Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for Five Penguin Species, 45497-45527 [2010-18884]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 148 (Tuesday, August 3, 2010)]
[Rules and Regulations]
[Pages 45497-45527]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-18884]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R9-IA-2008-0118]
[MO 92210-0-0010-B6]
RIN 1018-AW40


Endangered and Threatened Wildlife and Plants; Determination of 
Threatened Status for Five Penguin Species

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 five penguins: The yellow-eyed penguin 
(Megadyptes antipodes), white-flippered penguin (Eudyptula minor 
albosignata), Fiordland crested penguin (Eudyptes pachyrhynchus), 
Humboldt penguin (Spheniscus humboldti), and erect-crested penguin 
(Eudyptes sclateri) under the Endangered Species Act of 1973, as 
amended (Act).

DATES: This rule becomes effective September 2, 2010.

ADDRESSES: This final rule is available on the Internet at https://www.regulations.gov. 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 the U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, 
Suite 420, Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT: Janine Van Norman, Chief, Branch of 
Foreign Species, Endangered Species Program, U.S. Fish and Wildlife 
Service, 4401 North 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

    On December 18, 2008, we published a proposed rule (73 FR 77303) to 
list the yellow-eyed penguin (Megadyptes antipodes), white-flippered 
penguin (Eudyptula minor albosignata), Fiordland crested penguin 
(Eudyptes pachyrhynchus), Humboldt penguin (Spheniscus humboldti), and 
erect-crested penguin (Eudyptes sclateri) under the Endangered Species 
Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.). That document 
also served as the 12-month finding on a petition to list these 
species, which are 5 of 12 penguin species included in the petition. We 
opened the public comment period on the proposed rule for 60 days, 
ending February 17, 2009, to allow all interested parties an 
opportunity to comment on the proposed rule. On March 9, 2010, the 
Center for Biological Diversity (CBD) filed a complaint (CV-10-992, 
N.D. Cal) for failure to issue a final listing determination within 12 
months of the proposal to list the species. In a court-approved 
settlement agreement, the Service agreed to submit a final rule to the 
Federal Register by July 30, 2010.

Previous Federal Action

    For a detailed history of previous Federal actions involving these 
five penguin species, please see the Service's proposed listing rule, 
which published in the Federal Register on December 18, 2008 (73 FR 
77303).

Summary of Comments and Recommendations

    In the proposed rule published on December 18, 2008 (73 FR 77303), 
we requested that all interested parties submit information that might 
contribute to development of a final rule. We also contacted 
appropriate scientific experts and organizations and invited them to 
comment on the proposed listings. We received 13 comments: 4 from 
members of the public, and 9 from peer reviewers.
    We reviewed all comments received from the public and peer 
reviewers for substantive issues and new information regarding the 
proposed listing of these five species, and we have addressed those 
comments below. Overall, the commenters and peer reviewers supported 
the proposed listings. One comment from the public included substantive 
information; other comments simply supported the proposed listing 
without providing scientific or commercial data.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we requested expert opinions from 14 knowledgeable peer 
reviewers with scientific expertise that included familiarity with the 
species, the geographic region in which the species occur, and 
conservation biology principles. We received responses from nine of the 
peer reviewers. They generally agreed that the description of the 
biology and habitat for each species was accurate and based on the best 
available information. They provided some new or additional information 
on the biology and habitat of some of these penguin species and their 
threats, and we incorporated that information into the rulemaking as 
appropriate. In some cases, it has been indicated in the citations by 
``personal communication,'' which could indicate either an email or 
telephone conversation, while in other cases the research citation is 
provided.

Peer Reviewer Comments

    (1) Comment: Several peer reviewers provided new data and 
information regarding the biology, ecology, life history, population 
estimates, and threat factors affecting these penguin species, and 
requested that we incorporate the new data and information into this 
final rule and consider it in making our listing determination. With 
respect to potential threats, one peer reviewer raised the issue of 
flipper banding of the yellow-eyed penguin. Several peer reviewers 
provided clarifying information on predation with respect

[[Page 45498]]

to the Humboldt and white-flippered penguins. Additionally, some of the 
peer reviewers provided technical corrections and brought to our 
attention recent papers discussing taxonomy and genetics.
    Our Response: In addition to the critical review provided by 
species experts, we considered scientific and commercial information 
regarding these penguin species contained in technical documents, 
published journal articles, and other general literature documents, 
including over 30 documents we reviewed since the publication of the 
proposed rule to list these 5 penguin species. We have incorporated the 
new information and technical corrections into this final rule. In 
addition, we address flipper banding of the yellow-eyed penguin, and 
information on predation of the Humboldt and white-flippered penguins 
in the threats analyses for those species in this final rule.
    (2) Comment: One peer reviewer suggested that the mainland and sub-
Antarctic populations of yellow-eyed penguins should be considered 
separate management units, stating that there was negligible genetic 
interchange between populations. The peer reviewer cited information 
from 1989, and indicated that more recent work was in review, although 
no researcher or paper was cited.
    Our Response: We reviewed the best available information, including 
two papers on the genetics of yellow-eyed penguin published in 2008 and 
2009, and found no basis to amend our initial finding. The 2008 and 
2009 papers support our finding that the species should be listed as 
threatened throughout its range. Additional discussion is found later 
in this document under yellow-eyed penguin.
    (3) Comment: One peer reviewer raised the issue that the taxonomy 
of the white-flippered penguin has long been in debate.
    Our Response: We reviewed the best available information regarding 
the taxonomy of white-flippered penguin (Eudyptula minor albosignata), 
and we found no basis to amend our taxonomic treatment of the species. 
See the background section below on white-flippered penguin for 
additional discussion.

Public Comments

    (4) Comment: One commenter provided additional information 
regarding potential threat factors affecting these five species, and 
requested that we consider the information and incorporate it into the 
listing determinations. Specifically, the commenter indicated that the 
Service failed to address anthropogenic climate change and how it will 
affect penguins, particularly the Humboldt penguin. The commenter also 
requested that we address the issue of accelerated ocean warming and 
ocean acidification. The commenter suggested that the pH (acidity) of 
the ocean is rapidly changing, and may lower by 0.3 to 0.4 units by the 
year 2100, which would mean the acidity would increase by 100 to 150 
percent. The commenter cited Orr et al. 2005 and Meehl et al. 2007.
    Our Response: We thank the commenter who provided this information 
for our consideration in making this final listing determination. We 
will first respond to the comment that greenhouse gas emissions will 
accelerate ocean warming and increase sea level rise. Gille (2002, p. 
1276) found that while ocean warming occurred in the 1950s and 1960s, 
it leveled off in the 1980s and 1990s; overall, there was an increase 
in ocean water temperature in the Southern Hemisphere over the past 50 
years. Looking forward to years 2090-2099, precipitation is predicted 
to increase across the sub-Antarctic and Antarctic region, with a 
greater than 20 percent increase predicted for the Antarctic continent 
(IPCC 2007, p. 10). We acknowledge that ocean warming and sea level 
rise may occur. Warming of the climate system is unequivocal, as is now 
evident from observations of increases in global average air and ocean 
temperatures, widespread melting of snow and ice, and rising global 
average sea level ((IPCC 2007, p. 30). During the status review, we 
carefully evaluated threats facing these species. We considered the 
various threats in part based on their severity. In some cases, the 
effects of climate change are unpredictable and understudied, and the 
best available information does not indicate how increased sea level 
rise and ocean warming may affect these five penguin species. However, 
we determined what major stressors are affecting the status of the 
species, and evaluated those stressors based on the best available 
scientific and commercial information
    Secondly, we acknowledge that the issue of ocean acidification was 
not directly addressed in the proposed rule. Again, with respect to 
penguins, the best available information does not address how ocean 
acidity would impact the physiology and food web associated with these 
five 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 the other 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.
    (5) Comment: The same commenter requested that the Service consider 
listing these five species as endangered instead of threatened based on 
the two issues noted above.
    Our Response: Section 4(b)(1)(A) of the Act requires us to make 
listing decisions based solely on the best scientific and commercial 
data available. We have thoroughly reviewed all available scientific 
and commercial data for these species in preparing this final listing 
determination. We reviewed historical and recent publications, as well 
as unpublished reports, concerning these species. In addition, we used 
peer review to provide a more focused, independent examination of the 
available scientific information and its application to the current 
status of the species. As part of our evaluation, we carefully 
considered the quality and reliability of all data to decide which 
constitutes the best available data for our consideration in making our 
final determination. We analyzed the threats in making our 
determination, and our review of the threat factors indicate that 
listing these five species as threatened is warranted. After reviewing 
the peer review and public comments we received, we have no reason to 
alter our assessment. Based on our analysis, we determined that none of 
these five penguin species is currently in danger of extinction 
throughout its entire range, and therefore none of them meet the 
definition of endangered under the Act (16 U.S.C. 1532(6)).

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 five foreign penguin 
species. 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. Reviewers 
generally commented that the proposed rule was very thorough and 
comprehensive. We made some technical corrections based on new, 
although limited, information. None of the information, however, 
changed our determination that listing these five species as threatened 
is warranted.

[[Page 45499]]

Species Information and Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations 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. 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.
    Below is a species-by-species threats analysis of these five 
factors. The species are considered in the following order: Yellow-eyed 
penguin, white-flippered penguin, Fiordland crested penguin, Humboldt 
penguin, and erect-crested penguin.

Yellow-eyed Penguin (Megadyptes antipodes)

Background

    The yellow-eyed penguin, also known by its Maori name, hoiho, is 
the third largest of all penguin species, averaging around 18 pounds 
(lb) (8 kilograms (kg)) in weight, the males averaging 1 kg more than 
females at 8.5 kg. It is the only species in the monotypic genus 
Megadyptes (Boessenkool et al. 2009, p. 819). Yellow-eyed penguins 
breed on the southeast coast of New Zealand's South Island, from Banks 
Peninsula to Bluff at the southern tip; in Fouveaux Strait, and on 
Stewart and adjacent islands just 18.75 mi (30 km) from the southern 
tip of the New Zealand mainland; and at the sub-Antarctic Auckland and 
Campbell Islands, 300 mi (480 km) and 380 mi (608 km), respectively, 
south of the southern tip of the South Island. The distribution is 
thought to have moved north since the 1950s (McKinlay 2001, p. 8). The 
species is confined to the seas of the New Zealand region and forages 
over the continental shelf (Taylor 2000, p. 93).
    Unlike more strongly colonial breeding penguin species, yellow-eyed 
penguins nest in relative seclusion, out of sight of humans and one 
another (Ratz and Thompson 1999, p. 205; Seddon and Davis 1989, pp. 
653-659; Wright 1998, pp. 9-10). Current terrestrial habitats range 
from native forest to grazed pasture (McKinlay 2001, p. 10). In some 
places, they nest in restored areas, and in other places, they nest in 
areas where livestock are still present (McKinlay 2001, p. 10). Prior 
to land clearing for agriculture by European settlers, the historic 
habitat was in coastal forests and shrub margins (Marchant and Higgins 
1990, p. 237).
    In 2001, the New Zealand Department of Conservation (NZDOC) 
published the Hoiho (Megadyptes antipodes) Recovery Plan (2000-2025) to 
state the NZDOC's intentions for the conservation of this species, to 
guide the NZDOC in its allocation of resources, and to promote 
discussion among the interested public (McKinlay 2001, p. 20). The goal 
of the Recovery Plan, which updates a 1985-1997 plan previously in 
place, is to increase yellow-eyed penguin numbers and have active 
community involvement in their conservation. The primary emphasis over 
the 25-year period is to ``retain, manage and create terrestrial 
habitat'' and to ``investigate the mortality of hoiho at sea'' 
(McKinlay 2001, p. 2).
    In 2007, the total population estimate was 1,600 breeding pairs 
(3,200 breeding adults in the population) (Houston 2007, p. 3). As of 
2009, the total estimate for this species is 7,000 individuals 
(Boessenkool et al. 2009, p. 815), which is not substantially different 
from the 2007 estimate.
    In the recent past, the number of breeding pairs has undergone 
dramatic periods of decline and fluctuation in parts of its range on 
the mainland of the South Island. Records suggest that the mainland 
populations declined by at least 75 percent from the 1940s to 1988. In 
1988, there were 380 to 400 breeding pairs (Darby and Seddon 1990, p. 
59). There have been large fluctuations since a low of about 100 
breeding pairs in the 1989-90 breeding season to over 600 in the 1995-
96 breeding season (McKinlay 2001, p. 10). Current mainland counts 
indicate 450 breeding pairs on the southeast coast of the mainland of 
the South Island (Houston 2007, p. 3). As recently as the 1940s, there 
were reported to be individual breeding areas where penguin numbers 
were estimated in the hundreds; in 1988, only 3 breeding areas on the 
whole of the South Island had more than 30 breeding pairs (Darby and 
Seddon 1990, p. 59).
    Just across the Fouveaux Strait at the southern tip of the South 
Island, at Stewart Island and nearby Codfish Island, yellow-eyed 
penguin populations numbered a combined estimate of 178 breeding pairs 
in the early 2000s (Massaro and Blair 2003, p. 110). While these 
populations are essentially contiguous with the mainland range, this is 
the first population estimate for this area based on a comprehensive 
count. This estimate, while lower than previous estimates, may be lower 
because when the population estimates were done in the 1980s and 1990s, 
they were partial surveys rather than full surveys. It is unclear 
whether numbers have declined in the past two decades or whether 
previous estimates, which extrapolated from partial surveys, were 
overestimates (Massaro and Blair 2003, p. 110), but evidence points to 
the latter. For example, Darby and Seddon (1990, p. 58) provided 1988 
estimates of 470 to 600 breeding pairs at Stewart Island and nearby 
Codfish Island, which the researchers extrapolated from density 
estimates. In the Hoiho Recovery Plan, which reported these 1988 
numbers, it is noted that, ``In the case of Stewart Island, these 
figures should be treated with a great deal of skepticism. Only a 
partial survey was completed in the early 1990s'' (McKinlay 2001, p. 
8). Darby (2003, p. 148), one of the authors of the 1988 estimate, 
subsequently reviewed survey data from the decade between 1984 and 1994 
and revised the estimates for this region down to 220 to 400 pairs. 
Houston (2008, p. 1) reported numbers are stable in all areas of 
Stewart and Codfish Islands, except in the northeast region of Stewart 
Island where disease and starvation are impacting colonies, as 
discussed in detail below. While it is reported that the numbers of 
birds at Stewart and Codfish Islands have declined historically (Darby 
and Seddon 1990, p. 57), it is unclear to what extent declines are 
currently under way.
    As of 2007, in the sub-Antarctic island range of the yellow-eyed 
penguin, there were an estimated 400 pairs on Campbell Island (down 
from 490 to 600 pairs in 1997), and 570 pairs on the Auckland Islands 
(Houston, 2007, p. 3).
    The yellow-eyed penguin is classified as ``Endangered'' by the 
International Union for Conservation of Nature (IUCN) criteria 
(BirdLife International 2007, p. 1). When the New Zealand Action Plan 
for Seabird Conservation was completed in 2000, the species' IUCN 
Status was `Vulnerable,' and it was listed as Category B (second 
priority) on the Molloy and Davis threat categories employed by the New 
Zealand Department of Conservation (NZDOC) (Taylor 2000, p. 33). On 
this basis, the species was placed in the second tier of New Zealand's 
Action Plan for Seabird Conservation. The species is listed as 
``acutely threatened--nationally vulnerable'' on the New Zealand Threat 
Classification System

[[Page 45500]]

List (Hitchmough et al. 2007, p. 45; Molloy et al. 2002, p. 20).

Summary of Factors Affecting the Yellow-eyed Penguin

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of the Yellow-eyed Penguin's Habitat or Range

    Deforestation and the presence of grazing animals and agricultural 
activities have destroyed or degraded yellow-eyed penguin habitat 
throughout the species' range on the mainland South Island of New 
Zealand. Much of the decline in breeding numbers can be attributed to 
loss of habitat (Darby and Seddon 1990, p. 60; Taylor 2000, p. 94). The 
primary historic habitat of the reclusive yellow-eyed penguin on the 
southeast coast of the South Island of New Zealand was the podocarp 
hardwood forest. During the period of European settlement of New 
Zealand, almost all of this forest was cleared for agriculture, with 
forest clearing activities continuing into at least the 1970s 
(Sutherland 1999, p. 18). This has eliminated the bulk of the historic 
mainland breeding vegetation type for this species (Marchant and 
Higgins 1990, p. 237). With dense hardwood forest unavailable, the 
breeding range of yellow-eyed penguins has now spread into previously 
unoccupied habitats of scrubland, open woodland, and pasture (Marchant 
and Higgins 1990, p. 237). Here the breeding birds are exposed to new 
threats. In agricultural areas, breeding birds are exposed to the 
trampling of nests by domestic cattle. For example, on the mainland 
Otago Peninsula in 1985, cattle destroyed 25 out of 41 nests (60 
percent) (Marchant and Higgins 1990, p. 238).
    Yellow-eyed penguins are also more frequently exposed to fire in 
these new scrubland and agricultural habitat, such as a devastating 
fire in 1995 at the Te Rere Yellow-eyed Penguin Reserve in the southern 
portion of the mainland of the South Island, which killed more than 60 
adult penguins out of a population of 100 adults at the reserve, as 
well as fledgling chicks on shore (Sutherland 1999, p. 2; Taylor 2000, 
p. 94). Five years after the fire, there was little evidence of 
recovery of bird numbers at this reserve (Sutherland 1999, p. 3), 
although there had been considerable efforts to restore the land 
habitat through plantings, creation of firebreaks, and predator 
control.
    Habitat recovery efforts, dating as far back as the late 1970s and 
set out in the 1985-1997 Hoiho Species Conservation Plan (McKinlay 
2001, p. 12), have focused on protecting and improving breeding 
habitats. Habitat has been purchased or reserved for penguins at the 
mainland Otago Peninsula, North Otago, and Catlins sites, with 20 
mainland breeding locations (out of an estimated 32 to 42) reported to 
be under ``statutory'' protection against further habitat loss (Ellis 
1998, p. 91). New, currently unoccupied areas have been acquired to 
provide the potential to support increased populations in the future 
(McKinlay 2001, p. 12). Fencing and re-vegetation projects have been 
implemented to restore nesting habitat and to exclude grazing animals 
from breeding habitats (McKinlay 2001, p. 12). In some cases, efforts 
to fence penguin reserves to reduce trampling by cattle have created 
more favorable conditions for attack by introduced predators (see 
Factor C) (Alterio et al. 1998, p. 187). In addition, the Yellow-eyed 
Penguin Trust has been active in the conservation of this species, and 
has purchased land specifically for the protection of the species 
(https://yellow-eyedpenguin.org.nz). Despite these efforts, yellow-eyed 
penguin numbers on the mainland have not increased and have continued 
to fluctuate dramatically at low levels, with no sustained increases 
over the last 27 years (McKinlay 2001, p. 10). Although we did not rely 
on future conservation efforts by New Zealand in our analysis of 
threats, we note that efforts in the second phase of the Hoiho Recovery 
Plan continue to focus on managing, protecting, and restoring the 
terrestrial habitat of the yellow-eyed penguin (McKinlay 2001, p. 15).
    On the offshore and sub-Antarctic islands of its range, feral 
cattle and sheep destroyed yellow-eyed penguin nests on Enderby and 
Campbell Islands (Taylor 2000, p. 94). All feral animals were removed 
from Enderby Island in 1993, and from Campbell Island in 1984 (cattle) 
and 1991 (sheep) (Taylor 2000, p. 95). Reports indicate very little 
change in the quality of terrestrial habitat of the yellow-eyed penguin 
habitat on these islands (McKinlay 2001, p. 7).
    Although individual locations remain susceptible to fire or other 
localized events, the threat of manmade habitat destruction has been 
reduced over the dispersed range of the species on the mainland South 
Island. In our analysis of other threat factors, in particular Factor 
C, we will further examine why the recovery goals for mainland 
populations have not been achieved. Specifically, the goal in the 1985-
1997 recovery plan of maintaining two managed mainland populations, 
each with a minimum of 500 pairs, was not achieved (McKinlay 2001, p. 
13). Eight years into the 2000-2025 recovery plan, the long-term goal 
to increase yellow-eyed penguin populations remains elusive. However, 
significant public and private efforts have been undertaken in New 
Zealand over past decades to protect and restore yellow-eyed penguin 
breeding habitat on the mainland South Island. Further, the species' 
island breeding habitats have either not been impacted or, if 
historically impacted, the causes of disturbance have been removed. In 
addition, the Yellow-eyed Penguin Trust has been active in the 
conservation of this species, and has purchased land specifically for 
the protection of the species. Because these conservation efforts have 
been implemented, we find that the present or threatened destruction, 
modification, or curtailment of its terrestrial habitat or range is not 
a threat to the species.
    In the marine environment, yellow-eyed penguins forage locally 
around colony sites during the breeding season. Unlike most penguin 
species, yellow-eyed penguins tend to be benthic (bottom of ocean) 
rather than pelagic (surface of ocean) feeders (Mattern 2007, p. 295). 
They are known to feed on a variety of fish and squid species, 
including opal fish (Hemerocoetes monopterygius), blue cod (Parapercis 
colias), sprat (Sprattus antipodum), silverside (Argentina elongata), 
red cod (Pseudophycis bachus), and arrow squid (Nototodarus sloani) 
(van Heezik 1990b, pp. 209-210). Yellow-eyed penguins that were tracked 
from breeding areas on the Otago Peninsula on the mainland of the South 
Island foraged over the continental shelf in waters from 131 to 262 
feet (ft) (40 to 80 meters (m)) deep. In foraging trips lasting on 
average 14 hours, they ranged a median of 8 mi (13 km) from the 
breeding area (Moore 1999, p. 49). Foraging ranges utilized by birds at 
the offshore Stewart Island were quite small (ca. 7.9 mi\2\ (20.4 
km\2\)) compared to the areas used by birds at the adjacent Codfish 
Islands (ca. 208 mi\2\ (540 km\2\)) (Mattern et al. 2007, p. 115).
    There is evidence that modification of the marine environment by 
human activities may reduce the viability of foraging areas for yellow-
eyed penguins on a local scale. Mainland population declines in 1986-
1987 have been attributed to ``changes in the marine environment and 
failure of quality food'' (McKinlay 2001 p. 9), but we have not found 
evidence attributing recent population changes at either mainland 
colonies or the more distant Campbell and Auckland Islands' colonies to 
changes in the marine environment.
    Mattern et al. (2007, p. 115) concluded that degradation of benthic

[[Page 45501]]

habitat by commercial oyster dredging is limiting viable foraging 
habitat and increasing competition for food for a small portion of 
Stewart Island penguins breeding in areas on the northeast coast of 
that island, resulting in chick starvation (King 2007, p. 106). Chick 
starvation and disease are the two most prevalent causes of chick death 
at the northeast Stewart Island study colonies (King 2007, p. 106). 
Poor chick survival and, presumably, poor recruitment of new breeding 
pairs, is reported to be the main cause of a decline in the number of 
breeding pairs (King 2007, p. 106). At the adjacent Codfish Island, 
where food is more abundant and diverse (Browne et al. 2007, p. 81), 
chicks have been found to flourish even in the presence of disease. 
Browne et al. (2007, p. 81) found dietary differences between the two 
islands. Stewart Island chicks received meals comprised of fewer 
species and less energetic value than those at Codfish Island. The 
foraging grounds of these two groups do not overlap, suggesting that 
local-scale influences in the marine environment (Mattern et al. 2007, 
p. 115) are impacting the Stewart Island penguins. These authors 
concluded that at Stewart Island, degradation of benthic habitat by 
commercial oyster dredging is limiting foraging habitat for yellow-eyed 
penguins. The 178 pairs on Stewart Island and adjacent islands make up 
11 percent of the total current population, and only a portion of this 
number are affected by the reported degradation of benthic habitat by 
fisheries activities. Therefore, while the present or threatened 
destruction, modification, or curtailment of its marine habitat or 
range by commercial oyster dredging is a threat to chick survival for 
some colonies at Stewart Island, we find that the present or threatened 
destruction, modification, or curtailment of its marine habitat is not 
a threat to the species overall.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The yellow-eyed penguin has become an important part of the 
ecotourism industry on the mainland South Island of New Zealand, 
particularly around the Otago Peninsula and the Southland areas. 
Tourism is the primary commercial, recreational, or educational use of 
the yellow-eyed penguin. Approximately 126,000 tourists viewed penguins 
in New Zealand in 2006 and 2007 (NZ Ministry of Tourism, 2007).
    When the proposed rule was published, we were not aware of tourism 
activities in the island portions of the range of the yellow-eyed 
penguin. However, since then, we have learned that tourists are viewing 
yellow-eyed penguins on Enderby Island, which is the northernmost 
island of a Subantarctic group known as the Auckland Islands 
approximately 320 km (199 mi) south of New Zealand. Yellow-eyed 
penguins are extremely wary of human presence and will not land on the 
beach if humans are in sight (McClung et al. 2004, p. 279). Yellow-eyed 
penguins select nest sites with dense vegetative cover and a high 
degree of concealment (Marchant and Higgins 1990, p. 240), and prefer 
to be shaded from the sun and concealed from their neighbors (Seddon 
and Davis 1989, p. 653). Given these secretive habits, research has 
focused on how the potential of increasing tourism impacts yellow-eyed 
penguins (Seddon and Ellenberg, 2008). In one study, yellow-eyed 
penguins showed lower breeding success in areas of unregulated tourism 
than in those areas visited infrequently for monitoring purposes only 
(McClung et al. 2004, p. 279).
    In an older study, no obvious impacts of tourist presence were 
found (Ratz and Thompson 1999, p. 208). Breeding success appeared to be 
equivalent in both the colony visited by tourists and the colony not 
visited by tourists; however, the penguins were habituated to a 
particular noninvasive level of tourism. In newer studies, disturbance 
was associated with increased heart rate, stress level, energy use, and 
corticosterone levels (associated with stress) in parents and lower 
fledgling weights of chicks (Ellenberg et al. 2006, p. 95). Yellow-eyed 
penguins exhibited a stronger initial stress response than other 
penguin species at a breeding site exposed to unregulated tourism 
compared to an undisturbed area (Seddon and Ellenberg, 2008p. 171.) 
These studies have provided information, some of which is being used in 
the design of visitor management and control procedures at yellow-eyed 
penguin viewing areas to minimize disturbance to breeding pairs. A key 
impact from human disturbance described in the Recovery Plan is that 
yellow-eyed penguins may not come ashore or may leave the shore 
prematurely after landing. The Hoiho Recovery Plan identified 14 
mainland areas where current practices of viewing yellow-eyed penguins 
already minimize tourism impacts on yellow-eyed penguins and recommends 
that practices in these areas remain unchanged. Eight additional areas 
were identified as suitable for development as tourist destinations to 
observe yellow-eyed penguins where minimization of tourism impacts can 
be achieved (McKinlay 2001, p. 21). NZDOC is using these existing lists 
to guide the approval of tourism. Overall, under the plan, tourism is 
being directed to those sites where impacts of tourism can be 
minimized. However, unregulated tourism still occurs (McKinlay 2001, p. 
8; PenguinSpirit 2009, p. 2, BLI 2010b, p. 2) and affects penguins.
    With respect to the impact of research on yellow-eyed penguins, 
flipper banding for scientific research was identified as having a 
negative effect on some penguin species. At a 2005 penguin symposium, 
van Heezik presented findings (pp. 265-266) that flipper banded 
penguins had a lower survival rate than nonbanded penguins for age 
class 2 to 11. Another review of scientific research regarding flipper 
banding found the survival rate of flipper banded penguins compared 
with nonbanded penguins to be 21 percent less (Froget et al. 1998, pp. 
409-413). Dugger found a 10 percent reduced survival rate in stainless 
steel-banded penguins compared with nonbanded penguins (Petersen et al. 
2006, p. 76). Petersen's review of the effects of flipper banding 
indicated that there may be negative effects of flipper banding.
    Different types of banding have been used, and species appear to be 
affected differently by them. In addition, there may be coping 
mechanisms to compensate for any drag that penguins experience when 
swimming with flipper bands. Other evidence of negative effects of 
flipper banding include the finding that unbanded King penguin adults 
were more likely to successfully breed, possibly because they arrived 
earlier at the colony for courtship. They produced almost twice as many 
young over four breeding seasons (Gauthier-Clerc et al. 2004, p. 424). 
Researchers hypothesize that the unbanded penguins have a competitive 
advantage over the banded penguins, which appears to be a reasonable 
conclusion. This research identified flipper banding as a problem, and 
the penguin scientific community subsequently modified banding 
techniques. The detrimental tagging methods were abandoned or modified. 
Therefore, after evaluating this factor, we find that flipper banding, 
while it should continue to be monitored, does not constitute a threat 
to this species. We have found no other reports of impacts on this 
species from scientific research or any other commercial, recreational, 
scientific, or educational purposes.
    Nature-based tourism has increased in recent decades. The New 
Zealand DOC, in cooperation with conservation,

[[Page 45502]]

tourism, and industry stakeholders, has put measures in place to 
understand and minimize the impacts of tourism activities on the 
yellow-eyed penguin through the Hoiho Recovery Plan. A study by Seddon 
and Ellenberg in 2008 indicates that yellow-eyed penguins are 
particularly sensitive to human disturbance such as tourism (pp. 169-
170). Although yellow-eyed penguins do not always exhibit an obvious 
alarm reaction, other penguin species have exhibited increased heart 
rates when humans were within 1 m (3 ft) of nesting penguins (Seddon 
and Ellenberg, 2008, pp. 167, 170). Yellow-eyed penguins needed more 
recovery time than other penguins after exposure to a stressor (p. 
170), and this stress response carries with it an associated 
expenditure of energy. Based on this information, we find that 
overutilization for commercial, recreational, scientific, or 
educational purposes, particularly unregulated tourism, is a threat to 
the yellow-eyed penguin.

Factor C. Disease or Predation

    Disease has been identified as a factor influencing both adult and 
chick mortality in yellow-eyed penguins. We have identified reports of 
one major disease outbreak involving adult penguins and ongoing reports 
of disease in yellow-eyed penguin chicks.
    Initial investigation of a major die-off of adult yellow-eyed 
penguins at Otago Peninsula in 1990 failed to identify the etiology of 
the deaths (Gill and Darby 1993, p. 39). This involved mortality of 150 
adult birds or 31 percent of a mainland population estimated at the 
time to include 240 breeding pairs. Subsequent investigation of avian 
malaria seroprevalence among yellow-eyed penguins found that the 
mortality features, climatological data, and pathological and 
serological findings at the time conformed to those known for avian 
malaria outbreaks (Graczyck et al. 1995, p. 404), leading the authors 
to conclude that avian malaria was responsible for the die-off. These 
authors associated the outbreak with a period of warmer than usual sea 
and land temperatures. More recently, Sturrock and Tompkins (2007, pp. 
158-160) looked for DNA from malarial parasites in yellow-eyed penguins 
and found that all samples were negative. This suggests that earlier 
serological tests were overestimating the prevalence of infection or 
that infection was transient or occurred in age classes not sampled in 
their current study. While this raises questions as to the role of 
avian malaria in the 1990 mortality event, the authors noted, given the 
spread of avian malaria throughout New Zealand and previous results 
indicating infection and mortality in yellow-eyed penguins, that 
continued monitoring of malarial parasites in this species should be 
considered an essential part of their management until the issue of 
their susceptibility is resolved. There have been no subsequent 
disease-related die-offs of adult yellow-eyed penguins at mainland 
colonies since the 1990s (Houston 2007, p. 3).
    The haemoparasite Leucocytozoon, a blood parasite spread by 
blackflies, was first identified in yellow-eyed penguins at the 
offshore Stewart and Codfish Islands in 2004 (Hill et al. 2007, p. 96) 
and was one contributor to high chick mortality at Stewart Islands in 
2006-2007, which involved loss of all 32 chicks at the northeast Anglem 
Coast monitoring area of the Yellow-eyed Penguin Trust. This parasite 
may have spread from Fiordland crested penguins, which are known to 
house this parasite (Taylor 2000, p. 59). Chick mortality was also 
reported at this area in 2007-2008 (Houston 2008, pers. comm.). It is 
not clear if the Leucocytozoon predisposes animals to succumb from 
other factors, such as starvation or concurrent infection with other 
pathogens (such as diphtheritic stomatitis), or if it is the factor 
that ultimately kills them, but over 40 percent of chick mortality over 
three breeding seasons at Stewart Island study colonies was attributed 
to disease (King 2007, p. 106). The survival of infected chicks at 
nearby Codfish Island, where food is more abundant, indicates that 
nutrition can make a difference in whether mortality occurs in diseased 
chicks (Browne et al. 2007, p. 81; King 2007, p. 106). Healthy adults 
who are infected, but not compromised, by this endemic disease provide 
a reservoir for infection of new chicks through the vector of 
blackflies. No viable method of treatment for active infections in 
either chicks or adults has been identified.
    At the mainland Otago Peninsula in the 2004-2005 breeding season, 
an outbreak of Corynebacterium amycolatum infection (diptheritic 
stomatitis) caused high mortality in yellow-eyed penguin chicks 
(Houston 2005, p. 267) at many colonies there and on Stewart Island 
(where it may have been a contributing factor to the mortalities 
discussed above from Leucocytozoon). Mortality was not recorded at 
Codfish Island or at the sub-Antarctic islands (Auckland and Campbell 
Islands). The disease produced lesions in the chicks' mouths and upper 
respiratory tract and made it difficult for the chicks to swallow. All 
chicks at Otago displayed the symptoms, but survival was better in 
older, larger chicks. Treatment with broad spectrum antibiotics was 
reported to have achieved ``varying results,'' and it is not known how 
this disease is triggered (Houston 2005, p. 267).
    In summary, disease has seriously impacted both mainland and 
Stewart Island populations of yellow-eyed penguins over the past two 
decades. A mainland mortality event in 1990, attributed to avian 
malaria, killed 31 percent of the mainland adult population of yellow-
eyed penguin. While there is lack of scientific certainty over the 
impact of malaria on yellow-eyed penguins, the overall spread of this 
disease, the small population size of yellow-eyed penguins, and 
evidence of its presence in their populations lead us to conclude that 
this is an ongoing threat. Disease events contributed to or caused 
mortality of at least 20 percent of chicks at Stewart Island in 2006-
2007 and complete mortality in local colonies. The continuing 
contribution to yellow-eyed penguin chick mortality from Leucocytozoon 
and diptheritic stomatitus at Stewart Island and the recent high 
mortalities of mainland chicks from diptheritic stomatitis indicate the 
potential for future emergence or intensified outbreaks of these or new 
diseases. The emergence of disease at both mainland and Stewart Island 
populations in similar time periods and the likelihood that 
Leucocytozoon was spread to the yellow-eyed penguin from the Fiordland 
crested penguin point out the significant possibility of future 
transmission of known diseases between colonies or between species, and 
the possibility of emergence of new diseases at any of the four 
identified breeding locations of the yellow-eyed penguin.
    Predation of chicks and sometimes adults by introduced stoats 
(Mustela erminea) (which are good swimmers), ferrets (M. furo), cats 
(Felis catus), and dogs (Canis domesticus) is the principal cause of 
yellow-eyed penguin chick mortality on the South Island with up to 88.5 
percent of chicks in any given habitat being killed by predators 
(Alterio et al. 1998, p. 187; Clapperton 2001, p. 187, 195; Darby and 
Seddon 1990, p. 45; Marchant and Higgins 1990, p. 237; McKinlay et al. 
1997, p. 31; Ratz et al. 1999, p. 151; Taylor 2000, pp. 93-94). In a 6-
year study of breeding success of yellow-eyed penguins in mainland 
breeding areas, predation accounted for 20 percent of chick mortality 
overall, and was as high as 63 percent overall in one breeding season 
(Darby and Seddon 1990, p. 53). Proximity to farmland and grazed 
pastures was found to be a factor accounting for high predator 
densities

[[Page 45503]]

with 88 percent predation at one breeding area adjacent to farmland 
(Darby and Seddon 1990, p. 57). Of 114 yellow-eyed penguin carcasses 
found on the South Island mainland between 1996 and 2003, one-quarter 
of deaths were attributed to predation. Dogs and mustelids were found 
to be the most common predators (Hocken 2005, p. 4).
    In light of this threat, protection of chicks from predators is a 
primary objective under the 2000-2025 Hoiho Recovery Plan. Approaches 
to predator control are being established and refined at breeding sites 
on the mainland (McKinlay et al. 1997, pp. 31-35), targeting ferrets, 
stoats, and cats. The New Zealand DOC has concluded that predation is a 
threat that may be managed through trapping or other cost-effective 
methods to protect chicks in nests (McKinlay 2001, p. 18). The recovery 
plan indicates that a minimum protection of 43 percent of nests would 
be needed to ensure population growth (McKinlay 2001, p. 18). The 
recovery plan establishes a goal of protecting 50 percent of all South 
Island nests from predators between 2000 and 2025. Where intensive 
predator control regimes have been put in place, they are effective 
(McKinlay et al. 1997, p. 31), capturing 69 to 82 percent of predators 
present. In a long-term analysis of three closely monitored study 
colonies, which make up roughly half the nests at the Otago Peninsula 
and about 10 to 20 percent of the nests on the mainland, Lalas et al. 
(2007, p. 237) found that the threat of predation on chicks by 
introduced terrestrial mammals had been mitigated by trapping and 
shooting, and no substantial predation events had occurred between 1984 
and 2005. We do not have information on the extent to which anti-
predator measures are in place for the remaining 80 to 90 percent of 
yellow-eyed penguin nests on the mainland of the South Island of New 
Zealand. Other efforts to remove or discourage predation have not been 
as successful. A widely applied approach of establishing ``vegetation 
buffers'' around yellow-eyed penguin nest sites to act as barriers 
between predators and their prey was found to actually increase 
predation rates. Predators preferred the buffer areas and used penguin 
paths within them to gain easy access to penguin nests (Alterio et al. 
1998, p. 189). Given these conflicting reports, we cannot evaluate to 
what extent management efforts are moving toward the goal of protection 
of 50 percent of all yellow-eyed penguin nests on the mainland.
    Offshore, at Stewart and Codfish Islands, there are a number of 
introduced predators, but mustelids are absent. Research indicated that 
the presence of feral cats could be depressing the population of 
yellow-eyed penguins at Stewart Island. (Harper 2004, p. 26; Massaro 
and Blair 2003, p. 107). Weka (Gallirallus australis) have been 
eradicated from Codfish Island, but may prey on eggs and small chicks 
in the Fouveaux Strait and some breeding islands in the Stewart Island 
region at the southern tip of New Zealand (Darby 2003, p. 152; Massaro 
and Blair 2003, p. 111).
    Some islands, including the Codfish and Bravo group, have Norway 
rats (Rattus norvegicus, Pacific rats (R. exulans), and ship rats (R. 
rattus), which are thought to prey on small chicks (Massaro and Blair 
2003, p. 107). Even though Norway rats are present on Campbell Island, 
evidence of egg or chick predation by terrestrial mammalian predators 
was not observed during two breeding seasons (Taylor 2000, pp. 93-94).
    At Auckland Island, it is reported that feral pigs (Sus scrofa) 
probably kill adults and chicks (Taylor 2000, pp. 93).
    At Otago Peninsula, even as objectives are set to attempt to bring 
terrestrial predators under more effective control, an emerging threat 
is predation by the New Zealand sea lion (Phocarctos hookeri). Since 
1985, sea lions have recolonized the area and predation of yellow-eyed 
penguins has increased. Penguin remains have been more frequently found 
in sea lion scat samples. Two penguin breeding sites in close proximity 
to the founding nursery area of female sea lions have been particularly 
impacted. The number of nests at these two colonies has declined 
sharply since predation was first observed and when colonization by 
female sea lions first took place. As discussed above, these two sites 
are among those that have been intensively and successfully protected 
from introduced terrestrial predators between 1984 and 2005 (Lalas et 
al. 2007, p. 237), so declines can be directly attributed to sea lion 
predation. The predation has been attributed to one female, the 
daughter of the founding animal. Population modeling of the effect of 
continued annual kills by sea lions predicts the collapse of small 
populations (fewer than 100 nests) subject to targeted predation by one 
individual sea lion. At the current time, none of the 14 breeding sites 
at Otago Peninsula exceeds 100 nests. No action has been taken to 
control this predation, although removal of predatory individuals has 
been suggested (Lalas et al. 2007, pp. 235-246). Similar predation by 
New Zealand sea lions was observed at Campbell Island in 1988 and was 
considered a probable cause for local declines there (Moore and Moffat 
1992, p. 68). Some authors have speculated that New Zealand sea lion 
may take yellow-eyed penguins at Stewart Island, but there are no 
documented reports (Darby 2003, p. 152). Because of its continued role 
in suppressing the recovery of yellow-eyed penguin populations and 
because of the continued impact of introduced terrestrial and avian 
predators and native marine predators, we find that predation is a 
threat to the yellow-eyed penguin.
    In summary, on the basis of the best available scientific 
information, we find that disease and predation, which have impacted 
both mainland and island populations, threaten the yellow-eyed penguin. 
New or recurrent disease outbreaks are reasonably likely to occur in 
the future and may result in further declines throughout the species' 
range. Although some predator eradication efforts within breeding areas 
of the yellow-eyed penguin have been successful, predation continues to 
affect the species, and we do not expect that regulatory mechanisms 
will be sufficient to address or ameliorate the threats to the species 
in the foreseeable future. Furthermore, the threat of predation by 
endemic sea lions is impacting populations on the mainland and at the 
Campbell Islands, and we have no reason to believe this threat will not 
continue to reduce population numbers of the yellow-eyed penguin in 
those areas. We find that disease and predation are threats to this 
species.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    The yellow-eyed penguin is protected under New Zealand's Wildlife 
Act of 1953, which gives absolute protection to wildlife throughout New 
Zealand and its surrounding marine economic zone. No one may kill or 
have in their possession any living or dead protected wildlife unless 
they have appropriate authority.
    The species inhabits areas within Rakiura National Park, which 
encompasses Stewart and Codfish Islands (Whenua Hou). Under section 4 
of New Zealand's National Parks Act of 1980 and Park bylaws, ``the 
native plants and animals of the parks shall as far as possible be 
preserved and the introduced plants and animals shall as far as 
possible be eradicated.'' In addition to national protection, all New 
Zealand sub-Antarctic islands, including Auckland and Campbell Islands, 
are inscribed on the World Heritage List (2008, p. 16), although no 
additional protections are afforded by

[[Page 45504]]

this designation. We do not have information to evaluate whether and to 
what extent these National Park bylaws reduce threats to the yellow-
eyed penguin in these areas.
    The yellow-eyed penguin is considered a ``threatened'' species, and 
measures for its protection are outlined under the New Zealand DOC's 
Action Plan for Seabird Conservation in New Zealand (Taylor 2000, pp. 
93-94) (see discussion of Factor D for Fiordland crested penguin). 
Ellis et al. (1998, p. 91) reported that habitat has been purchased or 
reserved for penguins at the mainland Otago Peninsula, North Otago and 
Catlins sites. Twenty mainland breeding locations (out of an estimated 
32 to 42 sites) are reported to be under ``statutory protection'' 
against further habitat loss. However, we have not found a complete 
breakdown of the types of legal protection in place for these areas, of 
the percent of the total mainland population encompassed under such 
areas, or of the effectiveness, where they are in place, of such 
regulatory mechanisms in reducing the identified threats to the yellow-
eyed penguin.
    As a consequence of its threatened designation, a 2000-2025 
Recovery Plan for this species was developed. This plan builds on the 
first phase (1985-1997) of Hoiho Recovery efforts (McKinlay 2001, pp. 
12-13). This plan lays out future objectives and actions to meet the 
long-term goal of increasing yellow-eyed penguin populations and 
achieving active community engagement in their conservation (McKinlay 
2001, pp. 1-24). The Recovery Plan outlines proposed measures to 
address chronic factors historically affecting individual colonies, 
such as destruction or damage to colonies due to fire, livestock 
grazing, and other manmade disturbance; predation by introduced 
predators; disease; and the impact of human disturbance (especially 
through tourism activities) (McKinlay 2001, pp. 15-22). Another 
objective of the plan is to provide enduring legal guarantees of 
protections for breeding habitat through reservation or covenant 
(McKinlay 2001, p. 12). The best available information does not allow 
us to evaluate in detail the progress that has been made in meeting the 
eight objectives of the 2000-2025 recovery plan, but as discussed 
elsewhere, the population recovery goals of the original earlier plan 
continue to be hard to reach for all but the Auckland Islands, and the 
development of anti-predator measures is an ongoing challenge. We are 
aware, as discussed in analysis of other threat factors, that concerted 
public and private efforts on these objectives continue. However, in 
the absence of concrete information on implementation of the plan and 
reports on its efficacy, we did not rely on future measures proposed in 
the Hoiho Recovery Plan in our threats analysis.
    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). As discussed below under Factor E, 
rapid containment of spills in remote areas and effective triage 
response under this plan have shown these to be effective regulatory 
mechanisms (New Zealand Wildlife Health Center 2007, p. 2; Taylor 2000, 
p. 94).
    A review of the best available information indicates that there are 
general, or in some cases specific, protective or regulatory measures 
to address threats to the yellow-eyed penguin. The best available 
information indicates that despite the existence of these protective or 
regulatory measures to address the threats to the yellow-eyed penguin, 
local marine habitat modification through oyster dredging in some areas 
(Factor A), disease and predation pressure (Factor C), and gillnet 
fisheries bycatch (Factor E), continue to act as threats to the yellow-
eyed penguin. We therefore find that the existing regulatory mechanisms 
are currently inadequate to protect the yellow-eyed penguin.

Factor E. Other Natural or Manmade Factors Affecting the Continued 
Existence of the Species

    The Action Plan for Seabird Conservation in New Zealand (Taylor 
2000, p. 94) reported that there is no evidence that commercial or 
recreational fishing is impacting prey availability for the yellow-eyed 
penguin.

Offshore Fisheries Bycatch

    Long-line fisheries were indicated as potentially having an effect 
on yellow-eyed penguins (BLI 2010b, p 2). Long-line fishing uses a long 
line with baited hooks attached to hanging fishing lines at various 
intervals. These lines are sometimes set using an anchor, or they can 
be left to drift. Thousands of hooks can be attached and the lines can 
be miles long and can alternatively be dragged along the seafloor or 
the surface of the ocean. Seabirds, particularly petrels, are 
especially vulnerable to long-line fishing because they take baited 
hooks. In certain conditions, birds can get hooked and tangled in the 
line and drown. This type of fishing impacts a number of New Zealand 
seabird species; however, the Action Plan for Seabird Conservation 
indicates it is unlikely that yellow-eyed penguins are caught in long-
lines. The National Plan of Action to Reduce the Incidental Catch of 
Seabirds in New Zealand Fisheries does not identify this as a threat to 
yellow-eyed penguins (Ministry of Fisheries and New Zealand DOC (MOF 
and NZDOC) 2004, p. 57)).

Coastal Fishing Bycatch

Otago Peninsula

    New Zealand's National Plan of Action to Reduce the Incidental 
Catch of Seabirds in New Zealand Fisheries, prepared by the MOF and 
NZDOC (2004, p. 57), indicated that yellow-eyed penguins are being 
incidentally caught in inshore set fishing nets (also known as gill 
nets). Gill nets are mesh nets, and they can at times be thousands of 
meters long. A study of bycatch of yellow-eyed penguins along the 
southeast coast of South Island of New Zealand during the period 1979-
1997 identified gill-net entanglement as a significant threat to the 
species (Darby and Dawson 2000, p. 327). Fishing nets are used in 
various ways. They may be set as anchored nets in long rows at or near 
the bottom of the ocean, or sometimes drift with a fishing vessel. 
Mortality was highest in areas adjacent to the Otago Peninsula (on the 
east coast of South Island, below Banks Peninsula) breeding grounds. 
Approximately 55 of 72 gill-netted penguins were found in this 
particular area (Darby and Dawson 2000, p. 329) as bycatch. An analysis 
of 185 carcasses collected between 1975 and 1997 found that 42 (23 
percent) showed features consistent with mortality from gill-net 
entanglement. In that period, a further 30 entanglements were reported 
to officials (Darby and Dawson 2000, p. 327). While these numbers may 
appear small for the timeframe under study, the authors consider them 
to be underestimates of actual bycatch mortality (Darby and Dawson 
2000, p. 331) because not all fishermen report bycatch.
    Most gill-net entanglements reported by Darby and Dawson (2000, p. 
331) are from a small geographic area at or near the Otago Peninsula, 
near the small concentrations of yellow-eyed penguins.

[[Page 45505]]

In 1996, for example, there were approximately 350 breeding pairs of 
yellow-eyed penguin on the Otago Peninsula. Given these small numbers, 
the authors report that gill-net bycatch may be severe at a local 
scale. One small colony inside the entrance to Otago harbor suffered 
seven bycatch mortalities and was subsequently abandoned. The death of 
32 birds along the north Otago coast over the period of the study is 
significant in light of the reported breeding population of only 39 
pairs in this region, and, at Banks Peninsula, 7 reported mortalities 
occurred where there were only 8-10 breeding pairs (Darby and Dawson 
2000, p. 331). Given the small sizes of local yellow-eyed penguin 
concentrations, this mortality rate is significant to the maintenance 
of breeding colonies and the survival of adults in the population.

Banks Peninsula

    In response to bycatch of various species, set net bans have been 
implemented in the vicinity of the Banks Peninsula on the east coast of 
South Island, which has been designated as a marine reserve. A 4-month 
set net ban was primarily designed to reduce entanglements of Hector's 
dolphin (Cephalorhynchus hectori), as well as yellow-eyed penguins and 
white-flippered penguins (NZ DOC 2007, p. 1). Early reports were that 
this ban had been widely disregarded (Taylor 2000, p. 70). Based on the 
best available information, we are unable to conclude that these 
measures at the Banks Peninsula had been effective in reducing bycatch 
of yellow-eyed penguins. The Hoiho Recovery Plan states that bycatch is 
likely the largest source of mortality at sea; the Plan outlines the 
need for research and liaison with fisheries managers to inform 
implementation of further measures to reduce the impact of fishing 
operations on yellow-eyed penguins (McKinlay 2001, p. 19). We do not 
have information on whether these proposed measures have been 
implemented. Therefore, for purposes of this analysis, we did not rely 
on these proposed measures to evaluate incidental take from gill-net 
entanglement.
    Based on the significant gill-net bycatch mortality of yellow-eyed 
penguins along the southeast coast of the South Island of New Zealand, 
which has the potential to impact over a quarter of the population, we 
find that fisheries bycatch is a threat to the yellow-eyed penguin. In 
spite of efforts to regulate this activity, bycatch in coastal gill net 
fisheries is a threat to yellow-eyed penguins foraging from mainland 
breeding areas; therefore, we expect this threat to continue into the 
foreseeable future.
    Under Factor A, we concluded that habitat modification by 
commercial oyster dredging is a threat to local yellow-eyed penguin 
colonies at Stewart Island, but we have not found evidence of direct 
competition for prey between yellow-eyed penguins and human fisheries 
activities. While following penguins from mainland colonies fitted with 
Global Positioning System (GPS) dive loggers, Mattern et al. (2005, p. 
270) noted that foraging tracks of adult penguins were remarkably 
straight. They hypothesized that individuals were following dredge 
marks from bottom trawls, but there is no information to indicate that 
fishery interaction has any impact on the penguins. Therefore, we find 
that commercial or recreational fishing is not a threat to this 
species. However, local marine habitat modification through oyster 
dredging (commercial oyster dredging is a threat to chick survival for 
some colonies at Stewart Island), and fisheries bycatch from coastal or 
inshore set net or gillnet fishing, continue to act as threats to the 
yellow-eyed penguin in some areas of their range.

Oil and chemical spills

    We examined the possibility that oil and chemical spills may impact 
yellow-eyed penguins. Such spills, should they occur and not be 
effectively managed, can have direct effects on marine seabirds such as 
the yellow-eyed penguin. In the range of the yellow-eyed penguin, the 
sub-Antarctic Campbell and Auckland Islands are remote from shipping 
activity and the consequent risk of oil or chemical spills is low. The 
Stewart Islands populations at the southern end of New Zealand and the 
southeast mainland coast populations are in closer proximity to vessel 
traffic and human industrial activities which may increase the 
possibility of oil or chemical spill impacts. Much of the range of the 
yellow-eyed penguin on mainland New Zealand lies near Dunedin, a South 
Island port city, and a few individuals breed at Banks Peninsula just 
to the south of Christchurch, another major South Island port. While 
yellow-eyed penguins do not breed in large colonies, their locally 
distributed breeding groups are found in a few critical areas on the 
coast of the South Island and its offshore islands. A spill event near 
the mainland South Island city of Dunedin and the adjacent Otago 
Peninsula could have a major impact on the 14 breeding sites documented 
there. Nonbreeding season distribution along the same coastlines 
provides the potential for significant numbers of birds to encounter 
spills at that time as well. Two spills have been recorded in this 
overall region. In March 2000, the fishing vessel Seafresh 1sank in 
Hanson Bay on the east coast of Chatham Island and released 66 U.S. 
tons (T) (60 tonnes (t)) of diesel fuel. Rapid containment of the oil 
at this 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 529ran aground at Breaksea Islets off 
Stewart Island. Approximately 331 T (300 t) of marine diesel were 
spilled along with smaller amounts of lubricating and waste oils.
    With favorable weather conditions and establishment of triage 
response, no casualties of the Don Wong 529pollution event were 
discovered (Taylor 2000, p. 94). There is no doubt that an oil spill 
near a breeding colony could have a major effect on this species 
(Taylor 2000, p. 94). However, based on the wide distribution of 
yellow-eyed penguins around the mainland South Island, offshore, and on 
sub-Antarctic islands, the low number of previous incidents around New 
Zealand, and the fact that each was effectively contained under the New 
Zealand Marin