Comment on FR Doc # E7-24347

The following comments, which are attached in pdf format, are submitted by the Center for Biological Diveristy in support of the Proposed Listing Rule for the Chatham petrel (Pterodroma axillaris), Fiji petrel (Pterodroma macgillivrayi), magenta petrel (Pterodroma magentae), Cook?s petrel (Pterodroma cookii), Galapagos petrel (Pterodroma phaeopygia), and Heinroth?s shearwater (Puffinus heinrothi). To Whom It May Concern: The following comments are submitted on behalf of the Center for Biological Diversity (?Center?) regarding the U.S. Fish and Wildlife Service?s (?Service?) proposal to list six avian species, the Chatham petrel (Pterodroma axillaris), Fiji petrel (Pterodroma macgillivrayi), magenta petrel (Pterodroma magentae), Cook?s petrel (Pterodroma cookii), Galapagos petrel (Pterodroma phaeopygia), and Heinroth?s shearwater (Puffinus heinrothi) as either threatened or endangered, pursuant to the Endangered Species Act (?ESA?). See Endangered and Threatened Wildlife and Plants; Proposed Rule To List Six Foreign Bird Species Under the Endangered Species Act, 72 Fed. Reg. 71298 (December 17, 2007). A. ESA Listing History for the Six Birds In November 1980, the International Council for Bird Preservation submitted a petition to list 77 bird species, including 58 foreign species, as threatened or endangered under the ESA. 46 Fed. Reg. 26464 (May 12, 1981). The Service reported its ?12-month findings? on the petition some three years later, finding that listing these 58 foreign bird species was ?warranted but precluded? by other listing priorities. 49 Fed. Reg. 2485 (January 20, 1984). In making this determination, the Service stated, ?Publication of a proposal to list these species is planned during the present fiscal year (ending September 30, 1984).? Id. However, more than six years passed before the Service actually listed any of these species pursuant to the ESA. 55 Fed. Reg. 39858 (September 28, 1990) (listing six species as endangered); 59 Fed. Reg. 14496 (March 28, 1994) (proposing to list fifteen of the foreign bird species petitioned in 1980, but concluding that the remaining birds from the 1980 petition were still warranted but precluded); see also 50 Fed. Reg. 19,761 (May 10, 1985); 51 Fed. Reg. 996 (January 9, 1986); 53 Fed. Reg. 52,746 (December 29, 1988); 56 Fed. Reg. 58,664 (November 21, 1991). In May 1991, the Service received a second petition from the International Council for Bird Preservation that sought protection for an additional 53 foreign bird species. The Service issued its 12-month finding on the petition in March 1994, which proposed listing for 15 species from the 1991 petition, and concluded that listing the remaining species was ?warranted but precluded? by other listing activities. 59 Fed. Reg. 14496 (March 28, 1994). After March 1994, the Service made little headway regarding the status of the species identified in the 1980 and 1991 petitions. As a result, the Center submitted a letter in December 2002 to notify the Service that the Center intended to sue the agency for failing to take actions to protect these species. With no sign that the agency would comply with its statutory mandates, the Center filed suit and subsequently negotiated a settlement with the Service, whereby the Service agreed to submit new 12-month findings for the remaining foreign bird species to the Federal Register by May 15, 2004. The Service issued its findings on May 21, 2004, concluding that ?warranted-but-precluded findings remain appropriate for 51 species? and that ?seventeen species no longer warrant listing under the Act?.? Endangered and Threatened Wildlife and Plants; Annual Notice of Findings on Resubmitted Petitions for Foreign Species; Annual Description of Progress on Listing Actions, 69 Fed. Reg. 29354, 29355. These seventeen species include eleven that are now believed extinct, with at least five believed to have gone extinct while their protection under the ESA was pending. In the May 2004 findings, the Service proclaimed it would ?promptly prepare listing proposals for the giant ibis (Pseudibis gigantean), black stilt (Himantopus novaezelandiae), Gurney?s pitta (Pitta gurneyi), Socorro mockingbird (Mimodes graysoni), and Caerulean paradise-flycatcher (Eutrichomyias rowleyi). 69 Fed. Reg. at 29372. However, not until 2 ? years later, and only after a complaint was filed in federal court by the Center, did the Service actually act and submit the proposed rule. Such extreme delay is contrary to the ESA?s mandate for promptness. See 16 U.S.C. ? 1533 (b)(3)(B)(ii). Proposed listing rules should be issued jointly with ?warranted? findings, not 30 months later. See, e.g., Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Proposed Rule To List the Polar Bear (Ursus maritimus) as Threatened Throughout Its Range, 72 Fed. Reg. 1064 (January 9, 2007) (issuing ?warranted? finding and proposed listing rule for the polar bear jointly); Endangered And Threatened Species; Proposed Endangered Status for North Pacific Right Whale, 71 Fed.Reg. 77694 (December 27, 2006) (issuing ?warranted? finding and proposed listing rule for the North Pacific right whale jointly); Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Proposed Rule To Delist the Mexican Bobcat (Lynx Rufus Escuinapae), 70 Fed. Reg. 28895 (May 19, 2005) (issuing ?warranted? finding and proposed delisting rule jointly); Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Proposed Rule To List the Tibetan Antelope as Endangered Throughout Its Range, 68 Fed.Reg. 57646 (October 6, 2003) (issuing ?warranted? finding and proposed listing rule jointly). In April of 2007, in response to another lawsuit filed by the Center, the Service issued an updated finding regarding ?warranted but precluded? foreign birds. As part of that finding, the six birds at issue here were found to ?warrant? listing under the ESA. Once again though, instead of issuing the proposed rule concurrently with the finding, the Service delayed its publication of the proposed rule, this time by 8 months. The Service?s delay is contrary to the plain language, statutory structure and legislative history of the ESA. As stated by Congress in 1982, ?[t]he requirement that certain [ESA] findings be followed by ?prompt? publication in the Federal Register does not authorize the Secretary to delay decisions or actions. Use of the word ?prompt? is intended to account for the fact that the exact timing of Federal Register notices are not within the control of the Secretary.? H.R. Rep. No. 97-835, at 23-24 (1982) (Conf. Rep.), as reprinted in 1982 U.S.C.C.A.N. 2860, 2864-65. Moreover, when making a 12-month finding, the FWS can make a ?warranted but precluded? finding only if ?the immediate proposal . . . is precluded? by other listing actions. 16 U.S.C. ? 1533(b)(3)(B). In other words, if the Service makes a ?warranted? finding, the agency must then submit an ?immediate proposal? to list the species. Finally, the Service?s delay significantly undermines the ESA?s section 4 listing timelines. Section 4 only permits 12 months for an initial finding, 16 U.S.C. ? 1533(b)(3)(B), and another 12 months for the final determination. 16 U.S.C. ? 1533(b)(6)(A). Therefore, during these times, the FWS should be completing its communications with foreign governments and scientists. The ESA most certainly does not allow for an additional 8 months to complete this process, especially when, as here, the species have been unlawfully denied protections for many years under ?warranted but precluded? status. In short, once a species is found to warrant listing, the proposal must be issued within the next Federal Register cycle, not 8 months later as occurred here. B. ESA Protections for Foreign Species ESA listing provides substantial benefits to foreign species. Indeed, an entire section of the ESA is devoted to ?International Cooperation.? 16 U.S.C. ? 1537. Section 8(a) of the ESA explicitly authorizes the President to provide financial assistance for the development and management of programs in foreign countries that the Service determines to be necessary or useful for the conservation of species listed as endangered or threatened. Id. Section 8(a) also explicitly authorizes the President to place ?terms and conditions as he deems appropriate? on any financial assistance in order to ensure it is used for conservation purposes. Id. Moreover, Sections 8(b) and 8(c) of the ESA authorize the Service to encourage conservation programs for foreign endangered species, and to provide assistance for such programs in the form of personnel and the training of personnel. Id. ESA benefits for foreign species extend well beyond Section 8. The ESA restricts import and export of endangered and threatened species from the United States as well as movement and sale in interstate or foreign commerce. In fact, ESA listing provides protection in excess of that supplied by the Convention on International Trade in Endangered Species of Wild Flora and Fauna (?CITES?). See Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Proposed Rule To List the Tibetan Antelope as Endangered Throughout Its Range, 68 Fed. Reg. 57646, 57650 (October 6, 2003). U.S. agencies, in their actions abroad and at home, must work to protect listed foreign species. Section 2(c) of the ESA states that ?all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of [the conservation of endangered species and threatened species].? 16 U.S.C. ? 1531(c). Moreover, section 7 of the ESA places further restrictions on actions by U.S. agencies abroad. Section 7 requires that ?[e]ach federal agency shall . . . insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species.? 16 U.S.C. ? 1536(a)(2). Section 7 consultation is required for ?any action [that] may affect listed species or critical habitat.? 50 C.F.R. ? 402.14. Agency ?action? is defined in the ESA?s implementing regulations to include ?(c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air.? 50 C.F.R. ? 402.02. The ESA also establishes general prohibitions that apply to all endangered wildlife. These protections, pursuant to 50 CFR 17.21, in part make it illegal for any person subject to the jurisdiction of the United States to ?take? (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or to attempt any of these); import or export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered wildlife species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the ESA. Finally, ESA listing provides greater public awareness for, and greater recognition of, the status of the listed species which encourages and often results in conservation actions by foreign, federal, state, and private agencies and groups, and individuals. In other words, ESA listing puts pressure on foreign governments to use any power that they have to conserve species and their ecosystems. All of the above protections are necessary to protect foreign species from further decline but will not accrue until the listing process is complete. Therefore, it is of utmost importance that final listing for the six birds take place within the one year period prescribed by the ESA. See 16 U.S.C. ? 1533(b)(6) C. ESA Protections for the Chatham petrel, Fiji petrel, magenta petrel, Cook?s petrel, Galapagos petrel, and the Heinroth?s shearwater The Service recognizes that the Chatham petrel, Fiji petrel, and magenta petrel are all in grave danger of extinction. The Chatham petrel population ?is very small, estimated at 800-1,000 birds . . . , and is showing a decreasing population trend.? 72 Fed. Reg. at 71298. The Fiji petrel population is likewise ?very small, estimated at less than 50 birds and is showing a decreasing population trend,? and ?[t]he magenta petrel population is estimated at 120 individuals with a decreasing trend.? Id. All three birds are listed as Critically Endangered on the IUCN 2007 Redlist. See BirdLife International 2007. In: IUCN 2007. 2007 IUCN Red List of Threatened Species. <www.iucnredlist.org>. Downloaded on 12 March 2008. Moreover, as the Service points out, ?[o]nce a population is reduced below a certain number of individuals, it tends to rapidly decline towards extinction.? 72 Fed. Reg. at 71302. Given the critically small population sizes of the Chatham petrel, Fiji petrel, and magenta petrel, action on their behalf is urgently necessary if these birds are to recover from the brink. The Cook?s petrel, Galapagos petrel, and Heinroth?s shearwater also face a grave future due to threats such as habitat loss, introduced species, oil and chemical spills, and long-line fishing operations. Although these three birds do not currently face dire straits like the Chatham petrel, Fiji petrel, and magenta petrel, they nonetheless need immediate assistance if they are to fully recover from their predicament. The six birds at issue in this proposed listing rule are long overdue for ESA protection. ESA listing can only help these birds by drawing attention to their needs and providing much needed money and expertise to address the significant threats they face. The Center urges the Service to complete the final rule in a timely fashion, and certainly no later than December 17, 2008. Sincerely, Justin Augustine