32728 Federal Register / Vol. 75, No. 110 / Wednesday, June 9, 2010 / Proposed Rules 

rule to establish a nonessential 

experimental population (NEP) of 

Sonoran pronghorn (Antilocapra 

americana sonoriensis) in southwestern 

Arizona in the Federal Register on 

February 4, 2010 (75 FR 5732). We are 

continuing to ask for public comment 

during this reopened public comment 

period on the proposed rule and draft 

environmental assessment (EA). We 

want the final rule to be as effective as 

possible and the final EA on the 

proposed action to evaluate all potential 

issues associated with this action. We 

request information from the public, 

other concerned governmental agencies, 

Native American Tribes, the scientific 

community, industry, or any other 

interested parties relevant to the 

proposed rule and draft EA. Comments 

should be as specific as possible. If you 

submitted information previously on the 

proposed rule and draft EA, please do 

not resubmit it. This information has 

been incorporated into the public record 

and will be fully considered in the 

preparation of the final rule. We will 

consider information received from all 

interested parties. 

To issue a final rule to implement this 

proposed action and to determine 

whether to prepare a finding of no 

significant impact or an environmental 

impact statement, we will take into 

consideration all comments and any 

additional information we receive. Such 

communications may lead to a final rule 

that differs from this proposal. All 

comments, including commenters’ 

names and addresses, if provided to us, 

will become part of the supporting 

record. 

You may submit your comments and 

materials concerning the proposed rule 

and draft EA by one of the methods 

listed in the ADDRESSES section. We will 

not accept comments sent by e-mail or 

fax or to an address not listed in the 

ADDRESSES section. Finally, we will not 

consider hand-delivered comments that 

we do not receive, or mailed comments 

that are not postmarked, by the date 

specified in the DATES section. 

Comments must be submitted to 

http://www.regulations.gov before 

midnight (Eastern Time) on the date 

specified in the DATES section. 

We will post your entire comment— 

including your personal identifying 

information—on http:// 

www.regulations.gov. If your written 

comment includes your street address, 

phone number, or e-mail address, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

Comments and materials we receive, as 

well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the Cabeza Prieta National 

Wildlife Refuge (see FOR FURTHER

INFORMATION CONTACT). 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will seek 

the expert opinions of at least three 

appropriate and independent specialists 

regarding this proposed rule. The 

purpose of peer review is to ensure that 

our proposed NEP designation is based 

on scientifically sound data, 

assumptions, and analyses. We will 

invite these peer reviewers to comment 

during this public comment period on 

our specific assumptions and 

conclusions in this proposed NEP 

designation. 

Authority 

The authority for this action is section 

10(j) of the Endangered Species Act of 

1973, as amended (16 U.S.C. 1531 et 

seq.). 

Dated: May 26, 2010. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2010–13777 Filed 6–8–10; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2010–0035] 

[MO-92210-0-0008-B2] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition To List van Rossem’s Gullbilled Tern as Endangered or 

Threatened. 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of petition finding and 

initiation of status review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

90–day finding on a petition to list van 

Rossem’s gull-billed tern (Gelochelidon 

nilotica vanrossemi) as an endangered 

or threatened species under the 

Endangered Species Act of 1973, as 

amended (Act), and to designate critical 

habitat. Based on our review, we find 

the petition provides substantial 

scientific or commercial information 

indicating that listing this subspecies 

may be warranted. Therefore, with the 

publication of this notice, we are 

initiating a review of the status of the 

subspecies to determine if listing is 

warranted. To ensure that this status 

review is comprehensive, we are 

requesting scientific and commercial 

data and other information regarding 

this subspecies. Based on the status 

review, we will issue a 12–month 

finding on the petition, which will 

address whether the petitioned action is 

warranted, as provided in section 

4(b)(3)(B) of the Act. 

DATES: To allow us adequate time to 

conduct this review, we request that we 

receive information on or before August 

9, 2010. Please note that if you are using 

the Federal eRulemaking Portal (see 

ADDRESSES section, below) the deadline 

for submitting an electronic comment is 

11:59 p.m. Eastern Daylight Savings 

Time on this date. 

After August 9, 2010, you must 

submit information directly to the Field 

Office (see the FOR FURTHER INFORMATION

CONTACT section below). Please note that 

we may not be able to address or 

incorporate information that we receive 

after the above requested date. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. In the box that 

reads ‘‘Enter Keyword or ID,’’ enter the 

Docket number for this finding, which 

is FWS–R8–ES–2010–0035. Check the 

box that reads ‘‘Open for Comment/ 

Submission,’’ and then click the Search 

button. You should then see an icon that 

reads ‘‘Submit a Comment.’’ Please 

ensure that you have found the correct 

rulemaking before submitting your 

comment. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R8– 

ES–2010–0035; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all information received 

on http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Request for Information section 

below for more details). 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office, 6010 Hidden Valley 

Road, Suite 101, Carlsbad, California 

92011; by telephone at 760–431–9440; 

or by facsimile to 760–431–9624. If you 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 


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Federal Register / Vol. 75, No. 110 / Wednesday, June 9, 2010 / Proposed Rules 32729 

Request for Information 

When we make a finding that a 

petition presents substantial 

information indicating that listing a 

species may be warranted, we are 

required to promptly review the status 

of the species (status review). For the 

status review to be complete and based 

on the best available scientific and 

commercial information, we request 

information on van Rossem’s gull-billed 

tern from governmental agencies, Native 

American Tribes, the scientific 

community, industry, and any other 

interested parties. We seek information 

on: 

(1) The subspecies’ biology, range, 

and population trends, including: 

(a) Habitat requirements for feeding, 

breeding, and sheltering; 

(b) Genetics and taxonomy; 

(c) Historical and current range 

including distribution patterns; 

(d) Historical and current population 

levels, and current and projected trends; 

and 

(e) Past and ongoing conservation 

measures for the subspecies or its 

habitat or both. 

(2) The factors that are the basis for 

making a listing determination for a 

species under section 4(a) of the 

Endangered Species Act of 1973, as 

amended (Act) (16 U.S.C. 1531 et seq.), 

which 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; or 

(e) Other natural or manmade factors 

affecting its continued existence. 

(3) Information relevant to the 

taxonomic status of this or related 

subspecies of gull-billed terns 

(particularly of the gull-billed terns 

nesting in western North America), or 

whether any population segments of 

gull-billed terns are discrete or 

significant under our policy (Policy 

Regarding the Recognition of Distinct 

Vertebrate Population Segments under 

the Endangered Species Act, 61 FR 

4722; February 7, 1996). 

(4) Information regarding the 

geographic structure of van Rossem’s 

gull-billed tern populations and 

whether any portion or portions of the 

range may be considered significant, 

and why. 

(5) The potential effects of climate 

change on this species and its habitat. 

If, after the status review, we 

determine that listing the van Rossem’s 

gull-billed tern is warranted, we will 

propose critical habitat (see definition 

in section 3(5)(A) of the Act), under 

section 4 of the Act, to the maximum 

extent prudent and determinable at the 

time we propose to list the species. 

Therefore, within the geographical range 

currently occupied by van Rossem’s 

gull-billed tern, we request data and 

information on: 

(1) What may constitute ‘‘physical or 

biological features essential to the 

conservation of the species,’’ 

(2) Where these features are currently 

found, and 

(3) Whether any of these features may 

require special management 

considerations or protection. 

In addition, we request data and 

information on ‘‘specific areas outside 

the geographical area occupied by the 

species’’ that are ‘‘essential for the 

conservation of the species.’’ Please 

provide specific comments and 

information as to what, if any, critical 

habitat you think we should propose for 

designation if the species is proposed 

for listing, and why such habitat meets 

the requirements of section 4 of the Act. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Submissions merely stating support 

for or opposition to the action under 

consideration without providing 

supporting information, although noted, 

will not be considered in making a 

determination. Section 4(b)(1)(A) of the 

Act directs that determinations as to 

whether any species is an endangered or 

threatened species must be made ‘‘solely 

on the basis of the best scientific and 

commercial data available.’’ 

You may submit your information 

concerning this status review by one of 

the methods listed in the ADDRESSES

section. If you submit information via 

http://www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If you submit a 

hardcopy that includes personal 

identifying information, you may 

request at the top of your document that 

we withhold this personal identifying 

information from public review. 

However, we cannot guarantee that we 

will be able to do so. We will post all 

hardcopy submissions on http:// 

www.regulations.gov. 

Information and supporting 

documentation that we received and 

used in preparing this finding, will be 

available for you to review at http:// 

www.regulations.gov, or you may make 

an appointment during normal business 

hours at the U.S. Fish and Wildlife 

Service, Carlsbad Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Background 

Section 4(b)(3)(A) of the Act requires 

that we make a finding on whether a 

petition to list, delist, or reclassify a 

species presents substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted. 

We are to base this finding on 

information provided in the petition, 

supporting information submitted with 

the petition, and information otherwise 

available in our files. To the maximum 

extent practicable, we are to make this 

finding within 90 days of our receipt of 

the petition and publish our notice of 

the finding promptly in the Federal 

Register. 

Our standard for substantial scientific 

or commercial information within the 

Code of Federal Regulations (CFR) with 

regard to a 90–day petition finding is 

‘‘that amount of information that would 

lead a reasonable person to believe that 

the measure proposed in the petition 

may be warranted’’ (50 CFR 424.14(b)). 

If we find that substantial scientific or 

commercial information was presented, 

we are required to promptly commence 

a review the status of the species, which 

is subsequently summarized in our 12– 

month finding. 

Petition History 

On June 8, 2009, we received a 

petition from the Center for Biological 

Diversity requesting that we list the 

‘‘western’’ or ‘‘van Rossem’s’’ subspecies 

of gull-billed tern throughout its range 

as endangered or threatened under the 

Act, and that we designate critical 

habitat concurrent with listing (CBD 

2009, pp. 1–40). The petition clearly 

identified itself as such and included 

the requisite identification information 

for the petitioner, as required by 50 CFR 

424.14(a). In an August 18, 2009, letter 

to the petitioner, we responded that we 

had reviewed the information presented 

in the petition and determined that 

issuing an emergency regulation listing 

the subspecies under section 4(b)(7) of 

the Act was not warranted. This finding 

addresses the petition. 

Previous Federal Actions 

We included van Rossem’s gull-billed 

tern as a Category 2 candidate in our 

November 15, 1994, notice of candidate 

review (59 FR 58982). Category 2 taxa 

were defined as those taxa for which 

information in the possession of the 

Service, at that time, indicated that 

proposing to list as endangered or 

threatened was possibly appropriate but 

for which persuasive data on biological 


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vulnerability and threats were not 

available to support proposed rules. In 

the February 28, 1996, notice of 

candidate review (61 FR 7596), we 

announced our decision to discontinue 

recognition of Category 2 candidates, 

including van Rossem’s gull-billed tern. 

This decision was made final on 

December 5, 1996 (61 FR 64481). Since 

that time, van Rossem’s gull-billed tern 

has not been treated as a candidate for 

Federal listing under the Act. 

In 2002 and 2008, pursuant to the 

Fish and Wildlife Conservation Act of 

1980, as amended (16 U.S.C. 2901 et 

seq.), our Division of Migratory Bird 

Management included the gull-billed 

tern (the species as a whole) in the list 

of Birds of Conservation Concern 

(USFWS 2002, pp. 1–99; USFWS 2008, 

pp. 1–87). The species was included as 

a Bird of Conservation Concern both 

nationally and in certain specific Bird 

Conservation Regions, including the 

U.S. portions of Bird Conservation 

Regions 32 (Coastal California) and 33 

(Sonoran and Mojave Deserts) (USFWS 

2008, pp. 48 and 49). The gull-billed 

tern that occurs in Bird Conservation 

Regions 32 and 33 is Gelochelidon 

nilotica vanrossemi. 

Species Information 

The van Rossem’s gull-billed tern is a 

medium-sized seabird. It is one of two 

subspecies of gull-billed tern in North 

America (Molina 2008, p. 188) and six 

worldwide (Parnell et al. 1995, p. 3). 

Scientists with the U.S. Geological 

Survey are finalizing a study that may 

help identify additional information 

regarding the eastern and western North 

American subspecies; we anticipate 

looking into this further in the status 

review. Bancroft (1929, pp. 283–286) 

described Gelochelidon nilotica 

vanrossemi from specimens collected at 

the Salton Sea, Imperial County, 

California. Van Rossem’s gull-billed tern 

differs from the nominate subspecies of 

the Old World (G. n. nilotica) by its 

shorter tail and bill shape (less angular 

gonys), and from the subspecies of 

eastern North America (G. n. aranea) by 

its ‘‘decidedly larger size’’ (Bancroft 

1929, p. 284). 

Van Rossem’s gull-billed tern is 

migratory. During the spring and 

summer, it nests locally along the 

Pacific coast of Mexico including the 

Gulf of California. An additional coastal 

nest colony is located in San Diego Bay, 

San Diego County, California. Nest 

colonies are also located at inland 

localities in northeastern Baja 

California, Mexico, and at the Salton 

Sea, Imperial County, California. The 

Salton Sea and San Diego Bay are the 

only nesting areas for the subspecies in 

the United States (Molina and Erwin 

2006, p. 273). The extent of the winter 

range for the subspecies is not known 

but likely includes the Pacific coast of 

Mexico, Central America, and possibly 

northwestern South America (Molina 

and Erwin 2006, p. 272). 

Gull-billed terns, including van 

Rossem’s gull-billed terns, nest in 

colonies of 20 to 50 pairs, although 

numbers may vary (Parnell et al. 1995, 

p. 9). Nests consist of shallow scrapes 

with simple adornments (such as rocks, 

shells, fish bones) (Parnell et al. 1995, 

p. 10). Nesting habitat for van Rossem’s 

gull-billed terns consists of low, open 

areas on natural and artificial beaches, 

islands, and levees with no or sparse 

vegetation (Parnell et al. 1995, pp. 5 and 

10; Palacios and Mellink 2007, p. 215). 

At San Diego Bay and the Salton Sea, 

van Rossem’s gull-billed terns typically 

lay 2 to 3 eggs per clutch (Parnell et al. 

1995, p. 12). The egg incubation period 

is 22 to 23 days, and the young fledge 

after 28 to 35 days (Parnell et al. 1995, 

p. 11). Fledglings remain dependent 

upon their parents for at least 4 weeks 

after fledging, and probably longer 

(Parnell et al. 1995, p. 12). 

Like other terns, gull-billed terns 

(including van Rossem’s gull-billed 

tern) are predators, but they differ from 

most other tern species in how they 

forage and in the types of prey they 

consume. Unlike many other tern 

species that eat only fish caught by 

shallow dives into water, gull-billed 

terns forage on a variety of prey items 

found in different habitat types: (1) 

Gull-billed terns in flight capture flying 

insects in the air (Parnell et al. 1995, p. 

5); (2) they swoop down and snatch up 

terrestrial prey (such as crabs, lizards, 

insects, or chicks of other birds) and 

aquatic prey (such as small fish) near 

the water’s surface (Parnell et al. 1995, 

p. 5; Molina and Marschalek 2003, p. i); 

and (3) they land to pick up prey items 

(Parnell et al. 1995, p. 5). Van Rossem’s 

gull-billed tern is predominantly a 

coastal bird, but it does occur at certain 

inland sites with aquatic resources 

(Parnell et al. 1995, p. 5; Molina and 

Erwin 2006, p. 284). The foraging 

habitat of van Rossem’s gull-billed terns 

consists of ‘‘open mudflats in tidal 

estuaries, river margins, beaches, salt 

marshes, freshwater marshes, 

aquacultural impoundments (such as 

shrimp ponds), and a variety of upland 

habitats including open scrub, 

pasturelands and irrigated agricultural 

fields and associated drains,’’ and the 

airspace over such areas (Molina and 

Erwin 2006, p. 284; Parnell et al. 1995, 

pp. 4–5). 

Evaluation of Information for This 

Finding 

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

and its implementing regulations in the 

Code of Federal Regulations (CFR) at 50 

CFR 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: 

(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; or 

(E) Other natural or manmade factors 

affecting its continued existence. 

In making this 90–day finding, we 

first evaluated information presented in 

the petition and other information 

available in our files on the taxonomic 

status of the subspecies petitioned. We 

then evaluated whether information 

regarding threats to the van Rossem’s 

gull-billed tern, as presented in the 

petition and other information available 

in our files, is substantial, thereby 

indicating that the petitioned action 

may be warranted. Our evaluation of 

this information is presented below. 

The petitioner requests that the 

Service list Gelochelidon nilotica 

vanrossemi (van Rossem’s gull-billed 

tern) as endangered or threatened (CBD 

2009, p. 1). The petitioner does not 

specifically address a taxonomic or 

geographical scope at a level lower than 

subspecies or the subspecies’ entire 

range; that is, the petitioner does not 

address any potential distinct 

population segments, nor does the 

petitioner identify any portions of the 

subspecies’ range as significant. 

Therefore, we evaluated the petition as 

a petition to list the subspecies as 

endangered or threatened throughout its 

range. 

The petition states that the validity of 

the subspecies has not been questioned 

(CBD 2009, p. 4). However, information 

in the scientific literature shows that 

some authors have questioned the 

validity (distinctiveness) of van 

Rossem’s gull-billed tern. These 

include: (1) Grinnell and Miller (1944, 

p. 172), who, based on conflicting 

information available at the time, stated 

that they ‘‘do not recognize a western 

race’’ (i.e., subspecies); (2) Unitt (2004, 

p. 249), who questioned the taxon’s 

distinctiveness based on measurements 


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presented in Parnell et al. (1995, p. 3); 

and (3) Pyle (2008, p. 706), who 

considered the morphological 

differences of the western North 

American birds to be ‘‘too slight for 

subspecific recognition.’’ In contrast, 

other authors did not question the 

distinctiveness of the vanrossemi 

subspecies. For example, the American 

Ornithologists’ Union (AOU) Committee 

on Classification and Nomenclature 

(AOU Committee), the long-standing 

scientific body responsible for 

standardizing North American avian 

taxonomy, recognized the vanrossemi 

subspecies in its 1957 (fifth) edition of 

its check-list of North American birds, 

which was the last time the AOU 

Committee explicitly addressed 

subspecies (AOU 1957, p. 233). More 

recently, Patten et al. (2003, p. 188), 

who critically reviewed the taxonomy of 

subspecies presented in their book on 

the birds of the Salton Sea region 

(Patten et al. 2003, p. 71), also 

recognized the subspecies. Thus, the 

scientific literature readily available in 

our files is not consistent regarding the 

distinctiveness of van Rossem’s gullbilled tern. We will address van 

Rossem’s gull-billed tern for the 

purposes of evaluating the petitioned 

action; however, to ensure that the 

status review is comprehensive, we are 

soliciting scientific and commercial 

information regarding the 

distinctiveness and taxonomic status of 

van Rossem’s gull-billed tern especially 

compared to those gull-billed terns that 

nest and winter along the west coast of 

North America. 

A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of the Species’ Habitat or 

Range 

Information Provided in the Petition 

The petitioner asserts that van 

Rossem’s gull-billed tern is threatened 

by loss of nesting and foraging habitat 

(CBD 2009, p. 8). In the San Diego Bay 

area, the petitioner notes that nesting 

habitat used by van Rossem’s gull-billed 

tern lies predominantly within the 

boundaries of the San Diego Bay 

National Wildlife Refuge (Refuge), and 

thereby is protected from development. 

However, its foraging habitat is found 

outside the Refuge boundaries and is 

subject to impacts from recreation and 

military training activities (CBD 2009, p. 

8). The petitioner claims that tern 

nesting and foraging habitat at the 

Salton Sea is threatened by declining 

water levels because of reduction of 

inflows. The petitioner notes inflows to 

the Salton Sea have declined due to the 

reduced availability of irrigation water; 

less irrigation water is available from 

the Colorado River, and a portion of 

what water is available is being 

transferred from the Imperial Valley 

agricultural areas to the San Diego 

region for municipal use. The petitioner 

claims the amount of nesting habitat is 

reduced because the reduced inflow 

into the Salton Sea is causing former 

nesting islands to become part of the 

mainland; this allows access by land 

predators and increased wind-blown 

dust (CBD 2009, p. 9). Also, foraging 

habitat for the tern, the petitioner 

asserts, is threatened at the Salton Sea 

by degradation of water quality and a 

reduction in the amount of irrigated 

agricultural areas (CBD 2009, p. 9). The 

petitioner also asserts the effects of 

global climate change, including sealevel rise, shoreline erosion, and 

changes in vegetation, threatens the van 

Rossem’s gull-billed tern’s nesting 

habitat, foraging habitat, or both (CBD 

2009, p. 10). Finally, the petitioner 

asserts nesting and foraging habitat in 

Mexico for this subspecies is threatened 

by commercial aquaculture 

development, tourism-related 

development, development of 

evaporation ponds for commercial salt 

production (saltworks), flooding from 

beach erosion, and fluctuating water 

levels in water impoundments (CBD 

2009, pp. 9 and 10). 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

The petitioner cited several 

publications to support assertions made 

in the petition; however, the petitioner 

did not include reference information 

for some citations (such as Schwabe et 

al. 2008). We reviewed cited and 

referenced publications that were 

readily available in our files, including 

Terp and Pavelka (1999, pp. 1–23), 

Molina and Erwin (2006, pp. 271–295), 

USFWS (2006, pp. 1–1 through 8–2), 

and Palacios and Mellink (2007, pp. 

214–222). In general, we find 

substantive information suggesting that 

the assertions made by the petitioner are 

accurate. In particular, Molina and 

Erwin (2006, pp. 284–287) and Palacios 

and Mellink (2007, pp. 215–221) 

identified destruction of nesting and 

foraging habitat from coastal 

development as a threat to the 

subspecies. 

Destruction and modification of 

nesting and foraging habitat may affect 

the subspecies by reducing the amount 

of available nesting and foraging 

habitats. Such reductions in nesting 

habitat may force van Rossem’s gullbilled terns to nest in sub-optimal 

habitat subject to disturbance or other 

threats, which may subsequently affect 

the subspecies’ reproductive success 

(Molina and Erwin 2006, p. 285). Also, 

van Rossem’s gull-billed terns need 

foraging habitat close to nesting habitat 

so that adults can efficiently feed their 

young (Molina and Erwin 2006, p. 284). 

Destruction and modification of foraging 

habitat in the nesting range may further 

reduce the van Rossem’s gull-billed 

terns’ reproductive success. If 

reproductive rates are reduced enough, 

the overall population of the subspecies 

may be reduced. Additionally, the range 

of the subspecies may be curtailed by 

habitat destruction. 

The petitioner provided information, 

which is corroborated by information 

readily available in our files, that 

destruction and modification of van 

Rossem’s gull-billed tern habitat has 

occurred and is likely to continue in the 

future. Therefore, we find the petition 

and readily available information in our 

files presents substantial information 

indicating that the present or threatened 

destruction, modification, or 

curtailment of nesting or foraging 

habitat may be a significant threat to the 

van Rossem’s gull-billed tern. 

B. Overutilization for Commercial, 

Recreational, Scientific, or Educational 

Purposes 

Information Provided in the Petition 

The petitioner, citing information in 

the scientific literature (Gonzalez-Bernal 

et al. 2003, and Palacios and Mellink 

2007), asserts that van Rossem’s gullbilled terns are threatened by people 

collecting eggs, chicks, or both at certain 

nest sites in Mexico (CBD 2009, p. 12). 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

We reviewed Gonzalez-Bernal et al. 

(2003, pp. 175–177) and Palacios and 

Mellink (2007, pp. 214–222). Both 

indicate the eggs and young of colonial 

waterbirds, potentially including van 

Rossem’s gull-billed terns, have been 

utilized for commercial or subsistence 

purposes (Gonzalez-Bernal et al. 2003, 

p. 177; Palacios and Mellink 2007, pp. 

216). This use of eggs and young results 

in the death of embryos and nestlings, 

which, depending on the amount of this 

use, could significantly reduce the 

reproductive success of nesting colonial 

waterbirds. If such use affects van 

Rossem’s gull-billed terns and if 

utilization rates are high enough, the 

status of the subspecies may be affected. 

While it is unclear whether or to what 

extent this threat affects the van 

Rossem’s gull-billed tern, we find the 

petition and readily available 


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information in our files presents 

substantial information indicating that 

overutilization of van Rossem’s gullbilled tern eggs and nestlings may be a 

significant threat to the subspecies. 

C. Disease or Predation 

Information Provided in the Petition 

Disease—The petitioner notes that 

there is ‘‘little to no existing literature on 

the prevalence of disease in [van 

Rossem’s] gull-billed terns’’ (CBD 2009, 

p. 12). However, the petitioner suggests 

that West Nile virus is a possible threat 

to van Rossem’s gull-billed tern (CBD 

2009, p. 12). Additionally, the petitioner 

implies that van Rossem’s gull-billed 

tern may be susceptible to disease by 

noting that a number of other bird 

species that may be found near van 

Rossem’s gull-billed tern’s nesting and 

foraging areas in southern California 

suffered illness and mortality during a 

2004 outbreak of an unknown illness 

(although the petitioner notes that it 

may have been a result of 

contamination) (CBD 2009, p. 21). 

Predation—The petitioner asserts that 

predation is a threat to van Rossem’s 

gull-billed tern throughout its range, 

noting a number of potential and 

documented predator species (CBD 

2009, pp. 10–12). The petitioner cites 

several sources from the scientific 

literature documenting predation on the 

subspecies. 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

Disease—Diseases occur naturally in 

wildlife populations, but the occurrence 

of a disease within the range of a species 

does not necessarily mean that it is 

deleterious to that species. However, if 

one or more diseases are virulent 

enough, the status of the subspecies will 

be affected. We reviewed the petition 

and information in our files and did not 

find substantial information to indicate 

that disease may be a threat to the 

subspecies; however, we will investigate 

the potential impact of disease, 

including West Nile virus, during the 

status review for the subspecies. 

Predation—The petitioner cites 

several published and unpublished 

documents to support the assertions of 

predation as a potential threat; however, 

the petitioner did not include reference 

information for some citations (such as 

Blus and Stafford 1980, Eyler et al. 

1999, and O’Connell and Beck 2003). 

We reviewed the publications that were 

readily available in our files, including 

Parnell et al. (1995, pp. 8 and 13), 

Molina and Erwin (2006, pp. 285–286), 

and Palacios and Mellink (2007, pp. 

216–219). Based on the review of these 

sources, we found information 

suggesting that the assertions made by 

the petitioner regarding the occurrences 

of predation are generally accurate. 

Although not articulated by the 

petitioner, we note that these sources 

indicate that predation is primarily of 

eggs or young at nest sites (or ‘‘nest 

predation’’), although the petitioner also 

alluded to predation of adult terns (CBD 

2009, pp. 11–12). 

Predators kill prey for food. Nearly all 

species are subject to predation under 

natural conditions. A high level of nest 

predation at a van Rossem’s gull-billed 

tern nest colony could significantly 

reduce the reproductive success of the 

subspecies at that site. Also, high levels 

of predation on adult gull-billed tern’s 

could significantly affect the population 

of the subspecies as a whole. If 

predation rates are high enough, the 

status of the subspecies may be affected. 

We reviewed the petition and 

information in our files and did not find 

substantial information to indicate that 

predation may be a threat to the 

subspecies; however, we will further 

evaluate the potential effects of 

predation on the status of the van 

Rossem’s gull-billed tern as we conduct 

our status review. 

D. The Inadequacy of Existing 

Regulatory Mechanisms 

Information Provided in the Petition 

The petitioner identifies three existing 

Federal regulatory mechanisms in the 

United States that may provide some 

conservation benefit for van Rossem’s 

gull-billed tern. These are: (1) The 

Migratory Bird Treaty Act (16 U.S.C. 

703–712), (2) the Fish and Wildlife 

Conservation Act (16 U.S.C. 2901 et 

seq.), and (3) Executive Order 13186. 

The petitioner also identifies one 

existing State regulatory mechanism 

(the State of California’s list of Bird 

Species of Special Concern) and one 

existing regulatory mechanism in 

Mexico (the 1936 international treaty 

between the United States and Mexico 

for the protection of Migratory Birds and 

Game Mammals). The petitioner asserts 

that none of these existing regulatory 

mechanisms are adequate to conserve 

van Rossem’s gull-billed tern (CBD 

2009, pp. 22–24). To illustrate the 

asserted inadequacy, the petitioner 

includes several examples of past 

management actions under Serviceissued permits that resulted in the death 

of van Rossem’s gull-billed terns. These 

management actions were for protection 

of endangered and threatened species 

and to reduce the risk of bird airstrike 

hazards at an airport runway (CBD 2009, 

p. 22). The petitioner also notes there 

have been proposals for additional 

actions to manage gull-billed terns. 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

The petitioner cites several published 

and unpublished sources, but most of 

the references readily available in our 

files are of the regulatory mechanisms 

themselves, and few readily available 

references evaluate whether regulatory 

mechanisms to protect van Rossem’s 

gull-billed tern are adequate. However, 

we note that Molina 2008 (p. 190) 

corroborates the petitioner’s assertion 

that lethal control has been used on van 

Rossem’s gull-billed terns in response to 

a potential airstrike hazard. 

Additionally, the Service has proposed 

to manage van Rossem’s gull-billed tern 

populations that prey on other federally 

listed species on San Diego Bay 

National Wildlife Refuge, which is 

evidence that supports the petitioner’s 

assertion that such examples of 

management may continue into the 

future. 

In general, application of Factor D, 

assumes two pre-existing conditions: (1) 

One or more threats exist that are severe 

enough to affect the status of the 

species, such existing threats would fall 

under at least one of the other listing 

factors (Factors A, B, C, or E); and (2) 

one or more regulatory mechanisms 

exist that address in some way the 

aforementioned threat or threats. 

Existing regulatory mechanisms can be 

inadequate, and thus considered to be a 

‘‘threat’’ to the species under Factor D in 

two ways: (1) The regulatory mechanism 

is inherently inadequate to reduce the 

severity of the existing threat or threats 

to a point that such threats do not affect 

the status of the species; or (2) the 

regulatory mechanism is not inherently 

inadequate to address the threat or 

threats, but enforcement of that 

regulatory mechanism is lacking or 

wanting, thus making the existing 

regulatory mechanism inadequate to 

reduce the severity of the existing threat 

or threats to a point that those threats 

affect the status of the species. 

The petitioner asserts that threats 

under Factors A, B, C, and E are 

affecting the status of the species; we 

have found substantial evidence to 

support the assertions for Factors A, B 

and E (see our discussion under those 

factors). The petitioner has identified 

that regulatory mechanisms exist and 

asserts that such mechanisms are 

inadequate, either because of inherent 

flaw in the mechanism with respect to 

the threat or because of inadequate 

enforcement. As we noted above, 


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instead of providing an analysis of how 

the regulatory mechanisms are 

inadequate, the petitioner supports the 

assertions by providing examples, 

which we find are accurate, at least to 

some extent. We believe the provided 

examples are enough to lead a 

reasonable person to conclude that 

existing regulatory mechanisms may be 

inadequate. Therefore, we find the 

petition and readily available 

information in our files presents 

substantial information indicating that 

the inadequacy of existing regulatory 

mechanisms to protect the van Rossem’s 

gull-billed tern may be a significant 

threat to the subspecies. 

E. Other Natural or Manmade Factors 

Affecting the Species’ Continued 

Existence 

Information Provided in the Petition 

The petitioner, citing a variety of 

published and unpublished sources and 

supplying several examples, asserts a 

number of natural and manmade factors 

affect the continued existence of van 

Rossem’s gull-billed tern. Below, we 

summarize and group the petitioner’s 

claims into the following categories: 

•The effects of other colonial-nesting 

bird species on van Rossem’s gull-billed 

terns at nest sites, including 

competition for nesting space, 

disturbance of adults or young, or harm 

of eggs or chicks (CBD 2009, pp. 11 and 

19) of the van Rossem’s gull-billed tern. 

• Disturbance of van Rossem’s gullbilled terns at nest sites caused by the 

actions of humans, livestock, or dogs 

(CBD 2009, p. 13). 

• Intentional killing or other take (as 

defined under section 3 of the Act) of 

individual van Rossem’s gull-billed tern 

adults, young, or eggs through legal and 

illegal actions, or through specific 

management actions in the United 

States and Mexico (CBD 2009, pp. 15– 

19). 

• Deleterious effects resulting from 

exposure to pesticides, heavy metals, or 

other natural or anthropogenic 

contaminants (CBD 2009, pp. 20–21). 

• Fluctuations in food availability 

resulting from natural or anthropogenic 

changes in the environment (CBD 2009, 

p. 20). 

• Increased vulnerability to extinction 

and other effects associated with small 

population size (CBD 2009, p. 13). 

• Effects associated with natural and 

anthropogenic variations in weather and 

climate, including anticipated effects 

associated with global climate change 

and subsequent changes in sea level and 

other sources of coastal flooding (CBD 

2009, pp. 12 and 21). 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

We reviewed the information cited 

and referenced in the petition and other 

information that was readily available in 

our files. The effects of other colonialnesting bird species as a potential threat 

is supported by information in Molina 

(2004, p. 98), while disturbance by 

humans and other animals as a potential 

threat is supported by Parnell et al. 

(1995, p. 13), Molina and Erwin (2006, 

p. 285), and Palacios and Mellink (2007, 

p. 219). Intentional killing as a potential 

threat is supported by Molina and Erwin 

(2006, p. 287) and Molina (2008, p. 190). 

Contaminants as a potential threat is 

supported by Parnell et al. (1995, p. 13) 

and Molina and Erwin (2006, p. 287), 

while potential threats acting on the 

small population size is supported by 

Palacios and Mellink (2007, p. 221). 

Additionally, Parnell et al. (1995, p. 13) 

and Palacios and Mellink (2007, p. 216) 

include information on changes in 

climate, weather, and flooding as 

potential threats. Neither the petition 

nor readily available information in our 

files yielded substantial information 

indicating that the effects of fluctuations 

in food availability may be a significant 

threat to the van Rossem’s gull-billed 

tern. 

The individual threats under this 

factor are wide-ranging and may affect 

the subspecies in a number of ways. For 

example, such threats may significantly 

reduce the reproductive success of the 

van Rossem’s gull-billed tern (such as 

trampling of van Rossom’s gull-billed 

tern chicks by other waterbird species), 

result in the death of individual adults 

(such as lethal control of van Rossem’s 

gull-billed terns in an effort to protect 

other listed species), or affect 

populations (such as contaminant buildup in the food chain). Additionally, as 

cited in the petition, the San Diego 

National Wildlife Refuge proposes to 

addle up to 43 percent of the van 

Rossem’s gull-billed tern egg clutches at 

the San Diego Bay to protect listed 

species (Service 2009, p. 1). Although 

this activity has not been implemented 

by the Refuge, if such action occurs in 

the future, it would likely impact the 

population of this subspecies. If these 

threats, either individually or 

collectively, are severe enough, the 

status of the subspecies may be 

significantly affected. We have 

evaluated the petition and readily 

available information in our files and 

find substantial information indicating 

that the effects of one or more of the 

following—other colonial-nesting bird 

species, disturbance by humans and 

other animals, intentional killing, 

contaminants, threats linked to small 

population size, or potential changes in 

climate, weather, and flooding 

regimes—may significantly affect the 

status of van Rossem’s gull-billed tern. 

Finding 

On the basis of our evaluation of the 

information presented under section 

4(b)(3)(A) of the Act, we have 

determined that the petition presents 

substantial scientific or commercial 

information indicating that listing the 

van Rossem’s gull-billed tern may be 

warranted. This finding is based on 

information provided under Factor A 

(present or threatened destruction, 

modification, or curtailment of the 

subspecies’ habitat or range), Factor B 

(overutilization for commercial, 

recreational, scientific, or educational 

purposes), Factor D (the inadequacy of 

existing regulatory mechanisms), and 

Factor E (other natural or manmade 

factors affecting the subspecies’ 

continued existence). Because we have 

found that the petition presents 

substantial information indicating that 

the van Rossem’s gull-billed tern may be 

at risk of extinction now or in the 

foreseeable future and therefore listing 

under the Act may be warranted, we are 

initiating a status review to determine 

whether listing the van Rossem’s gullbilled tern under the Act is warranted. 

The ‘‘substantial information’’ 

standard for a 90–day finding differs 

from the Act’s ‘‘best scientific and 

commercial data’’ standard that applies 

to a status review to determine whether 

a petitioned action is warranted. A 90– 

day finding does not constitute a status 

review under the Act. In a 12–month 

finding, we will determine whether a 

petitioned action is warranted after we 

have completed a thorough status 

review of the species, which is 

conducted following a substantial 90– 

day finding. Because the Act’s standards 

for 90–day and 12–month findings are 

different, as described above, a 

substantial 90–day finding does not 

mean that the 12–month finding will 

result in a warranted finding. 

References Cited 

A complete list of references cited is 

available on the Internet at http:// 

www.regulations.gov and upon request 

from the Carlsbad Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Author 

The primary authors of this notice are 

staff members of the Carlsbad Fish and 

Wildlife Office (see FOR FURTHER

INFORMATION CONTACT). 


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Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: May 26, 2010 

Daniel M. Ashe, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. 2010–13779 Filed 6–8–10; 8:45 am] 

BILLING CODE 4310–55–S 


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