[Federal Register Volume 76, Number 35 (Tuesday, February 22, 2011)]
[Rules and Regulations]
[Pages 9681-9692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3732]


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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.

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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), white-flippered 
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

[[Page 9682]]

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 not-warranted 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

[[Page 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

[[Page 9684]]

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 Patagonia-Atlantic 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 
(cr[egrave]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

[[Page 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 (mi\2\) (1.3 million 
square kilometers (km\2\)) 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[deg] 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 long-term 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

[[Page 9686]]

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 large-scale 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 [deg]F (8.6 [deg]C); however, with 
temperature stabilization at higher levels (mean 49.5 [deg]F (9.7 
[deg]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

[[Page 9687]]

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 long-term 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)

[[Page 9688]]

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

[[Page 9689]]

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, population-

[[Page 9690]]

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

[[Page 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]

0
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.


0
2. Amend Sec.  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:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 9692]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Species                                                        Vertebrate
-----------------------------------------------------------                           population where                   When      Critical     Special
                                                               Historic  range         endangered or        Status      listed      habitat      rules
            Common name                 Scientific name                                  threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
               Birds
 
                                                                      * * * * * * *
Penguin, southern rockhopper.......  Eudyptes chrysocome..  Southern Ocean, South  New Zealand-Australia          T         784          NA          NA
                                                             Atlantic Ocean,        distinct population
                                                             South Pacific Ocean,   segment, associated
                                                             Southern Indian        with the Campbell
                                                             Ocean.                 Plateau and
                                                                                    Macquarie Island.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

    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