on the best available information. 

New or additional information on the 

biology of, and threats to, the southern 

rockhopper penguin was provided and 

incorporated into this rulemaking as 

appropriate. In some cases, it has been 

indicated in the citations by ‘‘personal 

communication’’ (pers. comm.), which 

could indicate either an email or 

telephone conversation; in other cases, 

the research citation is provided. 

Peer Reviewer Comments 

(1) Comment: One peer reviewer 

found the analysis and approach used in 

the proposed rule to be appropriate and 

scientifically sound given the quality 

and patchiness of available data. 

However, this reviewer noted 

inconsistencies in the proposed rule 

related to trends on Macquarie Island. 

The reviewer noted that in the Campbell 

Plateau SPR analysis we stated 

‘‘numbers at Macquarie Island are 

reported to be stable’’, while in other 

sections of the proposed rule we 

indicated population trends on 

Macquarie Island were uncertain due to 

poor data. The reviewer also states that 

the Macquarie Island population is 

believed to have decreased from earlier 

reports of distribution and abundance, 

and that it would be more appropriate 

to describe the Macquarie Island 

population as possibly stable following 

a decrease during the past 30 or so 

years. 

Our Response: We agree with the peer 

reviewer regarding inconsistencies in 

statements in the proposed rule related 

to Macquarie Island population trends. 

The evidence does not support our 

statement in the proposed rule that 

numbers at Macquarie Island are 

reported to be stable. Rather, reports 

indicate uncertain, or declining, 

population trends on the island. We 

appreciate the reviewer’s clarification 

that numbers are believed to have 

decreased over recent decades from 

those of earlier estimates. We have made 

changes to this final rule to address the 

inconsistencies in the proposed rule and 

characterize the Macquarie Island 

population as decreasing. 

Public Comments 

(2) Comment: One commenter 

expressed concern over the listing of a 

species that occurs wholly outside the 

United States, and questioned the 

protections afforded by the Act. 

Our Response: We appreciate this 

comment and the opportunity to clarify 

the stipulations of the Act. The Act 

stipulates that we are to list any species 

determined under the Act to be 

endangered or threatened throughout all 

or a significant portion of its range. The 

Act calls for this regardless of whether 

the species occurs partially or wholly 

within or outside the United States. 

Protections for foreign species under the 

Act include, among other things, 

prohibitions on import and export into 

or from the United States, and 

prohibitions on sale or commercial 

transport in interstate or foreign 

commerce. Protections also include 

provisions for: (1) Financial assistance 

to countries in which species listed as 

endangered or threatened under the Act 

occur; (2) encouragement of foreign 

programs to provide for the 

conservation of species, including those 

listed under the Act; (3) technical 

assistance from Department of the 

Interior personnel; and (4) law 

enforcement investigations and research 

abroad as deemed necessary to carry out 

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Federal Register / Vol. 76, No. 35 / Tuesday, February 22, 2011 / Rules and Regulations 9683 

the purposes of the Act. For more 

information on this subject, see 

Available Conservation Measures, 

below. 

(3) Comment: One commenter 

asserted that the best available science 

on the taxonomic status of the southern 

rockhopper penguin indicates the 

species be classified as two subspecies, 

that we should have considered the 

southern rockhopper penguin as two 

subspecies, and that we should analyze 

population status and threats for each 

subspecies accordingly. The commenter 

further asserted that doing so may 

change our Significant Portion of the 

Range analyses and conclusions. The 

commenter also states that we failed to 

provide a justification as to why we 

accepted BirdLife International’s (BLI) 

treatment of the taxa as two species but 

not BLI’s treatment of the southern 

rockhopper species as two subspecies. 

Our Response: We accepted BLI’s 

assessment of the two genetic studies 

published in 2006, one which 

concluded that the taxa be considered 

two species (Jouventin et al. 2006), and 

one which concluded it be considered 

three species (Banks et al. 2006). BLI 

rejected Banks et al.’s (2006) conclusion 

on the basis of small sample sizes used 

in their study and limited 

morphological differences between the 

southern and eastern forms. We agreed 

with BLI’s assessment of these two 

studies, and we accepted Jouventin et 

al. (2006) as the best available science 

on the taxonomy of the complex. The 

commenter provided no new 

information on this subject, and we 

uphold our decision to accept Jouventin 

et al. (2006) as the best available science 

in this final rule. 

We agree with the commenter that 

treating the southern rockhopper 

penguin as comprising two subspecies 

may change our SPR analyses and 

conclusions. However, we do not accept 

BLI’s treatment of the southern 

rockhopper penguin as two subspecies. 

Jouventin et al. (2006), which we accept 

as the best available information, did 

not make any conclusions regarding 

further divisions or subspecies 

classification within the taxa. They 

indicate that their research does not 

allow them to make conclusions beyond 

those made, i.e. that rockhopper 

penguins consist of two species. In 

addition, the three recent genetic 

studies (discussed above) include 

samples from only two of the three 

widely separated regions (Indian Ocean, 

Pacific Ocean, and Patagonia-Atlantic 

Ocean) in which southern rockhopper 

penguins occur. None of these studies 

analyzed samples from the Pacific 

Ocean region (the NZ–AUS DPS), and, 

as a result, subspecies relationships 

within the southern rockhopper species 

are uncertain. That the species 

taxonomy remains uncertain is 

supported by the fact that a 

comprehensive investigation of 

southern rockhopper penguin taxonomy 

is a key recommendation of a recent 

international workshop tasked with 

producing a plan for rockhopper 

penguin research and conservation (BLI 

2010, p. 8). Because a complete 

taxonomy of southern rockhopper 

penguin is lacking, and because 

Jouventin et al. (2006), whom we have 

determined represents the best available 

science, were unable to make 

conclusions on subspecies 

classification, we treat the southern 

rockhopper penguin as one undivided 

species and consider our SPR analysis 

and conclusions to be appropriate. 

As discussed in this final rule, recent 

evidence presented in de Dinechin et al. 

(2009) supports the conclusions of 

Banks et al. (2006) that the rockhopper 

taxa consists of three species. Therefore, 

this new evidence could also be 

interpreted as lending support to the 

commenter’s assertion that the southern 

rockhopper penguin be considered two 

subspecies. However, as discussed 

above, BLI has yet to consider the new 

evidence provided in de Dinechin et al. 

(2009), and still considers the taxa as 

two species. Because we rely on BLI for 

expert assessment of the literature 

pertaining to the taxonomy of the 

species, and because there are current 

gaps in taxonomic research on the 

species, especially with respect to the 

NZ–AUS DPS, we continue to consider 

Jouventin et al. (2006) the best available 

science and, consequently, treat the 

rockhopper penguin as two species, and 

the southern rockhopper penguin as an 

undivided species. 

We have made changes in this final 

rule to clarify our rationale and 

justification for why we did not accept 

BLI’s treatment of the southern 

rockhopper penguin as two subspecies. 

(4) Comment: The same commenter 

stated that our analysis of Factor A (the 

Present or Threatened Destruction, 

Modification, or Curtailment of Habitat 

or Range) omits any mention or 

discussion of ocean acidification, and 

thus fails to consider the best available 

science on the threat that ocean 

acidification poses to the southern 

rockhopper penguin’s marine foraging 

habitat and prey species. 

Our Response: We acknowledge that 

the issue of ocean acidification was not 

directly addressed in the proposed rule. 

With respect to penguins, the best 

available information does not address 

how ocean acidity would impact the 

physiology of, and food web associated 

with, this penguin species. We 

acknowledge that ocean acidification 

may be a concern, but at this time, any 

conclusion would be purely speculative 

regarding how much the oceanic pH 

may change in the penguins’ habitat and 

how subsequent changes in the species’ 

environments would interact with other 

known threats. The manner in which a 

change in ocean pH may affect penguins 

is currently unpredictable. 

Summary of Changes From Proposed 

Rule 

We fully considered comments from 

the public and peer reviewers on the 

proposed rule to develop this final 

listing of the NZ–AUS DPS of the 

southern rockhopper penguin. This final 

rule incorporates changes to our 

proposed listing based on the comments 

that we received that are discussed 

above, and newly available scientific 

and commercial information. 

We made some technical corrections 

to this final rule, added clarifying 

language, and added new information 

where appropriate, based on comments 

we received and new information 

available. None of the information 

changed our determination that the 

southern rockhopper penguin within 

the Campbell Plateau region warrants 

listing as threatened. However, due to 

peer reviewer comments and newly 

available information, in this final rule 

we determine that the population on 

Macquarie Island is declining and is 

threatened by changes in the marine 

environment. We therefore determine 

that the species is threatened 

throughout the entire NZ–AUS DPS, 

and we list the entire DPS as threatened 

in this final rule. We feel that listing the 

entire DPS represents a relatively minor 

change from the proposed action. 

Although listing the entire DPS adds an 

additional range country to the affected 

area, it extends protections of the Act to 

penguins breeding on only one 

additional island in the Pacific Ocean 

region of the species’ range. 

Species Information 

Taxonomy 

Rockhopper penguins are among the 

smallest of the world’s penguins, 

averaging 20 inches (in) (52 centimeters 

(cm)) in length and 6.6 pounds (lbs) (3 

kilograms (kg)) in weight. They are the 

most widespread of the crested 

penguins (genus Eudyptes), and are so 

named because of the way they hop 

from boulder to boulder when moving 

around their rocky colonies. 

Rockhopper penguins are found on 

islands from near the Antarctic Polar 

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9684 Federal Register / Vol. 76, No. 35 / Tuesday, February 22, 2011 / Rules and Regulations 

Front to near the Subtropical 

Convergence, in the South Atlantic, 

Pacific, and Indian Oceans (Marchant 

and Higgins 1990, p. 183). 

The taxonomy of the rockhopper 

complex is contentious. Formerly 

treated as three subspecies (Marchant 

and Higgins 1990, p. 182), recent papers 

suggest that these should be treated as 

either two species (Jouventin et al. 2006, 

pp. 3,413–3,423) or three species (Banks 

et al. 2006, pp. 61–67; de Dinechin et al. 

2009, pp. 693–702). 

Jouventin et al. (2006, pp. 3,413– 

3,423), following up on recorded 

differences in breeding phenology, song 

characteristics, and head ornaments 

used as mating signals, conducted 

genetic analysis between northern 

subtropical rockhopper penguins and 

southern subantarctic rockhopper 

penguins using the Subtropical 

Convergence, a major ecological 

boundary for marine organisms, as the 

dividing line between them. Their 

results supported the separation of E. 

chrysocome into two species, the 

southern rockhopper (E. chrysocome) 

and the northern rockhopper (E. 

moseleyi). 

Banks et al. (2006, pp. 61–67) 

compared the genetic distances between 

the three rockhopper subspecies and 

compared them with such sister species 

as macaroni penguins. Banks et al. 

(2006, pp. 61–67) suggested that three 

rockhopper subspecies—southern 

rockhopper (E. chrysocome 

chrysocome), eastern rockhopper (E. 

chrysocome filholi), and northern 

rockhopper (E. chrysocome moseleyi)— 

should be split into three species. 

More recently, de Dinechin et al. 

(2009, pp. 693–702) used gene 

sequences from Jouventin et al. (2006), 

Banks et al. (2006), and new samples 

from the Falkland Islands to determine 

divergence times between populations. 

Their results suggest the rockhopper 

complex consists of three species, 

supporting the conclusions of Banks et 

al. (2006). 

Despite these three genetic studies, 

the taxonomy of rockhopper penguins 

remains uncertain due to gaps in the 

taxonomic research. For instance, the 

three genetic studies (discussed above) 

include samples from only two of the 

three widely separated regions (Indian 

Ocean, Pacific Ocean, and PatagoniaAtlantic Ocean) in which southern 

rockhopper penguins breed. None of 

these studies analyzed samples from the 

Pacific Ocean region (the NZ–AUS 

DPS). 

BLI (2007, p. 1; 2008a, p. 1) reviewed 

the two papers published in 2006 and 

made the decision to adopt, for the 

purposes of their continued compilation 

of information on the status of birds, the 

conclusion of Jouventin et al. (2006, p. 

3,419) that there are two species of 

rockhopper penguin. In doing so, they 

noted that the proposed splitting of an 

eastern rockhopper species from E. 

chrysocome had been rejected because 

of small sample sizes and weak 

morphological differentiations between 

the circumpolar populations south of 

the Subtropical Convergence (BLI 

2008a, p. 1; Banks et al. 2006, p. 67). 

Thus, BLI considered Jouventin et al. 

(2006) the best available science. BLI 

has yet to consider the new evidence 

presented in de Dinechin et al. (2009), 

and still treats the rockhopper complex 

as consisting of two species. 

We do not accept BLI’s treatment of 

the southern rockhopper species as 

consisting of two subspecies. Jouventin 

et al. (2006), on which BLI based their 

decision to treat rockhopper penguins as 

two species, do not make any 

conclusions regarding further divisions 

within these species, or subspecies 

classification. They indicate that their 

research provides evidence for 

speciation between northern and 

southern rockhopper populations, but 

explicitly refrain from making 

conclusions on the taxonomic structure 

of rockhopper penguins as a whole, 

noting that further research is needed to 

determine the definitive taxonomy of 

the genus (Jouventin et al. 2006, pp. 

3,421). In addition, existing genetic 

studies do not include analysis of 

samples from the NZ–AUS DPS, which 

comprises one of the three regions in the 

world in which southern rockhopper 

penguins breed. As a result, subspecies 

relationships within the southern 

rockhopper species are uncertain. The 

uncertainty of the species taxonomy is 

further supported by the fact that a 

comprehensive investigation of 

southern rockhopper penguin taxonomy 

was a key recommendation of a recent 

international workshop tasked with 

producing a plan for rockhopper 

penguin research and conservation (BLI 

2010, p. 8). Because a complete 

taxonomy of southern rockhopper 

penguin is lacking, and because 

Jouventin et al. (2006, pp. 3,413–3,423), 

whom we have determined represents 

the best available science, were unable 

to make conclusions on subspecies 

classification, we treat the southern 

rockhopper penguin as one undivided 

species. However, we will continue to 

evaluate the taxonomy of rockhopper 

penguins as new information becomes 

available and will reevaluate their status 

as appropriate. 

On the basis of our review, we accept 

Jouventin et al. (2006) as the best 

available science and treat the 

rockhopper penguins as two species, the 

northern rockhopper penguin (E. 

moseleyi) and the southern rockhopper 

penguin (E. chrysocome). We accept 

Jouventin et al. (2006) as the best 

available science because the 

rockhopper taxonomy is uncertain, 

because we accept BLI’s assessment of 

the literature and determination that 

Jouventin et al. (2006) represents the 

best available science on the subject, 

and because BLI has yet to consider de 

Dinechin et al. (2009). 

Life History of Southern Rockhopper 

Penguins 

In general, southern rockhopper 

penguin breeding begins in early 

October (the austral spring) when males 

arrive at the breeding site a few days 

before females. Breeding takes place as 

soon as the females arrive, and two eggs 

are laid 4 to 5 days apart in early 

November. The first egg laid is typically 

smaller than the second, 2.8 versus 3.9 

ounces (oz) (80 versus 110 grams (g)), 

and is the first to hatch. Incubation lasts 

about 33 days and is divided into three 

roughly equal shifts. During the first 10- 

day shift, both parents are in 

attendance. Then, the male leaves to 

feed while the female incubates during 

the second shift. The male returns to 

take on the third shift. He generally 

remains for the duration of incubation 

and afterward to brood the chicks while 

the female leaves to forage and returns 

to feed the chicks. Such a system of 

extended shift duration requires lengthy 

fasts for both parents, but allows them 

to forage farther afield than would be 

the case if they had a daily changeover. 

The newly hatched chicks may have to 

wait up to a week before the female 

returns with their first feed. During this 

period, chicks are able to survive on 

existing yolk reserves, after which they 

begin receiving regular feedings of 

around 5 oz (150 g) in weight. By the 

end of the 25 days of brooding, chicks 

are receiving regular feedings averaging 

around 1 lb 5 oz (600 g). By this stage 

they are able to leave the nest and group 

(cre`che) with other chicks, allowing 

both adults to forage to meet the chicks’ 

increasing demands for food (Marchant 

and Higgins 1990, p. 190). 

During the breeding season, penguins 

are susceptible to local ecosystem 

perturbations because they are 

constrained by how far they can swim 

from the terrestrial habitat in search of 

food (Davis 2001, p. 9). Therefore, a 

decrease in food availability could have 

substantial consequences on 

reproductive success. Southern 

rockhopper penguins typically rear only 

one of two chicks, although those near 

the Falkland Islands are capable of 

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Federal Register / Vol. 76, No. 35 / Tuesday, February 22, 2011 / Rules and Regulations 9685 

rearing both chicks to fledging when 

conditions are favorable (Guinard et al. 

1998, p. 226). Reported breeding success 

is highly variable, ranging from 0.23 to 

0.91 chicks per breeding pair, with the 

greatest reported success rate (0.91 

chicks per breeding pair) occurring at 

the Falkland Islands (Crawford et al. 

2008, p. 186; Hull et al. 2005, p. 714; 

Raya Ray et al. 2007, p. 829; Poisbleau 

et al. 2008, p. 930; Clausen and Putz 

2002, p. 51). Chicks fledge at around 10 

weeks of age, and adults then spend 20 

to 25 days at sea building up body fat 

reserves in preparation for their annual 

molt. The molt lasts for around 25 days, 

and the birds then abandon the breeding 

site. They spend the winter feeding at 

sea, prior to returning the following 

spring (Marchant and Higgins 1990, p. 

185). 

The southern rockhopper penguin is 

widely distributed around the Southern 

Ocean, breeding on subantarctic islands 

in the Indian, Pacific, and Atlantic 

Oceans (Shirihai 2002, p. 71; Otley and 

Thompson 2010, p. 28). Breeding 

islands are clustered in three different 

geographic regions: the Pacific Ocean 

region, which comprises the NZ–AUS 

DPS; the Patagonia region, which 

includes the Falkland Islands and 

breeding islands in the southeast Pacific 

Ocean and southwest Atlantic Ocean 

surrounding Patagonia; and the Indian 

Ocean region. Southern rockhopper 

penguin range includes island breeding 

habitat and marine foraging areas. In the 

breeding season, these marine foraging 

areas may lie within as little as 6 miles 

(mi) (10 kilometers (km)) of the colony 

(as at the Crozet Archipelago in the 

Indian Ocean), as distant as 97 mi (157 

km) (as at the Prince Edward Islands in 

the Indian Ocean), or for male 

rockhopper penguins foraging during 

the incubation stage at the Falkland 

Islands in the Southwest Atlantic, as 

much as 289 mi (466 km) away (Sagar 

et al. 2005, p. 79; Putz et al. 2003, p. 

141). Foraging ranges vary according to 

the geographic, geologic, and 

oceanographic location of the breeding 

sites and their proximity to sea floor 

features (such as the continental slope 

and its margins or the subantarctic 

slope) and oceanographic features (such 

as the polar frontal zone or the Falkland 

current) (Sagar et al. 2005, pp. 79–80). 

Winter at-sea foraging areas are less 

well-documented, but penguins from 

the Staten Island breeding colony at the 

tip of South America dispersed over a 

range of 501,800 square miles (mi2) (1.3 

million square kilometers (km2)) 

covering polar, sub-polar, and temperate 

waters in oceanic regions of the Atlantic 

and Pacific as well as shelf waters (Putz 

et al. 2006, p. 735) and traveled up to 

1,242 mi (2,000 km) from the colony. 

Distribution and Abundance in the NZ– 

AUS DPS 

The NZ–AUS DPS is comprised of the 

marine foraging area and four breeding 

islands within the Pacific Ocean region. 

These four islands are: Macquarie Island 

(in Australia waters); and Campbell, 

Auckland, and Antipodes Islands (in 

New Zealand waters) (BLI 2007, pp. 2– 

3; Woehler 1993, pp. 58–61; Gales et al. 

2010, pp. 92–93). Southern rockhopper 

penguin breeding colonies within the 

NZ–AUS DPS inhabit a unique 

ecological and geographical position in 

the range of the species. The underwater 

topography and oceanography of this 

area is unique and has been described 

in detail in the Macquarie Island 

Management Plan (Parks and Wildlife 

Service (Australia) 2006, pp. 20–22). 

The islands sit in areas of relatively 

shallow water, generally less than 3,280 

ft (1,000 m) deep. Macquarie Island is 

on the shallow Macquarie Ridge, which 

is associated with a deep trench to the 

east, and connects to the north with the 

broader Campbell Plateau, an extensive 

area of shallow water that is part of the 

continental shelf extending southeast 

from New Zealand. The New Zealand 

islands (Campbell, Auckland, and 

Antipodes) with breeding colonies of 

southern rockhopper penguins are 

located on the Campbell Plateau. This 

region and all their associated islands 

are located north of the Antarctic Polar 

Front Zone (APFZ), a distinct 

hydrographic boundary with cold, 

nutrient-rich, surface waters to the 

south and warmer, less rich, water to 

the north. In addition, the Macquarie 

Ridge and Campbell Plateau form a 

major obstruction to the Antarctic 

Circumpolar Current, which runs 

easterly at about 50° S latitude. This 

further increases the high degree of 

turbulence and current variability in the 

area and is likely to directly or 

indirectly encourage biological 

productivity (Parks and Wildlife Service 

(Australia) 2006, pp. 20–22). 

Historical numbers of southern 

rockhopper penguins in this region may 

have been as high as 960,000 breeding 

pairs, with declines recorded from the 

New Zealand islands. Currently there 

are approximately 89,600–101,500 

breeding pairs in the region, which 

represents 6 to 7 percent of the current 

estimated population of 1.4 million 

southern rockhopper penguin breeding 

pairs range-wide. 

Macquarie Island 

Order of magnitude estimates at 

Macquarie Island (Australia) reported 

100,000–300,000 pairs in the early 

1980s (Woehler 1993, p. 60; Taylor 

2000, p. 54). The 2006 Management 

Plan for the Macquarie Island Nature 

Reserve and World Heritage Area 

reported that the total number of 

southern rockhopper penguins in this 

area may be as high as 100,000 breeding 

pairs. However, estimates from 2006–07 

indicate 32,000–43,000 breeding pairs at 

Macquarie Island (BLI 2008, p. 2), an 

order of magnitude lower than the 

earlier categorical estimate. Given that 

the earlier estimate is categorical, 

quantitative data on trends on this 

island are not available. However, 

expert opinion suggests a declining 

trend on the island. Gales et al. (2010, 

p. 93) state that there are no reliable 

data on trends, but categorize the 

population, based on anecdotal 

observations, as having decreased. 

Hilton and Otley (2010, pp. 32–33) 

acknowledge the lack of quantitative 

information on the population but 

categorize the long-term population 

trend as decreasing. Woehler (2009, pp. 

1–2) describes the population as 

possibly stable following a decrease 

during, approximately, the last 30 years. 

Given these expert opinions on longterm trends, Woehler’s uncertainty 

about the current stability of the 

population, and a lack of evidence 

indicating the population is currently 

stable, we rely on these expert opinions 

to qualify the general long-term 

population trend on the island as 

decreasing. 

Campbell, Auckland, and Antipodes 

Islands 

In New Zealand territory, southern 

rockhopper penguin numbers at 

Campbell Island declined by 94 percent 

between the early 1940s and 1985 from 

approximately 800,000 breeding pairs to 

51,500 (Cunningham and Moors 1994, 

p. 32). The majority of the decline 

appears to have coincided with a period 

of warmed sea surface temperatures 

between 1946 and 1956. It is widely 

inferred that warmer waters most likely 

affected southern rockhopper penguins 

through changes in the abundance, 

availability, and distribution of their 

food supply (Cunningham and Moors 

1994, p. 34); recent research suggests 

they may have had to work harder to 

find the same food (Thompson and 

Sagar 2002, p. 11). According to 

standard photographic monitoring, 

numbers in most colonies at Campbell 

Island continued to decline from 1985 

to the mid-1990s (Taylor 2000, p. 54), 

although the extent of such declines has 

not been quantified in the literature. 

The New Zealand Department of 

Conservation (DOC) provided 

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preliminary information from a 2007 

Campbell Island survey team that ‘‘the 

population is still in decline’’ (Houston 

2008, p. 1), but quantitative analysis of 

these data has not yet been completed. 

At the Auckland Islands, a survey in 

1990 found 10 colonies produced an 

estimate of 2,700–3,600 breeding pairs 

of southern rockhopper penguins 

(Cooper 1992, p. 66). This was a 

decrease from 1983, when 5,000–10,000 

pairs were counted (Taylor 2000, p. 54). 

There has been a large decline at 

Antipodes Islands from 50,000 breeding 

pairs in 1978 to 4,000 pairs in 1995 

(Tennyson et al. 2002, p. 244). There is 

no more recent data for Auckland or 

Antipodes Islands (Houston 2008, p. 1). 

Other Status Classifications 

The IUCN (International Union for 

Conservation of Nature) Red List 

classifies the entire southern 

rockhopper penguin species as 

‘Vulnerable’ due to rapid population 

declines, which ‘‘appear to have 

worsened in recent years.’’ Southern 

rockhopper penguins are listed under 

New Zealand’s Threat Classification 

System as Nationally Endangered. The 

species is not listed in Australia, which 

maintains a list of, and provides 

protections to, species under their 

Environmental Protection and 

Biodiversity Conservation Act. 

Summary of Factors Affecting the DPS 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations at 50 

CFR part 424 set forth the procedures 

for adding species to the Federal Lists 

of Endangered and Threatened Wildlife 

and Plants. A species may be 

determined to be an endangered or 

threatened species due to one or more 

of the five factors described in section 

4(a)(1) of the Act. The five factors are: 

(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; and (E) other natural or 

manmade factors affecting its continued 

existence. These factors and their 

application to the NZ–AUS DPS of 

southern rockhopper penguin are 

discussed below. 

Factor A: The Present or Threatened 

Destruction, Modification, or 

Curtailment of Its Habitat or Range 

Terrestrial Habitat 

There are few reports of destruction, 

modification, or curtailment of the 

terrestrial habitat of the southern 

rockhopper penguin. Analyses of largescale declines of southern rockhopper 

penguins have uniformly ruled out that 

impacts to the terrestrial habitat have 

been a limiting factor to the species 

(Cunningham and Moors 1994, p. 34; 

Keymer et al. 2001, pp. 159–169; 

Clausen and Huin 2003, p. 394), and we 

have no reason to believe threats to the 

terrestrial habitat will emerge in the 

future. We, therefore, find that impacts 

to terrestrial habitat are not a threat to 

the species. 

Climate-Related Changes in the Marine 

Environment 

Reports of major decreases in both 

southern and northern rockhopper 

penguin numbers have been linked to 

sea surface temperature changes and 

other apparent or assumed 

oceanographic or prey shifts in the 

vicinity of breeding colonies 

(Cunningham and Moors 1994, pp. 27– 

36; Crawford et al. 2003, pp. 487–498; 

Clausen and Huin 2003, pp. 389–402). 

Within the NZ–AUS DPS at Campbell 

Island, a 94 percent decrease in 

southern rockhopper penguin numbers 

occurred between the early 1940s and 

1985 (Cunningham and Moors 1994, p. 

32). Cunningham and Moors (1994, pp. 

27–36) compared the pattern of the 

penguin decline (from 800,000 breeding 

pairs in the early 1940s to 51,500 pairs 

in 1985) to patterns of sea surface 

temperature change. The authors 

concluded that drastic southern 

rockhopper penguin declines were 

related to increased sea surface 

temperature changes at Campbell Island. 

They found that peaks in temperature 

were related to the periods of largest 

decline in numbers within colonies, in 

particular in 1948–49 and 1953–54. One 

study colony rebounded in cooler 

temperatures in the 1960s, when 

temperatures reached a minimum of 

47.5 °F (8.6 °C); however, with 

temperature stabilization at higher 

levels (mean 49.5 °F (9.7 °C)) in the 

1970s, declines continued. Colony sizes 

have continued to decline into the 

1990s (Taylor 2000, p. 54), and 

preliminary survey data indicate that 

numbers at Campbell Island continue to 

decline (Houston 2008, p. 1). 

Cunningham and Moors (1994, p. 34) 

concluded that warmer waters most 

likely affected the diet of the Campbell 

Island southern rockhopper penguins. 

In the absence of data on the 1940’s diet 

of Campbell Island southern rockhopper 

penguins, the authors compared the 

1980s diet of the species at Campbell 

Island to southern rockhopper penguins 

elsewhere. They found the Campbell 

Island penguins eating primarily fish— 

southern blue whiting (Micromesisteus 

australis), dwarf codling (Austrophycis 

marginata), and southern hake 

(Merluccius australis)—while elsewhere 

southern rockhopper penguins were 

reported to eat mainly euphausiid 

crustaceans (krill) and smaller amounts 

of fish and squid. Based on this 

comparison of different areas, the 

authors concluded that euphausiids left 

the Campbell Island area when 

temperatures changed, forcing the 

southern rockhopper penguins to adopt 

an apparently atypical, and presumably 

less nutritious, fish diet. The authors 

concluded that this led to lower 

departure weights of chicks and 

contributed to adult declines 

(Cunningham and Moors 1994, p. 34). 

Subsequent research, however, has 

not supported the theory that southern 

rockhopper penguins at Campbell Island 

switched prey as their ‘‘normal’’ 

euphausiid prey moved to cooler waters 

(Cunningham and Moors 1994, pp. 34– 

35). This hypothesis has been tested 

through stable isotope studies, which 

can be used to extract historical dietary 

information from bird tissues (e.g., 

feathers). In analyses of samples from 

the late 1800s to the present at Campbell 

Islands and Antipodes Islands, 

Thompson and Sagar (2002, p. 11) 

found no evidence of a shift in southern 

rockhopper penguin diet during the 

period of decline. They concluded that 

southern rockhopper penguins did not 

switch to a less suitable prey, but that 

overall marine productivity and the 

carrying capacity of the marine 

ecosystem declined beginning in the 

1940s. With food abundance declining 

or food moving farther offshore or into 

deeper water, according to these 

authors, the southern rockhopper 

penguins maintained their diet over the 

long timescale, but were unable to find 

enough food in the less productive 

marine ecosystem (Thompson and Sagar 

2002, p. 12). 

Hilton et al. (2006, pp. 611–625) 

expanded the study of carbon isotope 

ratios in southern and northern 

rockhopper penguin feathers to most 

breeding areas, except those at the 

Falkland Islands and the tip of South 

America, to look for global trends that 

might help explain the declines 

observed at Campbell Island. They 

found no clear global-scale explanation 

for large spatial and temporal-scale 

rockhopper penguin declines. While 

they found general support for lower 

primary productivity in the ecosystems 

in which rockhopper penguins feed, 

there were significant differences 

between sites. There was evidence of a 

shift in diet to lower trophic levels over 

time and in warm years, but the data did 

not support the idea that the shift 

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toward lower primary productivity 

reflected in the diet resulted from an 

overall trend of rising sea temperatures 

(Hilton et al. 2006, p. 620). No 

detectable relationship between carbon 

isotope ratios and annual mean sea 

surface temperatures was found (Hilton 

et al. 2006, p. 620). 

In the absence of conclusive evidence 

for sea surface temperature changes as 

an explanation for reduced primary 

productivity, Hilton et al. (2006, p. 621) 

suggested that historical top-down 

effects in the food chain might have 

caused a reduction in phytoplankton 

growth rates. Reduced grazing pressure 

resulting from the large-scale removal of 

predators from the subantarctic could 

have resulted in larger standing stocks 

of phytoplankton, which in turn could 

have led to lowered cell growth rates 

(which would be reflected in isotope 

ratios), with no effect on overall 

productivity of the system. Postulated 

top-down effects on the ecosystem of 

southern rockhopper penguins, which 

occurred in the time period before the 

warming, first noted in the original 

Cunningham and Moors (1994, p. 34) 

study, are the hunting of pinniped 

populations to near extinction in the 

18th and 19th centuries and the 

subsequent severe exploitation of baleen 

whale (Balaenopteridae) populations in 

the 19th and 20th centuries (Hilton et al. 

2006, p. 621). While this top-down 

theory may explain the regional shift 

toward reduced primary productivity, it 

does not explain the decrease in 

abundance of food at specific penguin 

breeding and foraging areas. 

Hilton et al. (2006, p. 621) concluded 

that considerably more development of 

the links between isotopic monitoring of 

rockhopper penguins and the analysis of 

larger-scale oceanographic data is 

needed to understand effects of human 

activities on the subantarctic marine 

ecosystem and the links between 

rockhopper penguin demography, 

ecology, and environment. 

Meteorologically, the events described 

for Campbell Island from the 1940s until 

1985, including the period of oceanic 

warming, occurred after a record cool 

period in the New Zealand region 

between 1900 and 1935, the coldest 

period since recordkeeping began 

(Cunningham and Moors 1994, p. 35). 

These historical temperature changes 

have been attributed to fluctuations in 

the position of the Antarctic Polar Front 

caused by changes in the westerly-wind 

belt (Cunningham and Moors 1994, p. 

35). Photographic evidence suggests that 

southern rockhopper penguin numbers 

may have been significantly expanding 

as the early 1900s cool period came to 

an end (Cunningham and Moors 1994, 

p. 33) and just before the rapid decrease 

in numbers. 

Without longer-term data sets 

pertaining to fluctuations in numbers of 

southern rockhopper penguins at 

Campbell Island and longer temperature 

data records at a scale appropriate to 

evaluating impacts on this particular 

breeding colony, it is difficult to draw 

conclusions on the nature or cause of 

the marine-based threat. It is reasonable 

to conclude, however, that the situation 

at Auckland and Antipodes Islands is 

similar to that on Campbell Island, 

given the shared location (on the 

Campbell Plateau) and similar 

population trends on these islands. 

We found no information on the 

causes of the population decline on 

Macquarie Island, and we have not 

identified sea temperature or other 

oceanographic data on an appropriate 

scale to evaluate historical trends or 

make predictions on future trends at 

this site. Macquarie Island is located on 

Macquarie Ridge, south of the Campbell 

Plateau. Although oceanographic 

conditions surrounding Macquarie 

Island differ from those on Campbell 

Plateau, air temperatures at Macquarie 

Island are reported to be rising 

(Adamson et al. 1988, p. 107), and the 

island is reported to have experienced a 

marked shift in its climate since 1970 

(Adams 2009, p. 1). Therefore, it is 

reasonable to conclude, given the 

relationships between climate and 

oceanographic conditions, that the 

marine environment near the island, on 

which breeding penguins depend for 

food, is also changing. Changes in the 

marine environment, and possible shifts 

in food abundance or distribution in the 

marine environment, have been cited as 

leading to historical and present-day 

declines on Campbell Island 

(Cunningham and Moors 1994, p. 32), 

and in other areas of the species’ range 

(Crawford et al. 2003, p. 496; Crawford 

and Cooper 2003, p. 415; Clausen and 

Huin 2003, p. 394). Estimates from 

2006–07 indicate 32,000–43,000 

breeding pairs at Macquarie Island (BLI 

2008, p. 2), an order of magnitude lower 

than earlier categorical estimates. Given 

that the earlier estimate is categorical, 

quantitative data on trends on this 

island are not available. However, 

expert opinion suggests a long-term 

declining trend on the island. Gales et 

al. (2010, p. 93) state that there are no 

reliable data on trends, but categorize 

the population, based on anecdotal 

observations, as having decreased. 

Hilton and Otley (2010, pp. 32–33) 

acknowledge the lack of quantitative 

information on the population but 

categorize the long-term population 

trend as decreasing. Woehler (2009, pp. 

1–2) describes the population as 

possibly stable following a decrease 

during, approximately, the last 30 years. 

Given these expert opinions on longterm trends, Woehler’s uncertainty 

about the current stability of the 

population, and a lack of evidence 

indicating the population is currently 

stable, we rely on these expert opinions 

to qualify the general long-term 

population trend on the island as 

decreasing. In the absence of any major 

factors on land, given the evidence for 

marine-based declines within the 

Campbell Plateau portion of the DPS 

and elsewhere in the species’ range, and 

given we have no information indicating 

a reversal or abatement of the causes of 

these declines, the best available 

information indicates that some change 

in the oceanographic ecosystem has led 

to past declines and will likely lead to 

future declines in the southern 

rockhopper penguin population on 

Macquarie Island. 

Summary of Factor A 

Based on our review of the best 

available information, we conclude that 

changes to the marine environment, 

which influence the southern 

rockhopper penguin, have affected the 

NZ–AUS DPS of the species. In the 

absence of identification of other 

significant threat factors and in light of 

the best available scientific information 

indicating that prey availability, 

productivity, or sea temperatures are 

affecting southern rockhopper penguins 

within the DPS, we find that changes to 

the marine environment are a threat to 

southern rockhopper penguins 

throughout the NZ–AUS DPS. 

Factor B: Overutilization for 

Commercial, Recreational, Scientific, or 

Educational Purposes 

Southern rockhopper penguins are 

not commercially traded. They are not 

listed under the Convention on 

International Trade in Endangered 

Species of Wild Fauna and Flora 

(CITES), and we found no records of 

trade on the CITES trade database 

(http://www.unep-wcmc.org/citestrade). 

Tourism and other human disturbance 

impacts are reported to have little effect 

on the species (BLI 2007, p. 3). All New 

Zealand subantarctic islands, including 

Campbell, Auckland, and Antipodes 

Islands, are nationally protected and 

inscribed as New Zealand Subantarctic 

Islands World Heritage sites; thus, 

human visitation of the islands is tightly 

restricted at all sites where penguins 

occur (Taylor 2000, p. 54; BLI 2007, p. 

4; United Nations Environmental 

Program, World Conservation 

Monitoring Center (UNEP WCMC) 

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2008a, p. 5). Macquarie Island is also a 

World Heritage site with limited and 

controlled visitation (UNEP WCMC 

2008b, p. 6). 

We have no information indicating 

overutilization for commercial, 

recreational, scientific, or educational 

purposes is a threat to any portion of the 

NZ–AUS DPS of southern rockhopper 

penguins, nor any reason to believe that 

levels of utilization will increase in the 

future. 

Factor C: Disease or Predation 

Disease 

Information on disease in the NZ– 

AUS DPS of southern rockhopper 

penguin is limited. We found no 

information on the occurrence of 

disease on Auckland, Antipodes, or 

Macquarie Islands. Investigations have 

ruled out disease as a significant factor 

in major population declines at 

Campbell Island in the 1940s and 1950s. 

De Lisle et al. (1990, pp. 283–285) 

isolated avian cholera (Pasteurella 

multocida) from the lungs of dead 

chicks and adults sampled during the 

year of decline 1985–86 and the 

subsequent year 1986–87. They were 

unable to determine whether this was a 

natural infection in southern 

rockhopper penguins or one that had 

been introduced through the vectors of 

rats, domestic poultry, cats (Felis catus), 

dogs (Canis familiaris), or livestock that 

have been prevalent on the island in the 

past. While the disease was isolated in 

four separate colonies along the coast of 

Campbell Island, and there was 

evidence of very limited mortality from 

the disease, the authors concluded there 

was no evidence that mortality from this 

pathogen on its own may have caused 

the decline in numbers at Campbell 

Island (Cunningham and Moors 1994, p. 

34). Assays for a variety of other 

infectious avian diseases found no 

antibody responses in southern 

rockhopper penguins at Campbell Island 

(de Lisle et al. 1990, pp. 284–285). 

In summary, we have no information 

indicating disease is a threat in any 

portion of the NZ–AUS DPS of southern 

rockhopper penguins, nor any reason to 

believe that levels of disease will 

increase in the future. 

Predation by Native Species 

Several native predators, such as 

skuas (Catharacta spp.), giant petrels 

(Macronectes spp.), fur seals 

(Arctocephalus spp.), and sea lions 

(Otaris spp.), prey on rockhopper 

penguins (Quillfeldt 2010, p. 50). We 

found no information indicating 

predation by marine mammals is a 

threat to the NZ–AUS DPS of southern 

rockhopper penguins. Some studies, 

including some on penguins, have 

shown that avian predation is higher at 

the edges of bird colonies (Gilchrist 

1999, pp. 21–29; Emslie et al. 1995, pp. 

317–327; Spear 1993, pp. 399–414; 

Tenaza 1971, pp. 81–92). It has been 

suggested that, as a result, relative 

predation rates will increase with 

colony fragmentation and shrinkage due 

to the relationship between perimeter 

and area, and, therefore, that the 

population trajectory of small and 

fragmented colonies are more likely to 

be effected by avian predation (Jackson 

et al. 2005; Quillfeldt 2010, p. 50). 

Given the large decline in the numbers 

of southern rockhopper penguins on 

islands within the DPS, it is possible 

that avian predators may be having an 

increasing effect on the southern 

rockhopper population there. However, 

we found no information indicating that 

relative avian predation rates are 

increasing within the NZ–AUS DPS. 

We, therefore, find that predation by 

native birds and mammals is not a 

threat to the NZ–AUS DPS. 

Predation by Introduced Species 

At Campbell Island in New Zealand, 

de Lisle et al. (1990, p. 283) ruled out 

Norway rats (Rattus norvegicus), which 

were present on the island at the time 

of precipitous declines, as a factor in 

those declines. Quillfeldt (2010, pp. 50– 

51) reports that there is little indication 

that mice, which occur on Auckland 

and Antipodes Islands, or Norway rats, 

which occur on Macquarie Island, prey 

on rockhopper penguins. Feral cats are 

present on Auckland Island, but have 

not been observed preying on chicks 

there (Taylor 2000, p. 55), and Dilks 

(1979, p. 65) found no rockhopper 

remains in the stomachs of feral cats on 

Campbell Island. Although it was 

suggested that introduced predators may 

affect breeding on Macquarie Island 

(Ellis et al. 1998, p. 49; Quillfeldt 2010, 

p. 50), no information was provided to 

support this idea. Therefore, we find 

that predation by introduced species is 

not a threat to the NZ–AUS DPS. 

Summary of Factor C 

We found no information indicating 

disease or predation is a threat to 

southern rockhopper penguins in the 

NZ–AUS DPS. Therefore, based on our 

review of the best available information 

we find that neither disease nor 

predation is a threat to the NZ–AUS 

DPS of southern rockhopper penguin in 

any portion of its range, and no 

information is available that suggests 

this will change in the future. 

Factor D: The Inadequacy of Existing 

Regulatory Mechanisms 

The majority of subantarctic islands 

are under protected status. All New 

Zealand subantarctic islands, including 

Campbell, Auckland, and Antipodes 

Islands, are nationally protected and 

inscribed as the New Zealand 

Subantarctic Islands World Heritage 

sites. Human visitation of the islands is 

tightly restricted at all sites where 

penguins occur (Taylor 2000, p. 54; BLI 

2007, p. 4; UNEP WCMC 2008a, p. 5). 

In Australia, Macquarie Island is also a 

World Heritage site with limited, 

controlled visitation and with 

management plans in place (UNEP 

WCMC 2008b, p. 6). 

Based on our review of the existing 

regulatory mechanisms in place for each 

of these areas and our analysis of other 

threat factors, we find that existing 

regulatory mechanisms regarding the 

conservation of the southern rockhopper 

penguin (BLI 2007, p. 4; Ellis et al. 1998, 

pp. 49, 53) are adequate throughout the 

DPS. There is no information available 

to suggest these regulatory mechanisms 

will change in the future. 

Factor E: Other Natural or Manmade 

Factors Affecting the Continued 

Existence of the Species 

Oil spills 

We examined the possibility that oil 

spills may impact southern rockhopper 

penguins within the NZ–AUS DPS. 

Such spills, should they occur and not 

be effectively addressed, can have direct 

effects on marine seabirds such as 

penguins. 

We are aware of only one report of an 

oil spill incident within the NZ–AUS 

DPS. In December 1987, the Australian 

Antarctic Division (AAD) resupply 

vessel, the Nella Dan, ran aground in 

Buckles Bay, while transferring fuel to 

the Australian National Antarctic 

Research Expedition (ANARE) station 

on the northern end of Macquarie 

Island. Approximately 270,000 liters 

(71,326 gallons) of mostly light marine 

diesel fuel were released into the sea 

(Parks and Wildlife Service (Australia) 

2006, pp. 122–123). The only reported 

impacts we found were to tidal and 

intertidal invertebrates in the Bay. It has 

been noted that an offshore oil spill at 

Macquarie Island, especially on the west 

(windward) side of the island, could be 

extremely serious given the abundance 

of shore-dwelling wildlife and the 

difficulties of conducting response 

operations in an isolated location where 

weather and sea conditions are usually 

severe. Australian Antarctic Division 

vessels and tourist vessels usually 

anchor one or more kilometers from 

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shore on the leeward side of the island, 

which reduces the likelihood of an oil 

spill reaching the coast, although a 

fishing vessel regularly operates off the 

west side of the island (Parks and 

Wildlife Service (Australia), pp. 122– 

123). Parks and Wildlife Service 

(Australia) (2006, pp. 122–123) state 

that a Macquarie Island Station Oil Spill 

Contingency Plan provides policies and 

procedures for dealing with nearshore 

oil spills in the waters of Buckles Bay, 

but that it would be nearly impossible 

to contain an oil spill anywhere else. 

The National Plan to Combat Marine Oil 

Spills developed by the Australian 

Maritime Safety Authority concludes 

that, in the event of a spill, little could 

be done at Macquarie Island except for 

attempting to clean oil off critical 

species (Parks and Wildlife Service 

(Australia) 2006, pp. 122–123). 

We found no information on oil spills 

within the New Zealand waters of the 

DPS. However, New Zealand has in 

place the New Zealand Marine Oil Spill 

Response Strategy, which provides the 

overall framework to mount a response 

to marine oil spills that occur within 

New Zealand’s area of responsibility. 

The aim of the strategy is to minimize 

the effects of oil on the environment and 

human safety and health. The National 

Oil Spill Contingency Plan promotes a 

planned and nationally coordinated 

response to any marine oil spill that is 

beyond the capability of a local regional 

council or outside the region of any 

local council (Maritime New Zealand 

2007, p. 1). Rapid containment of spills 

in remote areas and effective triage 

response under this plan have shown 

these to be effective regulatory 

mechanisms for containing spills and 

minimizing impacts to wildlife (New 

Zealand Wildlife Health Center 2007, p. 

2; Taylor 2000, p. 94). For instance, 

outside the range of the NZ–AUS DPS 

of southern rockhopper penguin, the 

fishing Vessel Seafresh 1 sank in 

Hanson Bay on the east coast of 

Chatham Island in March 2000, and 

released 66 tons (60 tonnes (t)) of diesel 

fuel. Rapid containment of the oil at this 

very remote location prevented any 

wildlife casualties (New Zealand 

Wildlife Health Center 2007, p. 2). The 

same source reported that in 1998, the 

fishing vessel Don Wong 529 ran 

aground at Breaksea Islets, off Stewart 

Island. Approximately 331 tons (300 t) 

of marine diesel was spilled along with 

smaller amounts of lubricating and 

waste oils. With favorable weather 

conditions and establishment of triage 

response, no wildlife casualties of the 

pollution event were discovered (Taylor 

2000, p. 94). 

We recognize that an oil spill near a 

breeding colony could potentially have 

local effects on the NZ–AUS DPS of 

southern rockhopper penguin, 

particularly at Macquarie Island, where 

the ability to contain a spill may be 

limited. However, there are an estimated 

89,600–101,500 breeding pairs of 

southern rockhopper penguins spread 

among four different island groups 

within the DPS, with an estimated 

32,000–43,000 breeding pairs on 

Macquarie Island. Consequently, we 

find that oil and chemical spills do not 

rise to the level of threatening the 

species within the DPS given: (1) The 

size and distribution of breeding 

colonies among the four island groups 

within the DPS; (2) subantarctic 

breeding islands within the DPS are 

remote from shipping activity; (3) the 

frequency and severity of previous spills 

are low; (4) New Zealand has an 

effective New Zealand Marine Oil Spill 

Response Strategy; and (5) ships visiting 

Macquarie Island usually anchor well 

off the leeward coast of the island. 

Therefore, we find that oil spills are not 

a threat to the southern rockhopper 

penguin within the NZ–AUS DPS. 

Furthermore, we found no information 

indicating that the frequency or severity 

of oil spills in any portion of the 

species’ range will increase in the 

future, or that existing containment 

capabilities will be weakened. 

Therefore, we conclude that oil 

pollution from oil spills is not a threat 

to the species in any portion of its range 

now or in the foreseeable future. 

Fisheries 

Fishing Bycatch 

Incidental mortality of rockhopper 

penguins by fisheries operations does 

not appear to be significant. Munro 

(2010, p. 57) reported that rockhopper 

penguins are not particularly 

susceptible to mortality as bycatch, and 

that bycatch monitoring systems very 

rarely report mortality of rockhopper 

penguins. Southern rockhopper 

penguins could potentially be caught in 

trawl nets, but there are no records of 

their being caught in New Zealand 

subantarctic waters by this fishing 

method (Taylor 2000, p. 94), nor do we 

have information suggesting they are 

caught in Australian waters by this 

fishing method. 

Competition With Fisheries 

The Action Plan for Seabird 

Conservation in New Zealand (Taylor 

2000, p. 94) reported that competition 

from fisheries may be a potential threat 

to southern rockhopper penguins, as 

there is a major fishery for southern blue 

whiting, a common prey species for this 

penguin in New Zealand subantarctic 

waters. However, no additional 

information was given, and we found no 

information suggesting impacts, or 

potential impacts, to southern 

rockhopper penguins from competition 

with any fisheries in New Zealand or 

Australian waters. Munro (2010, p. 57), 

in his assessment of fisheries 

interactions with rockhopper penguin, 

notes that fisheries within New Zealand 

and Australia are well regulated. He also 

does not identify competition with 

fisheries within the NZ–AUS DPS (the 

Pacific Ocean region) as a concern. 

Munro (2010, p. 57) states, however, 

that effects of fishery catch on marine 

ecosystems and apex predators like 

rockhopper penguins are not known in 

any of the areas where rockhopper 

penguins forage. 

Summary of Fisheries 

In our review of fisheries activities, 

we found no reports of documented 

fisheries interactions, or impacts from 

competition for prey species, between 

southern rockhopper penguins and 

commercial fisheries within the NZ– 

AUS DPS of the species. Nor did we 

find documentation of fisheries bycatch 

of the species. While fisheries activities 

have the potential to compete for the 

prey of southern rockhopper penguins, 

there is no information indicating 

competition with fisheries is a threat to 

the DPS of the species. Therefore, we 

find that fisheries interactions with 

southern rockhopper penguins are not a 

threat to species in any portion of the 

NZ–AUS DPS, and we have no reason 

to believe this will change in the future. 

Summary of Factor E 

On the basis of analysis of potential 

impacts from oil spills and fisheries, we 

find that other natural or manmade 

factors are not threats to the southern 

rockhopper penguin in any portion of 

the NZ–AUS DPS, now or in the 

foreseeable future. 

NZ–AUS DPS Finding 

We identified a number of potential 

stressors to this species within the NZ– 

AUS DPS, including: (1) Changes in the 

marine environment, (2) human use and 

disturbance, (3) disease and predation, 

and (4) oil spills and competition with 

fisheries. To determine whether these 

stressors individually or collectively 

rise to a ‘‘threat’’ level such that the 

southern rockhopper penguin is in 

danger of extinction throughout the 

DPS, or likely to become so within the 

foreseeable future, we first considered 

whether the stressors to the species 

were causing long-term, populationmstockstill on DSKH9S0YB1PROD with RULES

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scale declines in penguin numbers, or 

were likely to do so in the future. 

Historical numbers of southern 

rockhopper penguins for the NZ–AUS 

DPS may have been as high as 960,000 

breeding pairs; they are currently 

estimated at 89,600–101,500 breeding 

pairs. Significant historical declines 

have been reported, in particular, at 

Campbell Island, where a decline of 94 

percent was recorded between the early 

1940s and 1985; at Antipodes Islands, 

where a decline of 94 percent was 

recorded; and at Auckland Islands, 

where the numbers halved between 

1983 and 1990. At Macquarie Island, 

which represents 32 to 48 percent of 

this DPS, southern rockhopper penguin 

numbers were recently estimated to be 

an order of magnitude lower than 

previous categorical estimates, and 

expert opinion indicates a long-term 

declining trend in population on this 

island. Current quantitative data is not 

available to indicate whether, and to 

what extent, numbers throughout this 

DPS continue to decline, but qualitative 

evidence indicates that numbers 

continue to decline throughout the DPS. 

In our five-factor analysis, we did not 

find evidence of any significant changes 

to the terrestrial habitat of the southern 

rockhopper penguin. Changes to the 

marine environment, however, are cited 

as factors that have led to historical or 

recent large declines within the 

Campbell Plateau portion of the range, 

and it is reasonable to conclude that 

changes in the marine environment are 

the cause of population affects at 

Macquarie Island. We have no reason to 

believe these changes in the marine 

environment will be ameliorated in the 

future; therefore, we find it reasonably 

likely that the effects on the species in 

this DPS will continue at current levels 

or potentially increase. On the basis of 

the best available scientific and 

commercial information, including 

evidence of precipitous decreases of 

penguin numbers in this DPS, we find 

that the present or threatened 

destruction, modification, or 

curtailment of its marine habitat or 

range is a threat to the southern 

rockhopper penguin throughout the 

NZ–AUS DPS. 

On the basis of our five-factor analysis 

of the best available scientific and 

commercial information, we find that 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; disease or predation; and 

inadequacy of existing regulatory 

mechanisms are not threats to the 

southern rockhopper penguin in any 

portion of the NZ–AUS DPS. On the 

basis of information on fisheries and oil 

spills, we find that other natural or 

manmade factors are also not a threat to 

the southern rockhopper penguin in any 

portion of the NZ–AUS DPS. 

Having determined that changes in 

the marine environment are a threat to 

the NZ/AUS DPS of southern 

rockhopper penguin, we next 

determined whether changes in the 

marine environment rises to a ‘‘threat’’ 

level such that the DPS is in danger of 

extinction (‘‘endangered’’ under the Act). 

We considered the historical data to 

identify any relevant existing trends that 

might allow for reliable prediction of 

the future (in the form of extrapolating 

the trends). We also considered whether 

we could reliably predict any future 

events (not yet acting on the species and 

therefore not yet manifested in a trend) 

that might affect the status of the 

species. The available data support a 

conclusion that there is a current overall 

declining trend in population numbers 

throughout the DPS as a result of 

changes in the marine environment. 

While the oceanographic factors 

contributing to declines within the DPS 

are not clearly understood, they appear 

to relate to changes in sea surface 

temperatures or to changes in marine 

productivity at scales affecting 

individual colonies or regions, causing 

reductions in food availability that may 

have occurred in short periods or 

extended over periods of years. Current 

qualitative information indicates that 

colonies are still in decline, although 

the rate of that decline is 

undocumented. According to the most 

recent estimates, there are 

approximately 90,000 to 100,000 

breeding pairs of southern rockhopper 

penguins within the DPS, distributed 

over four breeding islands that are 

located in two different oceanographic 

regions (Campbell Plateau and 

Macquarie Ridge). Because declines 

appear to relate to changes in the marine 

environment at scales affecting 

individual colonies or regions, and the 

timing of these declines appears to vary, 

we are unable to predict the rate of 

current or future declining trends at 

each of these breeding locations. 

However, the presence of four breeding 

areas within this DPS provides a 

measure of resiliency against changes in 

the marine environment that may cause 

severe localized population declines 

within the DPS. We conclude that the 

current number of breeding pairs of 

southern rockhopper penguin within 

the NZ/AUS DPS and their distribution 

over four breeding locations provides 

resiliency to the population against the 

effects of marine-based threats such that 

the DPS is not currently in danger of 

extinction. 

Next, we considered whether changes 

in the marine environment pose such a 

threat that the DPS is likely to become 

in danger of extinction in the 

foreseeable future (‘‘threatened’’ under 

the Act). Though it is possible the 

magnitude of current threats may 

increase in the future, there is no 

evidence that any of the stressors or 

threats are growing in magnitude. Thus, 

the foreseeable future includes 

consideration of the ongoing effects of 

current threats at comparable levels on 

the viability of the DPS. 

It is reasonably likely that changes in 

the marine environment will continue 

to affect the DPS at least at current 

levels, further reducing the population 

numbers. Given the magnitude of 

declines recorded in the Campbell 

Plateau region of the DPS during 

approximately the past 65 years, lower 

population numbers within the DPS are 

reasonably likely in the foreseeable 

future. Lower population numbers 

would cause this DPS to be more 

vulnerable to threats from changes in 

the marine habitat, and more vulnerable 

to potential impacts from oil spills and 

other random or catastrophic 

perturbations within the ecosystem. 

Loss of one or more of the four breeding 

concentrations, two of which number 

less than 4,000 breeding pairs, would 

significantly reduce the resiliency and 

redundancy of populations in this DPS 

and increase the impact of random or 

catastrophic perturbations on remaining 

population numbers in the DPS. 

We conclude that a reduction in range 

or number of southern rockhopper 

penguins within the NZ/AUS DPS is 

likely in the foreseeable future, and that 

this reduction is likely to increase its 

vulnerability to changes in the marine 

environment and random or 

catastrophic perturbations to the point 

where the viability of the DPS would be 

in question. Therefore, on the basis of 

our analysis of the best available 

scientific and commercial information, 

we conclude that the southern 

rockhopper penguin throughout the 

range of the NZ–AUS DPS is likely to 

become in danger of extinction in the 

foreseeable future, and thus should be 

designated as a threatened species 

under the Act. 

Significant Portion of the Range 

Analysis 

Having determined that the NZ–AUS 

DPS of southern rockhopper penguin 

meets the definition of threatened 

throughout its range, we must next 

consider whether there are any 

significant portions of the range of the 

species within the NZ–AUS DPS that 

meet the definition of endangered. The 

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Federal Register / Vol. 76, No. 35 / Tuesday, February 22, 2011 / Rules and Regulations 9691 

Act defines an endangered species as 

one ‘‘in danger of extinction throughout 

all or a significant portion of its range,’’ 

and a threatened species as one ‘‘likely 

to become an endangered species within 

the foreseeable future throughout all or 

a significant portion of its range.’’ For 

the purpose of this analysis, we 

considered a portion of the southern 

rockhopper penguin DPS’s range to be 

significant if is important to the 

conservation of the DPS because it 

contributes meaningfully to the 

representation, resiliency, or 

redundancy of the DPS. For a 

contribution to be meaningful, its loss 

would at least have to result in a 

decrease in the ability to conserve the 

DPS. 

We found that changes in the marine 

habitat threaten the species throughout 

the DPS. Although declines on the 

Campbell Plateau have been quantified 

to some extent, the lack of quantitative 

population trend information for 

Macquarie Island precludes a 

comparison of the declines in these two 

portions of the range. Further, we found 

no information indicating that the threat 

posed to the NZ–AUS DPS of southern 

rockhopper penguins by changes in the 

marine habitat are of greater magnitude 

or extent in either of these portions or 

any other portion of the range of the 

DPS. Therefore, we conclude that the 

threats to the species are essentially 

uniform throughout the DPS, and no 

portion of the NZ–AUS DPS is currently 

in danger of extinction. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened under the Act include 

recognition, requirements for Federal 

protection, and prohibitions against 

certain practices. Recognition through 

listing results in public awareness, and 

encourages conservation actions by 

Federal governments, private agencies 

and groups, and individuals. 

Section 7(a) of the Act, as amended, 

and as implemented by regulations at 50 

CFR part 402, requires Federal agencies 

to evaluate their actions within the 

United States or on the high seas with 

respect to any species that is proposed 

or listed as endangered or threatened, 

and with respect to its critical habitat, 

if any is being designated. However, 

given that the NZ–AUS DPS of the 

southern rockhopper penguin is not 

native to the United States, critical 

habitat is not being designated for this 

species under section 4 of the Act. 

Section 8(a) of the Act authorizes 

limited financial assistance for the 

development and management of 

programs that the Secretary of the 

Interior determines to be necessary or 

useful for the conservation of 

endangered and threatened species in 

foreign countries. Sections 8(b) and 8(c) 

of the Act authorize the Secretary to 

encourage conservation programs for 

foreign endangered species and to 

provide assistance for such programs in 

the form of personnel and the training 

of personnel. 

The Act and its implementing 

regulations set forth a series of general 

prohibitions and exceptions that apply 

to all endangered and threatened 

wildlife. As such, these prohibitions 

would be applicable to the NZ–AUS 

DPS of the southern rockhopper 

penguin. These prohibitions, under 50 

CFR 17.21 and applicable to threatened 

species through 50 CFR 17.31, make it 

illegal for any person subject to the 

jurisdiction of the United States to 

‘‘take’’ (take includes harass, harm, 

pursue, hunt, shoot, wound, kill, trap, 

capture, collect, or to attempt any of 

these) within the United States or upon 

the high seas, import or export, deliver, 

receive, carry, transport, or ship in 

interstate or foreign commerce in the 

course of a commercial activity, or to 

sell or offer for sale in interstate or 

foreign commerce, any threatened 

wildlife species. It also is illegal to 

possess, sell, deliver, carry, transport, or 

ship any such wildlife that has been 

taken in violation of the Act. Certain 

exceptions apply to agents of the 

Service and State conservation agencies. 

We may issue permits to carry out 

otherwise prohibited activities 

involving endangered and threatened 

wildlife species under certain 

circumstances. Regulations governing 

permits are codified at 50 CFR 17.22 for 

endangered species, and at 17.32 for 

threatened species. 

Required Determinations 

National Environmental Policy Act 

(NEPA) 

We have determined that 

environmental assessments and 

environmental impact statements, as 

defined under the authority of the 

National Environmental Policy Act of 

1969 (42 U.S.C. 4321 et seq.), need not 

be prepared in connection with 

regulations adopted under section 4(a) 

of the Act. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). 

References Cited 

A complete list of the references cited 

in this rule is available on the Internet 

at http://www.regulations.gov or upon 

request from the Branch of Foreign 

Species, Endangered Species Program, 

U.S. Fish and Wildlife Service (see FOR

FURTHER INFORMATION CONTACT). 

Author 

The authors of this rule are staff 

members of the Branch of Foreign 

Species, Endangered Species Program, 

U.S. Fish and Wildlife Service (see FOR

FURTHER INFORMATION CONTACT). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. Amend § 17.11(h) by adding a new 

entry for ‘‘Penguin, southern 

rockhopper’’ in alphabetical order under 

BIRDS to the List of Endangered and 

Threatened Wildlife as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

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9692 Federal Register / Vol. 76, No. 35 / Tuesday, February 22, 2011 / Rules and Regulations 

Species 

Historic 

range 

Vertebrate 

population where 

endangered or threatened 

Status When 

listed 

Critical 

habitat 

Special 

rules Common name Scientific name 

*******

BIRDS

* * * * * * * 

Penguin, southern 

rockhopper.

Eudyptes chrysocome Southern Ocean, 

South Atlantic 

Ocean, South Pacific Ocean, Southern Indian Ocean.

New Zealand-Australia distinct population segment, associated with the 

Campbell Plateau 

and Macquarie Island.

T 784 NA NA 

* * * * * * * 

* * * * * 

Dated: February 2, 2011. 

Rowan W. Gould, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. 2011–3732 Filed 2–18–11; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 001005281–0369–02] 

RIN 0648–XA220 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Coastal 

Migratory Pelagic Resources of the 

Gulf of Mexico and South Atlantic; Trip 

Limit Reduction 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; trip limit 

reduction. 

SUMMARY: NMFS reduces the 

commercial trip limit of Atlantic 

migratory group Spanish mackerel in or 

from the exclusive economic zone (EEZ) 

in the southern zone to 1,500 lb (680 kg) 

per day. This trip limit reduction is 

necessary to maximize the 

socioeconomic benefits of the quota. 

DATES: Effective 6 a.m., local time, 

February 22, 2011, until 12:01 a.m., 

local time, March 1, 2011, unless 

changed by further notification in the 

Federal Register. 

FOR FURTHER INFORMATION CONTACT: 

Susan Gerhart, telephone: 727–824– 

5305, or e-mail: 

susan.gerhart@noaa.gov. 

SUPPLEMENTARY INFORMATION: The 

fishery for coastal migratory pelagic fish 

(king mackerel, Spanish mackerel, cero, 

cobia, little tunny, dolphin, and, in the 

Gulf of Mexico only, bluefish) is 

managed under the Fishery 

Management Plan for the Coastal 

Migratory Pelagic Resources of the Gulf 

of Mexico and South Atlantic (FMP). 

The FMP was prepared by the Gulf of 

Mexico and South Atlantic Fishery 

Management Councils (Councils) and is 

implemented under the authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act by 

regulations at 50 CFR part 622. 

Based on the Councils’ recommended 

total allowable catch and the allocation 

ratios in the FMP (65 FR 41015, July 3, 

2000) NMFS implemented a commercial 

quota of 3.87 million lb (1.76 million kg) 

for the Atlantic migratory group of 

Spanish mackerel. Atlantic migratory 

group Spanish mackerel are divided 

into a northern and southern zone for 

management purposes. The southern 

zone for Atlantic migratory group 

Spanish mackerel extends from 

30°42′45.6′′ N. lat., which is a line 

directly east from the Georgia/Florida 

boundary, to 25°20.4′N. lat., which is a 

line directly east from the Miami-Dade/ 

Monroe County, Florida, boundary. 

For the southern zone, seasonally 

variable trip limits are based on an 

adjusted quota of 3.62 million lb (1.64 

million kg). The adjusted quota is 

calculated to allow continued harvest in 

the southern zone at a set rate for the 

remainder of the fishing year, February 

28, 2011, in accordance with 50 CFR 

622.44(b)(2). Beginning December 1, the 

trip limit is unlimited on weekdays and 

limited to 1,500 lb (680 kg) of Spanish 

mackerel per day on weekends. When 

75 percent of the adjusted quota of 

Atlantic migratory group Spanish 

mackerel is taken until 100 percent of 

the adjusted quota is taken, Spanish 

mackerel in or from the EEZ in the 

southern zone may not be possessed on 

board or landed from a permitted vessel 

in amounts exceeding 1,500 lb (680 kg) 

per day. 

NMFS has determined that 75 percent 

of the adjusted quota for Atlantic group 

Spanish mackerel has been taken. 

Accordingly, the 1,500-lb (680-kg) per 

day commercial trip limit applies to 

Spanish mackerel in or from the EEZ in 

the southern zone effective 6 a.m., local 

time, February 22, 2011, until 12:01 

a.m., local time, March 1, 2011, unless 

changed by further notification in the 

Federal Register. 

Classification 

This action responds to the best 

available information recently obtained 

regarding the status of the fishery. The 

Assistant Administrator for Fisheries, 

NOAA, (AA), finds the need to 

immediately implement this 

commercial trip limit reduction 

constitutes good cause to waive the 

requirements to provide prior notice 

and opportunity for public comment 

pursuant to the authority set forth in 

5 U.S.C. 553(b)(B), as such procedures 

would be unnecessary and contrary to 

the public interest. Such procedures 

would be unnecessary because the rule 

itself already has been subject to notice 

and comment, and all that remains is to 

notify the public of the trip limit 

reduction. 

Allowing prior notice and 

opportunity for public comment is 

contrary to the public interest because 

of the need to immediately implement 

this action to protect the fishery 

resource because the capacity of the 

commercial fleet allows for rapid 

harvest of the quota. Prior notice and 

opportunity for public comment would 

require time and potentially result in a 

harvest well in excess of the established 

quota. 

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