[Federal Register Volume 73, Number 236 (Monday, December 8, 2008)]
[Proposed Rules]
[Pages 74427-74434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29004]



[[Page 74427]]

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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