[Federal Register: December 8, 2008 (Volume 73, Number 236)]
[Proposed Rules]
[Page 74427-74434]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08de08-16]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R9-IA-2008-0116; 96100-1671-000-B6]
RIN 1018-AW38
Endangered and Threatened Wildlife and Plants; Proposed Rule To
List Black-Breasted Puffleg as Endangered Throughout Its Range Under
the Endangered Species Act
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list as endangered the foreign species, black-breasted puffleg
(Eriocnemis nigrivestis--a hummingbird native to Ecuador)--under the
Endangered Species Act of 1973, as amended (Act). This proposal, if
made final, would extend the Act's protection to this species. We
intend that any final action resulting from this proposal to list this
species be as accurate and as effective as possible. Therefore, we
request from all interested parties comments or suggestions regarding
this proposed rule.
DATES: We will accept comments as indicated in the SUPPLEMENTARY
INFORMATION section that are received or postmarked on or before
February 6, 2009. We must receive requests for public hearings, in
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT
section by January 22, 2009.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R9-IA-2008-0116; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept comments by e-mail or fax. We will post all comments
on http://www.regulations.gov. This generally means that we will post
any personal information you provide us (see the SUPPLEMENTARY
INFORMATION section below for more information).
FOR FURTHER INFORMATION CONTACT: Rosemarie Gnam, Chief, Division of
Scientific Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax
Drive, Room 110, Arlington, VA 22203; telephone 703-358-1708; facsimile
703-358-2276. Persons who use a telecommunications device for the deaf
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
Public Comments
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
consider comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. If you submit a hardcopy comment that includes
personal identifying information, 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. We will post all
hardcopy comments on http://www.regulations.gov.
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 U.S. Fish and
Wildlife Service, Division of Scientific Authority, 4401 N. Fairfax
Drive, Room 110, Arlington, VA 22203; telephone 703-358-1708.
Background
Section 4(b)(3)(A) of the Act requires us to make a finding (known
as a ``90-day finding'') on whether a petition to add a species to,
remove a species from, or reclassify a species on the Federal Lists of
Endangered and Threatened Wildlife and Plants has presented substantial
information indicating that the requested action may be warranted. To
the maximum extent practicable, the finding must be made within 90 days
following receipt of the petition and published promptly in the Federal
Register. If we find that the petition has presented substantial
information indicating that the requested action may be warranted (a
positive finding), section 4(b)(3)(A) of the Act requires us to
commence a status review of the species if one has not already been
initiated under our internal candidate assessment process. In addition,
section 4(b)(3)(B) of the Act requires us to make a finding within 12
months following receipt of the petition on whether the requested
action is warranted, not warranted, or warranted but precluded by
higher priority listing actions (this finding is referred to as the
``12-month finding''). Section 4(b)(3)(C) of the Act requires that a
finding of warranted but precluded for petitioned species should be
treated as having been resubmitted on the date of the warranted but
precluded finding, and is, therefore, subject to a new finding within 1
year and subsequently thereafter until we take action on a proposal to
list or withdraw our original finding. The Service publishes an annual
notice of resubmitted petition findings (annual notice) for all foreign
species for which listings were previously found to be warranted but
precluded.
Previous Federal Action
On May 6, 1991, we received a petition (1991 petition) from Alison
Stattersfield, of International Council for Bird Preservation (ICBP),
to list 53 foreign birds under the Act, including the black-breasted
puffleg that is the subject of this proposed rule. On December 16,
1991, we made a positive 90-day finding and announced the initiation of
a status review of the species included in the 1991 petition (56 FR
65207). On March 28, 1994 (59 FR 14496), we published a 12-month
finding on the 1991 petition, along with a proposed rule to list 30
African birds under the Act, of which were from the 1991 petition. In
that document, we announced our finding that listing the remaining 38
species from the 1991 petition, including the black-breasted puffleg,
was warranted but precluded because of other listing activity.
Per the Service's listing priority guidelines (September 21, 1983;
48 FR 43098), we identified the listing priority numbers (LPNs)
(ranging from 1 to 12) for all outstanding foreign species in our 2007
ANOR (72 FR 20184), published on April 23, 2007. In that notice, the
black-breasted puffleg was designated with an LPN 2 and we determined
that listing continued to be warranted but precluded. It should be
noted that ``Table 1--Candidate Review,'' in our 2007 ANOR, erroneously
noted the black-breasted puffleg with an LPN of 3. However, the correct
LPN in 2007 was ``2,'' as was discussed in the body of the notice (72
FR 20184, p. 20197).
On January 12, 1995 (60 FR 2899), we reiterated the warranted-but-
precluded status of the remaining species from the 1991 petition, with
the publication of the final rule to list the 30 African birds. We made
subsequent warranted-but-precluded findings for all outstanding foreign
species from the 1991 petition, including the black-breasted puffleg,
as published in our annual notices of review (ANOR) on May 21, 2004 (69
FR
[[Page 74428]]
29354), and April 23, 2007 (72 FR 20184).
On January 23, 2008, the United States District Court ordered the
Service to propose listing rules for five foreign bird species, actions
which had been previously determined to be warranted but precluded: The
Andean flamingo (Phoenicoparrus andinus), black-breasted puffleg
(Eriocnemis nigrivestis), Chilean woodstar (Eulidia yarrellii), medium
tree finch (Camarhynchus pauper), and the St. Lucia forest thrush
(Cichlherminia lherminieri sanctaeluciae). The court ordered the
Service to issue proposed listing rules for these species by the end of
2008.
On July 29, 2008 (73 FR 44062), we published in the Federal
Register a notice announcing our annual petition findings for foreign
species (2008 ANOR). In that notice, we announced that listing was
warranted for 30 foreign bird species, including the black-breasted
puffleg, which is the subject of this proposed rule. The Andean
flamingo, Chilean woodstar, medium tree finch, and St. Lucia forest
thrush are the subject of separate proposed rules currently under
preparation.
Species Information
Species Description
The black-breasted puffleg, endemic to Ecuador and a member of the
hummingbird family (Trochilidae), is approximately 3.25 inches (in)
(8.5 centimeters (cm)) long (Fjelds[aring] and Krabbe 1990, p. 272;
Ridgely and Greenfield 2001a, p. 373; Ridgely and Greenfield 2001b, p.
280). The species is locally known as ``Calzadito pechinegro'' or
``Zamarrito pichinegro'' (United Nations Monitoring Programme-World
Conservation Monitoring Centre (UNEP-WCMC) 2008b, p. 1). Black-breasted
pufflegs have distinctive white leg plumage (ergo, the name
``puffleg'') and straight, black bills. Males have entirely black
upperparts, mostly black underparts, and dark steel-blue forked tails.
Females have shiny, bronze-green upper plumage, turning blue toward the
tail, with golden-green underparts (BirdLife International (BLI) 2007,
p. 1).
Taxonomy
This species was first taxonomically described by Bourcier and
Mulsant in 1852 and placed in Trochilidae as Eriocnemis nigrivestis
(BLI 2007, p. 1). According to the species database for the Convention
on International Trade in Endangered Species of Wild Fauna and Flora
(CITES), the black-breasted puffleg is also known by the synonym,
Trichilus nigrivestis (UNEP-WCMC 2008b). Both CITES and BirdLife
International recognize the species as Eriocnemis nigrivestis (BLI
2007, p. 1; UNEP-WCMC. 2008b, p. 1). Therefore, we accept the species
as Eriocnemis nigrivestis, which also follows the Integrated Taxonomic
Information System (ITIS 2008, p. 1).
Habitat and Life History
Black-breasted pufflegs prefer humid temperate and elfin forests
(Fjelds[aring] and Krabbe 1990, p. 272; Ridgely and Greenfield 2001a,
p. 373; Ridgely and Greenfield 2001b, p. 280). This habitat is
described as grassy ridges surrounded by stunted montane forest with a
dense understory (de Hoyo et al. 1999, p. 639), where Polylepis trees
(no common name) predominate (World Land Trust 2007, p. 1). Altitudinal
migrants, the species is found mainly at higher altitudes--above 10,000
feet (ft) (3,100 meters (m))--during the rainy season (November-
February) and at lower elevations 9,006-10,000 ft (2,745-3,100 m) the
rest of the year (del Hoyo et al. 1999, p. 639; Fjelds[aring] and
Krabbe 1990, p. 272). However, the species has been recorded at
elevations as low as 7,874 ft (2,400 m) up to 11,483 ft (4,570 m) (del
Hoyo et al. 1999, p. 639; Fjelds[aring] and Krabbe 1990, p. 272;
Ridgely and Greenfield 2001a, p. 374).
As recently as 1990, researchers were unaware of the puffleg's
breeding habits (Fjelds[aring] and Krabbe 1990, p. 272) and there
continues to be little information (BLI 2007, p. 1). Del Hoyo et al.
(1999, p. 639) reported that the species breeds from October to March,
producing a clutch size of 2, and that the female incubates the eggs.
Based on the species' seasonal migration (del Hoyo et al. 1999, p. 639;
Fjelds[aring] and Krabbe 1990, p. 272), breeding presumably occurs at
altitudes above 10,000 ft (3,100 m).
Their altitudinal migration coincides with the flowering of certain
plants during the rainy season, including the small rubiad tree
(Palicourea huigrensis (no common name)), which serves as its primary
nectar source (Bleiweiss and Olalla 1983, pp. 657-658; del Hoyo et al.
1999, pp. 530-531; Fjelds[aring] and Krabbe 1990, p. 272). The species
also feeds on flower nectar of other shrubs and vines, including:
Thibaudia floribunda (no common name), Disterigma sp. (no common name),
Rubus sp. (no common name), Tropaeolum sp. (no common name), and
Psychotria uliginosa (no common name) (Bleiweiss and Olalla 1983, pp.
657-658; Collar et al. 1992, pp. 516-517; del Hoyo et al. 1999, pp.
530-531; Phillips 1998, p. 21). Black-breasted pufflegs feed low in the
shrubbery along forest margins, often while perched (Fjelds[aring] and
Krabbe 1990, p. 272; Ridgely and Greenfield 2001b, p. 280). The species
will frequently perch and will infrequently alight on the ground (del
Hoyo et al. 1999, p. 639).
Historical Range and Distribution
Historically, the black-breasted puffleg inhabited the elfin
forests along the northern ridge-crests of both Volc[aacute]n Pichincha
and Volc[aacute]n Atacazo in northwest Ecuador (BLI 2007, p. 2;
Fjelds[aring] and Krabbe 1990, p. 272; Krabbe et al. 1994, p. 9). The
species appears to have been extirpated from Volc[aacute]n Atacazo
(World Land Trust 2007, p. 3). It has not been confirmed on
Volc[aacute]n Atacazo since 1902; the possible sighting of a female at
treeline (3,500 m; 11,483 ft) in 1983 has never been confirmed (BLI
2007, 2; Collar et al. 1992, p. 174; del Hoyo et al. 1999, p. 639).
Habitat loss, specifically the felling of Polylepis wood for conversion
to charcoal, was the primary cause of historical black-breasted puffleg
declines (Philips 1998, p. 21) (see Factor A). Following more than 13
years without any observation of the species, the black-breasted
puffleg was rediscovered on Volc[aacute]n Pichincha in 1993 (Phillips
1998, p. 21). The number of specimens in museum collections taken in
the nineteenth century up until 1950 is over 100, suggesting the
species was once more common (Collar et al. 1992, p. 516).
Current Range and Distribution
The black-breasted puffleg is currently known to occur only on the
north side of Volc[aacute]n Pichincha near Quito, Ecuador, in temperate
elfin forests at altitudes between 9,350 and 11,483 ft (2,850 and 3,500
m) on the (Fjelds[aring] and Krabbe 1990, p. 272; Ridgely and
Greenfield 2001a, p. 373; Ridgely and Greenfield 2001b, p. 280)
Volc[aacute]n Pichincha peaks at 15,699 ft (4,785 m) (Phillips 1998, p.
21). The current extent of the species' range is approximately 33
square miles (mi\2\) (88 square kilometers (km\2\)) (BLI 2004, p. 2;
Hirschfeld 2007, pp. 178-179).
Population Estimates
The black-breasted puffleg is currently restricted to a single
population, ranging in size from 50 to no more than 250 adult
individuals, with a declining trend (BLI 2007, p. 2; del Hoyo et al.
1999, p. 530). BirdLife International, a global organization that
consults with and assimilates information from species experts,
estimated that the species has experienced a population decline of
between 50 and 79 percent in the past 10 years, with more than 20
percent of this loss having occurred within the
[[Page 74429]]
past 5 years. This rate of decline is predicted to continue (BLI 2007,
p. 4).
Conservation Status
The black-breasted puffleg is identified as a critically endangered
species under Ecuadorian law (Ecolex 2003b, p. 36). The black-breasted
puffleg is classified as ``Critically Endangered'' in the 2006 IUCN Red
List, because it has an extremely small range and the population is
restricted to one location (BLI 2007, p. 1).
Summary of Factors Affecting the Species
Under section 4(a)(1) of the Act (16 U.S.C. 1533(a)(1)) and
regulations promulgated to implement the listing provisions of the Act
(50 CFR part 424.11), we may list a species as threatened and
endangered on the basis of five threat factors: (A) 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) inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. Listing may be warranted based on
any of the above threat factors, either singly or in combination.
Under the Act, we may determine a species to be endangered or
threatened. An endangered species is defined as a species which is in
danger of extinction throughout all or a significant portion of its
range. A threatened species is defined as a species which is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. Therefore, for the black-
breasted puffleg, we evaluated the best available scientific and
commercial information under the five listing factors to determine
whether it met the definition of endangered or threatened.
A. The Present or Threatened Destruction, Modification, or Curtailment
of the Habitat or Range
The black-breasted puffleg is currently restricted to the elfin
forests along the northern ridge-crests of the Volc[aacute]n Pichincha
in northwest Ecuador (BLI 2007, p. 2; Fjelds[aring] and Krabbe 1990, p.
272; Krabbe et al. 1994, p. 9). The species has not been confirmed in
any other known locality on Volc[aacute]n Atacazo since 1902 (BLI 2007,
2; Collar et al. 1992, p. 174). Within the current range of the black-
breasted puffleg, approximately 93 percent of the habitat has been
destroyed, and the current extent of the species' range is
approximately 88 km2 (33 mi2) (BLI 2004, p. 2;
Hirschfeld 2007, pp. 178-179).
Deforestation rates and patterns: The ridge-crests within the range
of the black-breasted puffleg are relatively level, and local settlers
have cleared the majority of forested habitat within the species' range
and converted it to potato cultivation and grazing (Bleiweiss and
Olalla 1983, p. 656; del Hoyo 1999, pp. 530-531). Some ridges are
almost completely devoid of natural vegetation, and even if black-
breasted pufflegs still occur in these areas, their numbers are most
likely quite low (BLI 2004, p. 2).
The areas outside the Yanacocha Reserve (see Refugia), but still
within the range of the black-breasted puffleg, continue to be affected
by habitat loss and fragmentation. In an analysis of deforestation
rates and patterns using satellite imagery in the western Andean slopes
of Colombia and Ecuador, Vi[ntilde]a et al. (2004, pp. 123-124) found
that from 1973 through 1996, a total of 82,924 ha (204,909 ac) of
tropical forests within the area studied were converted to other uses.
This corresponds to a nearly one-third total loss of primary forest
habitat or a nearly 2 percent mean annual rate within the study area.
More recent reports identified similar forest habitat losses in
Ecuador. Between the years 1990 and 2005, Ecuador lost a total of 2.96
million ha (7.31 million ac) of primary forest, which represents a 16.7
percent deforestation rate and a total loss of 21.5 percent of forested
habitat since 1990 (Butler 2006, pp. 1-3; FAO 2003, p. 1).
Other Anthropogenic Factors: Within the range of the black-breasted
puffleg, numerous human activities are affecting the current status of
the species, including: Clearance of forested habitat for subsistence
agriculture or commercial use or grazing (Hirschfeld 2007, pp. 178-
179); habitat destruction and alteration as a result of fire (Bird
Conservation 2005, p. 12; Goodland 2002, pp. 16-17; Hirschfeld 2007,
pp. 178-179; Phillips 1998, pp. 20-21); habitat destruction and
pollution due to oil development and distribution (Amazon Watch 2001,
pp. 1-16; Cardenas and Rodriguez 2004, pp. 355; Goodland 2002, pp. 16-
17; Hirschfeld 2007, pp. 178-179); and increased access and habitat
destruction resulting from road development (Hirschfeld 2007, pp. 178-
179). Roads create barriers to animal movement, expose animals to
traffic hazards, and increase human access into habitat, facilitating
further exploitation and habitat destruction (Hunter 1996, 158-159).
In 2001, the Ecuadorian government agreed to construct a pipeline
to transport heavy oil from the Amazon basin to Esmeraldas on the
Pacific Coast (The Mindo Working Group 2001, p. 1). The environmental
impact study revealed that the proposed route went through black-
breasted puffleg habitat (The Mindo Working Group 2001, pp. 5, 11).
Satellite mapping showed that much of the area in puffleg habitat was
already destroyed, with little remaining habitat above 2,800 m (9,186
ft). The Black-breasted Puffleg had previously been found at 3,100 m
(10,167 ft), in an upper extension from the likely unsuitable forested
zone lower down. The pipeline, as proposed, would pass through pasture
slightly above this patch and would further destroy habitat with the
construction of a road (The Mindo Working Group 2001, p. 11). The
pipeline was recently constructed, transecting every major ecosystem on
the Volc[aacute]n Pichinche, including black-breasted puffleg habitat.
The pipeline also deforested pristine habitat, making these areas more
accessible and opening them up to further human infiltration (BLI 2007,
p. 12).
Refugia: In 2001, the Yanacocha Reserve (reserve) was established
on the slopes of Volc[aacute]n Pichincha (Bird Conservation 2005, p.
12; Philips 1998, p. 20). The Reserve encompasses approximately 1,250
ha (3,100 ac), including approximately 960 ha (2,372 ac) of elfin
(Polylepis spp.) forest (Hirschfeld 2007, pp. 178-179; World Land Trust
2007, p. 1). This reserve encompasses habitat that is used seasonally
by the black-breasted puffleg, from March to July, when the species is
migrating up or down the mountain (Bird Conservation 2005, p.12; World
Land Trust 2007, p. 1). Within the reserve, charcoal production,
considered the primary cause for the species' historical decline, was
forbidden (Philips 1998, p. 21). The Yanacocha Reserve is managed for
ecotourism, environmental education, and conservation initiatives,
including restoration of the Polylepis woodland (BLI 2007, p. 8;
Fondacion Jocotoco 2006, p. 1). The Reserve is negatively affected by
human population pressures, including clearing for agricultural
expansion and fires caused by slash-and-burn agricultural practices
(Bird Conservation 2005, p. 12; Philips 1998, p. 21). Hunting,
extraction of non-timber resources (such as orchids), and tourism are
considered to have a minor impact within the Reserve (BLI 2007, p. 12).
Summary of Factor A
The black-breasted puffleg prefers elfin forests at altitudes
between 2,850-3,500 m (9,350-11,483 ft) (Fjeldsa and Krabbe 1990, p.
272; Ridgely and
[[Page 74430]]
Greenfield 2001a, p. 373; Ridgely and Greenfield 2001b, p. 280). The
current population is small and limited to a narrow elevational band on
Volc[aacute]n Pichinche, which contains fragmented, disjunct, and
isolated habitat. Although the species range is partly included in a
protected area, the habitat within the reserve continues to be altered
or disturbed by human activities. The construction of a pipeline
through black-breasted puffleg habitat led to loss and disturbance of
pristine habitat and increased human access into the area with the
development of infrastructure. Habitat destruction, alteration, and
conversion were key factors in the species' historical decline and
continue to be factors affecting the status of the species. Therefore,
we find that the present destruction, modification, and curtailment of
habitat are a threat to the black-breasted puffleg.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
In 1987, the black-breasted puffleg was listed in CITES Appendix
II, which includes species that are not necessarily threatened with
extinction, but which require regulation of international trade in
order to ensure that trade of the species is compatible with the
species' survival. International trade in specimens of Appendix-II
species is authorized through permits or certificates under certain
circumstances, including verification that trade will not be
detrimental to the survival of the species in the wild and that the
specimen was legally acquired (UNEP-WCMC 2008a, p. 1).
Since its listing in 1987, there have been five CITES-permitted
international shipments of the black-breasted puffleg, consisting of a
total of 3 specimens imported into the United States and 14 re-exported
through the United States. According to the World Conservation
Monitoring Centre trade data (UNEP-WCMC 2008c, p. 1), all of these
transactions involved the transport of specimens; 9 for scientific
purposes, 6 for commercial trade, and 2 for personal purposes. This
trade occurred between 1996 and 2002, and there has been no CITES trade
in this species since 2002 (UNEP-WCMC 2008c, p. 1). Although we are
concerned that the species' small population size (see Factor E) cannot
withstand excessive harvest, we believe that this limited amount of
international trade, controlled via valid CITES permits, is not a
threat to the species.
We are unaware of any other information currently available that
addresses the occurrence of overutilization for commercial, recreation,
scientific, or education purposes that may be affecting the black-
breasted puffleg population. As such, we do not consider
overutilization to be a threat to the species.
C. Disease or Predation
We are not aware of any occurrence of disease or predation that may
be causing a decline of the black-breasted puffleg. As a result, we do
not consider disease or predation to be a threat to the black-breasted
puffleg.
D. The Inadequacy of Existing Regulatory Mechanisms
The black-breasted puffleg is identified as a critically endangered
species under Ecuadorian law and Decree 3,516 of 2003--Unified Text of
the Secondary Legislation of the Ministry of Environment (Ecolex 2003b,
p. 36). Decree 3,516 summarizes the law governing environmental policy
in Ecuador and provides that the country's biodiversity be protected
and used primarily in a sustainable manner. Appendix 1 of Decree No.
3,516 lists the Ecuadorian fauna and flora that are considered
endangered. Species are categorized as critically endangered (En
peligro critico), endangered (En peligro), or vulnerable (Vulnerable)
(Ecolex 2003b, p. 17). Resolution No. 105 of January 28, 2000, and
Agreement No. 143 of January 23, 2003, regulate and prohibit commercial
and sport hunting of all wild bird species, except those specifically
identified by the Ministry of the Environment or otherwise permitted
(Ecolex 2000, p. 1; Ecolex 2003a, p. 1). The Ministry of the
Environment does not permit commercial or sport hunting of the black-
breasted puffleg because of its status as a critically endangered
species (Ecolex 2003b, p. 17). However, we do not consider hunting
(Factor B) to be a current threat to the black-breasted puffleg, so
this law does not reduce any threats to the species.
Ecuador has numerous laws and regulations pertaining to forests and
forestry management including: The Forestry Act (comprised of Law No.
74 of 1981--Forest Act and conservation of natural areas and wildlife
(Faolex 1981, p. 1-54)--and Law No. 17 of 2004--Consolidation of the
Forest Act and conservation of natural areas and wildlife (Faolex 2004,
pp. 1-29)); a Forestry Action Plan (1991-1995); the Ecuadorian Strategy
for Forest Sustainable Development of 2000 (Estrategia para el
Desarrollo Forestal Sostenible); and, Decree 346, which recognizes that
natural forests are highly vulnerable (ITTO 2006, p. 225). However, the
International Tropical Timber Organization considered ecosystem
management and conservation in Ecuador, including effective
implementation of mechanisms that would protect the black-breasted
puffleg and its habitat, to be lacking (ITTO 2006, p. 229).
The governmental institutions responsible for oversight appear to
be under-resourced, and there is a lack of law enforcement on the
ground. Despite the creation of a national forest plan, there appears
to be a lack of capacity to implement this plan due to insufficient
political support, unclear or unrealistic forestry standards,
inconsistencies in application of regulations, discrepancies between
actual harvesting practices and forestry regulations, the lack of
management plans for protected areas, and high bureaucratic costs. All
these inadequacies have facilitated ongoing habitat destruction, such
as widespread unauthorized logging (ITTO 2006, p. 229), forest clearing
for conversion to agriculture or grazing (Bleiweiss and Olalla 1983, p.
656; del Hoyo 1999, pp. 530-531; Hirschfeld 2007, pp. 178-179), habitat
destruction and alteration as a result of fire caused by slash-and-burn
agriculture (Bird Conservation 2005, p. 12; Goodland 2002, pp. 16-17;
Hirschfeld 2007, pp. 178-179; Phillips 1998, pp. 20-21), habitat
destruction and pollution due to oil development and distribution
(Amazon Watch 2001, pp. 1-16; BLI 2007, p. 12; C[aacute]rdenas and
Rodr[iacute]guez 2004, pp. 355; Goodland 2002, pp. 16-17; Hirschfeld
2007, pp. 178-179; The Mindo Working Group 2001, p. 1); and increased
access and habitat destruction resulting from road development
(Hirschfeld 2007, pp. 178-179). In addition, most of Ecuador's forests
are privately owned or owned by communities (ITTO 2006, p. 224) and the
management and administration of Ecuador's forest resources and forest
harvest practices is insufficient and unable to protect against
unauthorized forest harvesting, degradation, and conversion (ITTO 2006,
p. 229). Thus, Ecuadorian forestry regulations have not mitigated the
threat of habitat destruction (Factor A).
The Ecuadorian government recognizes 31 different legal categories
of protected lands (e.g., national parks, biological reserves, geo-
botanical reserves, bird reserves, wildlife reserves, etc.). Currently,
the amount of protected land (both forested and non-forested) in
Ecuador totals approximately 4.67 million ha (11.5 million ac) (ITTO
2006, p. 228). However, only 38 percent of these lands have appropriate
conservation measures in place to be considered protected areas
according to international standards (i.e., areas that are managed for
scientific study or
[[Page 74431]]
wilderness protection, for ecosystem protection and recreation, for
conservation of specific natural features, or for conservation through
management intervention (IUCN 1994, pp. 17-20). Moreover, only 11
percent have management plans, and less than 1 percent (13,000 ha
(32,125 ac)) have implemented those management plans (ITTO 2006, p.
228).
The black-breasted puffleg occurs within the Yanacocha Reserve (931
ha (2,300 ac)) at least seasonally, from March to July, as it migrates
from higher to lower altitudes (Bird Conservation 2005, p. 12; World
Land Trust 2007, p. 1). The area is being managed for ecotourism,
environmental education, and conservation initiatives, including
restoration of the Polylepis woodland (Fondacion Jocotoco 2006, p. 1).
However, within the Reserve, there are ongoing human population
pressures from expanding agriculture, along with slash-and-burn
agricultural practices (BLI 2007, p. 12) (Factor A). Thus, regulatory
mechanisms associated with protected land do not mitigate the impact of
threats from habitat destruction.
The black-breasted puffleg is listed in Appendix II of CITES (UNEP-
WCMC 2008b). CITES is an international treaty among 173 nations,
including Ecuador and the United States that entered into force in 1975
(UNEP-WCMC 2008a, p. 1). In the United States, CITES is implemented
through the U.S. Endangered Species Act (ESA). Under this law, the
Secretary of the Interior and the Secretary of Commerce were given the
joint responsibility for determining whether to place animals and
plants on the Federal list of endangered and threatened species and for
taking measures to protect and conserve the listed species. The
Secretary of the Interior has delegated the Department's responsibility
for CITES to the Director of the U.S. Fish and Wildlife Service (FWS)
and established the Scientific and Management Authorities to implement
the treaty. Under this treaty, countries work together to ensure that
international trade in animal and plant species is not detrimental to
the survival of wild populations by regulating the import, export, re-
export, and introduction from the sea of CITES-listed animal and plant
species (USFWS 2008, p. 1). However, as discussed under Factor B, we do
not consider international trade to be a threat impacting the black-
breasted puffleg. Therefore, protection under this Treaty does not
reduce any threats to the species.
Summary of Factor D
The black-breasted puffleg is protected under CITES. However,
overutilization (Factor B) is not a threat to this species. Ecuador has
adopted numerous laws and regulatory mechanisms to administer and
manage wildlife and their habitat. The black-breasted puffleg is listed
as endangered under Ecuadorian law and ranges partly within a protected
area (Yanacocha Reserve). However, on-the-ground enforcement of these
laws and oversight of the local jurisdictions implementing and
regulating activities is insufficient for these measures to be
effective in conserving the black-breasted puffleg or its habitat. As
discussed under Factor A, habitat destruction, degradation, and
fragmentation continue throughout the existing range of the black-
breasted puffleg. Therefore, we find that the existing regulatory
mechanisms, as implemented, are inadequate to mitigate the primary
threat of habitat destruction to the black-breasted puffleg.
E. Other Natural or Manmade Factors Affecting the Continued Existence
of the Species
Small Population Size: The black-breasted puffleg population has
declined as a result of habitat destruction (Bleiweiss and Olalla 1983,
pp. 656-661; Collar et al. 1992, pp. 516-517) (Factor A). A large
collection of museum specimens (over 100) suggests that the species was
more common and more widespread than the currently known populations
(BLI 2004, p. 2; Collar et al. 1994, p. 121). Between 1950 and 1993,
only three confirmed sightings of the species were made (Hirschfeld
2007, pp. 178-179). The black-breasted puffleg ranges partly within the
Yanacocha Reserve, along a narrow elevational strip between 2,440 and
3,700 m (8,000 and 12,100 ft) (Fjeldsa and Krabbe 1990, p. 272; Krabbe
et al. 1994, pp. 8-9). The total population size of the black-breasted
puffleg is estimated to range from 50 to no more than 250 adult
individuals, with the trend of all the populations being in decline
(BLI 2007, p. 2).
Small population sizes render species vulnerable to any of several
risks, including inbreeding depression, loss of genetic variation, and
accumulation of new mutations. Inbreeding can have individual or
population-level consequences, either by increasing the phenotypic
expression (the outward appearance or observable structure, function or
behavior of a living organism) of recessive, deleterious alleles or by
reducing the overall fitness of individuals in the population
(Charlesworth & Charlesworth 1987, p. 231; Shaffer 1981, p. 131).
Small, isolated populations of wildlife species are also susceptible to
demographic problems (Shaffer 1981, p. 131), which may include reduced
reproductive success of individuals and skewed sex ratios. Once a
population is reduced below a certain number of individuals, it tends
to rapidly decline towards extinction (Franklin 1980, pp. 147-148;
Gilpin and Soule 1986, p. 25; Holsinger 2000, pp. 64-65; Soul[eacute]
1987, p. 181).
Based on genetic considerations, a generally accepted approximation
of minimum viable population size is described by the 50/500 rule,
where minimum viable population size is defined as the minimum number
of individuals that is sufficient to respond over time to unexpected
environmental conditions within the species' habitat (Shaffer 1981, pp.
132-3; Soule 1980, pp. 160-162). This rule states that an effective
population (Ne) of 50 individuals is the minimum size
required to avoid imminent risks from inbreeding. Ne
represents the number of animals in a population that actually
contribute to reproduction (i.e., the number of breeding individuals),
and is often much smaller than the census, or total number of
individuals in the population (N). Furthermore, the rule states that
the long-term fitness of a population requires an Ne of at
least 500 individuals, so that it will not lose its genetic diversity
over time and will maintain an enhanced capacity to adapt to changing
conditions. Therefore, an analysis of the fitness of this population
would be a good indicator of the species' overall survivability. The
total population size of the black-breasted puffleg is estimated to be
between 50 and 249 individuals. Fifty just meets the threshold for the
minimum effective population size required to avoid risks from
inbreeding (Ne = 50 individuals). The upper limit of the
population, 249 individuals, is well below the minimum threshold
(Ne = 500 individuals) at which long-term fitness of a
population is likely to lose enough genetic diversity over time, thus
reducing its capacity to adapt to changing conditions.
The black-breasted puffleg's restricted range combined with its
small population size (BLI 2007, p. 2; del Hoyo et al. 1999, p. 639;
Fjeldsa and Krabbe 1990, p. 272; Krabbe et al. 1994, p. 9) makes the
species particularly vulnerable to the threat of adverse natural (e.g.,
genetic, demographic, or environmental) and manmade (e.g.,
deforestation, habitat alteration, wildfire) events that destroy
individuals and their habitat (Holsinger 2000, pp. 64-65; Primack 1998,
pp. 279-308;
[[Page 74432]]
Young and Clarke 2000, pp. 361-366). As such, we currently consider the
single black-breasted puffleg population to be at risk due to lack of
short- and long-term viability.
Summary of Factor E
The black-breasted puffleg is currently limited to one small
population; this reduction in range makes it vulnerable to genetic and
demographic risks that negatively impact the species' short- and long-
term viability. The species' population size has declined considerably
within the past 10 years (50-79 percent), and this rate of decline is
expected to continue. Based on this information, we have determined
that the species is particularly vulnerable to the threat of adverse
natural (e.g., genetic, demographic) and manmade (e.g., slash-and-burn
agriculture, infrastructural development) events that destroy
individuals and their habitat, and that the genetic and demographic
risks are exacerbated by the manmade factors (Factor A)
Status Determination for the Black-Breasted Puffleg
There are three primary factors impacting the continued existence
of the black-breasted puffleg: (1) Habitat destruction, fragmentation,
and degradation; (2) limited size and isolation of remaining
populations; and (3) inadequate regulatory mechanisms. The black-
breasted puffleg, a small hummingbird known to exist in one population,
occupies a narrow range of distribution, preferring temperate elfin
forests at altitudes of between 2,850 and 3,500 m (9,350 and 11,483
ft). The species is an altitudinal migrant, spending the breeding
season (November-February) in the humid elfin forest and the rest of
the year at lower elevations.
The primary threat to this species, habitat loss, has led to
widespread deforestation, and conversion of primary forests to human
settlement and agricultural uses has led to the fragmentation of
habitat throughout the range of the black-breasted puffleg and
isolation of the remaining populations. This habitat, which is already
disturbed and fragmented, continues to be altered by anthropogenic
factors such as habitat alteration, destruction, and fragmentation as a
result of agricultural development, oil development and distribution,
and road development. Although the puffleg is listed as a critically
endangered species under Ecuadorian law and part of its range occurs
within a protected area, implementation of existing regulatory
mechanisms is inadequate to protect the species (Factor D), as they
have been ineffective in curbing the primary threat to the black-
breasted puffleg, which is habitat loss or alteration (Factor A).
The total population size of the black-breasted puffleg is
estimated to range from 50 to no more than 250 adult individuals, with
a declining trend. The black-breasted puffleg's restricted range,
combined with its small population size, makes the species particularly
vulnerable to the threat of adverse natural (e.g., genetic,
demographic, or environmental) and manmade (e.g., deforestation,
habitat alteration, wildfire) events that destroy individuals and their
habitat.
We have carefully assessed the best available scientific and
commercial information regarding the past, present, and potential
future threats faced by the black-breasted puffleg. The population of
this species has declined between 50 and 79 percent in the past 10
years, with more than 20 percent of this loss having occurred within
the past 5 years, including the possible local extirpation of the
species from Volc[aacute]n Atacazo. These rates of decline are expected
to continue. Habitat destruction, alteration, conversion, and
fragmentation (Factor A) have been and continue to be factors in the
black-breasted puffleg's decline. The impacts of habitat loss are
exacerbated by the species' already small population size, making the
black-breasted puffleg particularly vulnerable to natural and human
factors (e.g., genetic isolation, wildfire, agricultural development,
increased human settlement, road development, and oil pipeline
development) (Factor E). We consider the threats to the black-breasted
puffleg to be equally present and of the same magnitude throughout the
species' current range. Based on this information, we conclude that the
black-breasted puffleg is in danger of extinction throughout all of its
range. Based on the best available scientific and commercial
information regarding the past, present, and potential future threats
faced by the black-breasted puffleg, we determine that the black-
breasted puffleg is endangered throughout its range. Therefore, on the
basis of the best available scientific and commercial information, we
are proposing to list the black-breasted puffleg as an endangered
species.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, requirements for Federal
protection, and prohibitions against certain practices. Recognition
through listing results in public awareness, and encourages and results
in conservation actions by Federal and State governments, private
agencies and groups, and individuals.
Section 7(a) of the Act, as amended, and as implemented by
regulations at 50 CFR part 402, requires Federal agencies to evaluate
their actions within the United States or on the high seas with respect
to any species that is proposed or listed as endangered or threatened,
and with respect to its critical habitat, if any is being designated.
However, given that the black-breasted puffleg is not native to the
United States, no critical habitat is being proposed for designation
with this rule.
Section 8(a) of the Act authorizes limited financial assistance for
the development and management of programs that the Secretary of the
Interior determines to be necessary or useful for the conservation of
endangered and threatened species in foreign countries. Sections 8(b)
and 8(c) of the Act authorize the Secretary to encourage conservation
programs for foreign endangered species and to provide assistance for
such programs in the form of personnel and the training of personnel.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered and
threatened wildlife. As such, these prohibitions would be applicable to
the black-breasted puffleg. These prohibitions, pursuant to 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to ``take'' (take includes: Harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or to attempt any of these)
within the United States or upon the high seas, import or export,
deliver, receive, carry, transport, or ship in interstate or foreign
commerce in the course of a commercial activity; or sell or offer for
sale in interstate or foreign commerce, any endangered wildlife
species. It also is illegal to possess, sell, deliver, carry,
transport, or ship any such wildlife that has been taken in violation
of the Act. Certain exceptions apply to agents of the Service and State
conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered and threatened wildlife species under certain
circumstances. Regulations governing permits are codified at 50 CFR
17.22 for endangered species and 17.32 for threatened species. With
regard to endangered wildlife, a permit must be issued for the
following purposes: For scientific purposes, to enhance the
[[Page 74433]]
propagation or survival of the species, and for incidental take in
connection with otherwise lawful activities.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if we receive any requests for hearings. We must receive your request
for a public hearing within 45 days after the date of this publication
in the Federal Register. Such requests must be made in writing and be
addressed to the Chief of the Division of Scientific Authority (see
ADDRESSES section). We will schedule public hearings on this proposal,
if any are requested, and announce the dates, times, and places of
those hearings at least 15 days before the first hearing.
Peer Review
In accordance with our policy, ``Notice of Interagency Cooperative
Policy for Peer Review in Endangered Species Act Activities,'' that was
published on July 1, 1994 (59 FR 34270), we will seek the expert
opinion of at least three appropriate independent specialists regarding
this proposed rule. The purpose of peer review is to ensure listing
decisions are based on scientifically sound data, assumptions, and
analysis. We will send copies of this proposed rule to the peer
reviewers immediately following publication in the Federal Register.
Required Determinations
Regulatory Planning and Review (Executive Order 12866)
The Office of Management and Budget has determined that this rule
is not significant under Executive Order 12866.
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)
We have determined that Environmental Assessments and Environmental
Impact Statements, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Act. A notice
outlining our reasons for this determination was published in the
Federal Register on October 25, 1983 (48 FR 49244).
Clarity of the Rule
We are required by Executive Orders 12866 and 12988, and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must: (a) Be logically
organized; (b) Use the active voice to address readers directly; (c)
Use clear language rather than jargon; (d) Be divided into short
sections and sentences; and, (e) Use lists and tables wherever
possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
References Cited
A complete list of all references cited in this proposed rule is
available on the Internet at http://www.regulations.gov or upon request
from the Division of Scientific Authority, U.S. Fish and Wildlife
Service (see FOR FURTHER INFORMATION CONTACT).
Author(s)
The primary author(s) of this proposed rule is the staff of the
Division of Scientific Authority, U.S. Fish and Wildlife Service (see
ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Public Law 99-625, 100 Stat. 3500; unless otherwise
noted.
2. In Sec. 17.11(h), by adding a new entry for ``puffleg, black-
breasted,'' in alphabetical order under BIRDS to the List of Endangered
and Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
---------------------------------------------------------- Historic range where endangered or Status When Critical Special
Common name Scientific name threatened listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Birds
* * * * * * *
Puffleg, black-breasted........... Eriocnemis Ecuador, South Entire............... E ......... NA NA
nigrivestis. America.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 74434]]
Dated: November 25, 2008.
H. Dale Hall,
Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-29004 Filed 12-5-08; 8:45 am]
BILLING CODE 4310-55-P