[Federal Register Volume 75, Number 143 (Tuesday, July 27, 2010)]
[Rules and Regulations]
[Pages 43844-43853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18018]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R9-IA-2008-0116]
[90100-1660-1FLA B6]
RIN 1018-AW38


Endangered and Threatened Wildlife and Plants; Determination on 
Listing the Black-Breasted Puffleg as Endangered Throughout its Range; 
Final Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, determine endangered 
status under the Endangered Species Act of 1973 (Act), as amended, for 
the black-breasted puffleg (Eriocnemis nigrivestis), a hummingbird 
native to Ecuador.

DATES: This rule becomes effective August 26, 2010.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. Comments and materials received, as well as 
supporting documentation used in the preparation of this rule, is 
available for public inspection by appointment during normal business 
hours at: U.S. Fish and Wildlife Service, Branch of Listing, Endangered 
Species Program, 4401 N. Fairfax Drive, Room 400, Arlington, VA 22203; 
telephone 703-358-2171.

FOR FURTHER INFORMATION CONTACT: Janine Van Norman, Chief, Branch of 
Foreign Species, Endangered Species Program, U.S. Fish and Wildlife 
Service, 4401 N. Fairfax Drive, Room 420, Arlington, VA 22203; 
telephone 703-358-2171; facsimile 703-358-1735. If you use a 
telecommunications devise for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    On May 6, 1991, we received a petition (1991 petition) from Alison 
Stattersfield, of the International Council for Bird Preservation 
(ICBP), to list 53 foreign birds under the Act, including the black-
breasted puffleg (also referred to in this rule as ``puffleg'') that is 
the subject of this final 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. 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 
Annual Notice of Review (ANOR) (72 FR 20184), published on April 23, 
2007. In that notice, the black-breasted puffleg was designated with a 
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 as having 
an LPN of 3. However, the correct LPN in 2007 was 2, as discussed in 
the body of the notice (72 FR 20184, p. 20197).

Previous Federal Action

    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 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 final rule.

Summary of Comments and Recommendations

    In the proposed rule published on December 8, 2008 (73 FR 74427), 
we requested that all interested parties submit written comments on the 
proposal by February 6, 2009. We received six comments on the proposed 
rule. We received one comment from the Center for Biological Diversity 
supporting the proposed listing, three comments were from peer 
reviewers, and two other comments were received from the public that 
contained no substantive information. We did not receive any requests 
for a public hearing.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from three knowledgeable 
individuals with scientific expertise that included familiarity with 
this species and its habitat, biological needs, and threats. We 
received responses from all three of the peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding the proposed listing 
of this species. The peer reviewers generally concurred with our 
methods and conclusions and provided additional information, 
clarifications, and suggestions to improve the final listing 
determination. Peer reviewer comments are addressed

[[Page 43845]]

in the following summary and incorporated into the final rule as 
appropriate.

Peer Reviewer Comments

    (1) Comment: One commenter indicated that climate change, mining 
concessions, and competition from an Ecuadorian hummingbird, the 
gorgeted sunangel (Heliangelus strophianus), are threats that were not 
adequately addressed in the proposed rule.
    Our Response: We agree that these issues were not adequately 
addressed and therefore, have addressed these potential threats in the 
analysis below. Climate change and interspecific competition are 
addressed in the Factor E analysis. Mining impacts are addressed in the 
Factor A analysis under Other Anthropogenic Factors.
    (2) Comment: One peer reviewer indicated that while the science in 
our proposed rule is generally correct, more recent research had been 
conducted and pointed out recent research papers. The peer reviewer 
also provided more recent information on where the species is currently 
found.
    Our Response: We addressed this comment in the analysis below by 
updating information such as the species' physical description, habitat 
specifics, current sightings and distribution, and food preferences. We 
incorporated this new research (e.g., a small number of references 
pertaining to life history) where appropriate.
    (3) Comment: Two peer reviewers indicated that the population 
estimate used in the proposed rule is low; they suggested that the 
population estimate is more likely between 250 and 999 individuals.
    Our Response: We agree and have addressed this in the Population 
Estimate section and analysis below.
    (4) Comment: Commenters suggested that the population trends 
estimate used in the proposed rule is not based on current data and 
that the estimate should be correlated with habitat loss based on the 
species' current known locations.
    Our Response: We have updated the trends estimate based on more 
recently available data. Therefore, the final rule incorporates the 
most current and best available information.
    (5) Comment: Peer reviewers suggested that we update the 
information on the species' food base.
    Our Response: We agree and have updated this information in the 
Species Information, Habitat and Life History section below.

Summary of Changes from Proposed Rule

    Several changes were made to update or correct the taxonomy, 
biology, and life history of the species, and current areas where the 
species has been sighted. The taxonomy section has been corrected to 
indicate the correct taxonomic history for this species. Bourcier & 
Mulsant (1852) first described black-breasted puffleg as Trochilus 
nigrivestis rather than Eriocnemis nigrivestis, as erroneously 
indicated in the proposed rule. Additionally, one peer reviewer 
clarified that the species' principal habitat is not necessarily 
Polyleps forest. During 2007 field work mentioned in the 2008 Species 
Action Plan for the black-breasted puffleg (Jahn and Santander 2008), 
researchers only found the species in habitat other than Polylepis 
forest; therefore, we have updated this information and incorporated it 
into the analyses. The species' current known range has been updated to 
include recent sightings.
    Based on new information, we also revised the threats analysis 
under factor A with respect to the construction of a pipeline being 
constructed from the Amazon basin to Esmeraldas that was thought to be 
in black-breasted puffleg habitat. We also updated the Factor E 
analysis to include synergistic effects of El Ni[ntilde]o and 
deforestation.

Species Information

Species Description

    The black-breasted puffleg is endemic to Ecuador and is a member of 
the hummingbird family (Trochilidae). It is approximately 3.25 inches 
(in) (8.5 centimeters (cm)) long (Fjeldsa 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 ProgrammeWorld 
Conservation Monitoring Centre (UNEP-WCMC) 2008b, p. 1). The Black-
breasted puffleg has distinctive white leg plumage (ergo, the name 
``puffleg''), but is distinctive among other species of pufflegs due to 
a small, shiny blue ``gorget'' (coloration below the throat area). 
Males have entirely black upperparts, mostly blackish green underparts, 
and dark steel-blue forked tails. Females have shiny, green upper 
plumage, turning blue toward the tail, with golden-green underparts 
(BirdLife International (BLI) 2007, p. 1). As with other puffleg 
hummingbirds, it has a straight black bill.

Taxonomy

    This species was first taxonomically described by Bourcier and 
Mulsant in 1852 and placed in Trochilidae as Trochilus nigrivestis (BLI 
2009, p. 1). According to the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES) species database, 
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). The Service follows the Integrated Taxonomic 
Information System (ITIS 2008, p. 1) which also recognizes the species 
as Eriocnemis nigrivestis; therefore, we accept the species as 
Eriocnemis nigrivestis.

Habitat and Life History

    Black-breasted pufflegs prefer humid high-Andean montane forest 
such as elfin forests (generally forests at high elevations which 
contain stunted trees) and forest borders (Fjeldsa and Krabbe 1990, p. 
272; Jahn 2008, p. 29; Ridgely and Greenfield 2001a, p. 373; Ridgely 
and Greenfield 2001b, p. 280). This habitat is described as wet cloud 
forest: Grassy ridges surrounded by stunted montane forest with a dense 
understory (de Hoyo et al. 1999, p. 639). Altitudinal migrants, the 
species is found between 6,791 and 11,483 feet (ft) (2,070 - 4,570 
meters (m)) (del Hoyo et al. 1999, p. 639; Fjeldsa and Krabbe 1990, p. 
272; Lyons and Santander, 2006, p. 1; Ridgely and Greenfield 2001a, p. 
374). During the rainy season (November-February) the species is found 
mainly at higher altitudes above 10,000 ft (3,100 m). It is found at 
lower elevations 9,006-10,000 ft (2,745-3,100 m) primarily between 
April and September (Fjeldsa and Krabbe 1990, p. 272; del Hoyo et al. 
1999, p. 639). The species' preferred habitat is mixed forest and 
forest edges dominated by Ericacea plants at high elevations (Guevara, 
pers. comm., Jahn 2008, p. 34, Santander et al. 2004, pp. 8-9).
    Most pufflegs, including the black-breasted puffleg, are considered 
to be generalist feeders (pollinators) (Ross and Allmon 1990, pp. 356-
357). The black-breasted puffleg altitudinal migration coincides with 
the flowering of certain plants during the rainy season. Palicourea 
huigrensis and Macleania rupestris (commonly referred to as chamburo, 
chaquilulo, choglon, chupa lulun, colca macho, gualicon, hualicon 
llucho, joyapa, quereme, sagalita, and yurac joyapa (New York Botanical 
Garden 2009)) are commonly distributed

[[Page 43846]]

throughout the species' habitat. The species has been frequently 
observed using Palicourea huigrensis (no common name (NCN)) as its 
primary nectar source (Bleiweiss and Olalla 1983, pp. 657-658; del Hoyo 
et al. 1999, pp. 530-531; Fjeldsa and Krabbe 1990, p. 272). The species 
also feeds on flower nectar of other shrubs and vines, including: 
Thibaudia floribunda (NCN), Disterigma sp. (NCN), Rubus sp. (NCN), 
Tropaeolum sp. (NCN), and Psychotria uliginosa (NCN) (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). The species has been 
observed feeding from at least 29 different plant species, including 8 
species of Ericaceae (Jahn and Santander 2008, p. 21). Black-breasted 
pufflegs feed low in the shrubbery along forest margins, often while 
perched (Fjeldsa and Krabbe 1990, p. 272; Ridgely and Greenfield 2001b, 
p. 280).
    As recently as 1990, researchers were unaware of the puffleg's 
breeding habits (Fjeldsa 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 two, and that the female incubates the eggs. Based on 
the species' seasonal migration (del Hoyo et al. 1999, p. 639; Fjeldsa 
and Krabbe 1990, p. 272), breeding presumably occurs at altitudes above 
10,000 ft (3,100 m).

Historical Range and Distribution

    Historically, the black-breasted puffleg inhabited the elfin 
forests along the northern ridge-crests of both Volcan Pichincha and 
Volcan Atacazo in northwest Ecuador (BLI 2007, p. 2; Fjeldsa and Krabbe 
1990, p. 272; Krabbe et al. 1994, p. 9). Habitat loss has been the 
primary cause of black-breasted puffleg decline (Philips 1998, p. 21, 
Santander 2004, pp. 10-17) (see Factor A). The number of specimens in 
museum collections taken in the 19th century up until 1950 is over 100, 
suggesting the species was once more common (Collar et al. 1992, p. 
516). The species appears to have been extirpated from Volcan Atacazo, 
but this has not been verified (World Land Trust 2007, p. 3). On Volcan 
Atacazo, its presence has not been confirmed since 1902. There was a 
possible sighting of a female at treeline (11,483 ft; 3,500 m) in 1983 
but it has never been confirmed (BLI 2007, 2; Collar et al. 1992, p. 
174; del Hoyo et al. 1999, p. 639). Confirmation of the species on 
Volcan Atacazo has not been possible because there is a single 
landowner and access to the area has not been allowed to confirm 
existence of the species (Jahn 2008, pers. comm.). Following more than 
13 years without any observation of the species, the black-breasted 
puffleg was rediscovered on Volcan Pichincha in 1993 (Jahn 2008, p. 33; 
Phillips 1998, p. 21).

Current Range and Distribution

    Currently, the black-breasted puffleg is known to occur in 
definitely two, but possibly four, reserves all located north of Quito, 
Ecuador. The first area is the Yanacocha Reserve on the north side of 
Volcan Pichincha, approximately 12 miles (mi) (20 kilometers (km)) 
north of Quito. The second area where it is known to occur is in the 
Cotacachi-Cayapas Ecological Reserve (below Cayapachupa in the 
Cordillera (mountain range) de Toisan), which is 87 mi (140 km) north 
of Quito (Jahn 2008, pers. comm.). Currently the Yanacocha Reserve 
encompasses approximately 3,300 acres (ac) (1,300 hectares (ha) 
(WorldLand Trust 2009). A third area where it may occur is in a private 
reserve, Las Gralarias. This reserve is located in the Pichincha 
Province, two hours northwest of Quito, where this species was sighted 
in 2005 and 2006 (Lyons and Santander, 2006, pp. 1-2; Schwartz 2006, as 
cited in Hull 2009, p. 1). Las Gralarias is a 400ac (162ha) reserve, at 
an elevation of 5,873 7,776 ft (1,790 2,370 m), the lowest elevation at 
which a black breasted puffleg has been seen. Another sighting of this 
species occurred in 2007 in a fourth location, at Hacienda Verdecocha, 
a private reserve adjacent to the Yanacocha Reserve. Hacienda 
Verdecocha is approximately 2,396 ac (970 ha) and likely contains 
black-breasted puffleg habitat (Jahn 2008, p. 33; Jahn & Santander 
2008, p. 10). It is unclear whether the birds at the Yanacocha Reserve 
and the Hacienda Verdecocha Reserve are the same population. The 
species' current existence at one other potential location (Volcan 
Atacazo, approximately 15 mi (25 km) southwest of Quito) has not been 
verified for over 100 years.
    The species occurs in temperate elfin forests, generally at 
altitudes between 6,791 and 11,483 ft (2,070 - 4,570 m) (Fjeldsa and 
Krabbe 1990, p. 272; Jahn & Santander 2008, p. 10; Ridgely and 
Greenfield 2001a, p. 373; Ridgely and Greenfield 2001b, p. 280). Volcan 
Pichincha, where the species is known to occur, peaks at 15,699 ft 
(4,785 m) (Phillips 1998, p. 21). The current extent of the species' 
range is believed to be between 27 mi\2\ (70 km\2\) and 54 mi\2\ (139 
km\2\) (BLI 2009; Jahn & Santander 2008, p. 8). This considers the 
suitable habitat in two locations where the species is believed to 
occur based on the best available information (BLI 2009, p. 1). 
However, its range may be somewhat larger due to recent sightings in 
other protected areas, and also because it may also exist in other 
suitable locations where it has not been sighted (Guevara 2009 pers. 
comm., Jahn & Santander 2008, pp. 21-23).

Population Estimates

    The black-breasted puffleg is believed to be restricted to two to 
three subpopulations (Hacienda Verdecocha is adjacent to the Yanacocha 
Reserve so that is likely one combined population). Its total 
population size ranges from 200 to 270 individuals, with a declining 
trend (BLI 2009, p. 1; Jahn 2008, p. 35). Recent research suggested 
that a more accurate estimate may be 250-999 individuals (Jahn and 
Santander 2008, p. 19); however, there are no supporting data for this 
estimate at this time. One additional subpopulation may exist on Volcan 
Atacazo (Jahn and Santander 2008, p. 35), although it has not been 
documented. 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 past 5 years. (BLI 2007, p. 4). This rate of 
decline is predicted to continue (BLI 2009, p. 1).

Conservation Status

    The black-breasted puffleg is protected by various Federal, local, 
and international means. It is identified as a critically endangered 
species under Ecuadorian law (Rodriguez 2002, p. 91). This species is 
also classified as ``Critically Endangered'' in the 2009 International 
Union for Conservation of Nature (IUCN) Red List. It has an extremely 
small range, and the population is restricted to possibly two or three 
locations (BLI 2009, p. 1, Jahn and Santander 2008, p. 10). Critically 
endangered is IUCN's most severe category of extinction assessment, 
which equates to extremely high risk of extinction in the wild. IUCN 
criteria include rate of decline, population size, area of geographic 
distribution, and degree of population and distribution fragmentation. 
BirdLife International (BLI), which is cited throughout this document, 
is the authority for birds on the IUCN Red List. The black-breasted 
puffleg was listed on Appendix II of CITES on October 22, 1998. 
Additionally, in 2005, the mayor of Quito, Ecuador, designated the 
puffleg as its emblem. Lastly, several private reserves provide 
protection to this

[[Page 43847]]

species. Yanacocha Reserve, managed by Fundacion Jocotoco, a private 
nongovernmental organization in Ecuador, was established around 2001 
specifically to protect this species. The Yanacocha Reserve is managed 
for ecotourism, environmental education, and conservation initiatives.

Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR 424) 
set forth the procedures for adding species to the Federal Lists of 
Endangered and Threatened Wildlife and Plants. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1) of the Act: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence. The five-factor 
analysis under the Act requires an analysis of current and future 
potential impacts to the species. Listing actions may be warranted 
based on any of the above threat factors, singly or in combination. 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. Each of these factors is 
discussed below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range

    The black-breasted puffleg occurs on volcanic mountain ranges 
restricted to elfin forests along the northern ridge-crests within 87 
miles (140 km) northwest of Quito, Ecuador (BLI 2007, p. 2; Fjeldsa and 
Krabbe 1990, p. 272; Krabbe et al. 1994, p. 9). The species has not 
been confirmed on Volcan Atacazo since 1902 (BLI 2007, 2; Collar et al. 
1992, p. 174), although it may have been sighted there in 1983 (Jahn 
2008, p. 33). The species occurs at altitudes between 6,791 and 11,483 
ft (2,070 - 4,570 m) (Fjeldsa and Krabbe 1990, p. 272; Jahn & Santander 
2008, p. 10, Ridgely and Greenfield 2001a, p. 373; Ridgely and 
Greenfield 2001b, p. 280, Santander 2008, p. 33). 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 54 mi\2\ (139 km\2\) ((BLI 2009, p. 1; 
Hirschfeld 2007, pp. 178-179; Jahn & Santander 2008, p. 8). Threats 
include human population pressures such as clearing for agricultural 
expansion and fires caused by slash-and-burn agricultural practices 
(Jahn and Santander 2008, p. 24).
    Habitat loss due to deforestation is the primary cause of black-
breasted puffleg declines (BLI 2009, p. 1; Philips 1998, p. 21). 
Current threats consist primarily of deforestation due to use by local 
people for firewood, charcoal, and agriculture (BLI 2009, p 2). 
Deforestation activities also include clearance of forested habitat for 
commercial use or grazing (Hirschfeld 2007, pp. 178-179). Habitat 
destruction and alteration also occur as a result of intentional fires 
to convert forested areas to pasture or cropland (Goodland 2002, pp. 
16-17; Hirschfeld 2007, pp. 178-179; Phillips 1998, pp. 20-21).
    Deforestation rates and patterns: The conversion of habitat 
significantly increased between 1996 and 2001 compared with the period 
between 1982 and 1996. The ridge-crests within the range of the black-
breasted puffleg are relatively level. Local settlers have cleared the 
majority of forested habitat within the species' range for timber 
products (charcoal production) or converted it to potato cultivation 
and grazing (BLI 2009, p. 2, 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 2009, p. 2). 
Within the species' range, aerial photographs of the northern and 
western slopes of Volcan Pichincha between 1982 and 2001 showed a 
continued loss of forested area, while agricultural area increased by 
24 percent (Santander 2004, p. 10).
    The areas outside of Reserves (see Refugia) but still within the 
range of the black-breasted puffleg continue to be affected by habitat 
loss and fragmentation. An analysis of deforestation rates and patterns 
using satellite imagery in the western Andean slopes of Colombia and 
Ecuador was conducted. Researchers 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 (Vi[ntilde]a et al. 2004, pp. 123-
124). 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 7.31 
million ac (2.96 million ha) 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: Habitat destruction and pollution due 
to oil development and distribution (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) have been indicated as other threats to this species' habitat. In 
the proposed rule, we discussed that, in 2001, the Ecuadorian 
government agreed to construct a pipeline to transport heavy oil from 
the Amazon basin to Esmeraldas on the Pacific Coast (Goodland 2002, pp. 
16-17). The environmental impact study (EIS) conducted in 2001 revealed 
that the proposed route went through black-breasted puffleg habitat 
(Goodland 2002, pp. 16-17). However, the EIS was done almost 10 years 
ago. More recent satellite mapping shows that much of the area that was 
previously puffleg habitat is already destroyed, with little habitat 
remaining above 9,186 ft (2,800 m). The puffleg is found at lower 
elevations 9,006-10,000 ft (2,745-3,100 m) primarily between April and 
September. However, the species is found mainly at higher altitudes 
10,000 ft (3,100 m) above the altitude at which the pipeline was 
constructed. Although this pipeline was constructed, this occurred in 
the past and is not a current or future threat.
    The pipeline may pass through suitable puffleg habitat on the 
northwestern slope of Volcan Pichincha (Jahn and Santander 2008, p. 
17). However this pipeline, in terms of its construction, is not a 
significant threat impacting the black-breasted puffleg because the 
pipeline construction already occurred. There is no indication that any 
other pipelines will be constructed in the black-breasted puffleg's 
range. There is the potential for oil spill leaks, but the threat of 
this is minimal. Because the species is found mainly at higher 
altitudes in reserves above the altitude of the pipeline, the puffleg 
habitat that potential oil spill leaks would likely affect is small. 
Therefore, we find that neither the pipeline, nor habitat destruction 
and pollution due to oil development are current or future threats to 
this species.
    Mining was suggested to be a threat to this species by a peer 
reviewer; however, mining has not been found to be a threat to this 
species (also see Factor D). Mining has been controversial in Ecuador 
and there has been pressure from foreign mining companies to allow 
mining for resources such as copper and diamonds. In March 2009, 
shortly after

[[Page 43848]]

Ecuador's new mining law was enacted, the Confederation of Indigenous 
Nationalities of Ecuador (CONAIE) filed a lawsuit stating that the 
country's new mining law is unconstitutional because it failed to 
consult with indigenous organizations whose territories will be 
affected by a proposed activity (CONAIE 2009). Although the mining law 
is being disputed, mining may be allowed for resources in Junin and 
Zamora, Ecuador, to the west and southwest of Quito (Ecuador Mining 
News 2009, Ecometals Ltd 2009). However, mining is not allowed in the 
two to three reserves where the black-breasted puffleg is currently 
believed to exist. CONAIE, is working diligently to ensure that mining 
does not occur (CONAIE 2009, Earthworks 2009). Mining does not appear 
to be a major factor impacting the black-breasted puffleg; therefore, 
we have determined that mining is not a threat to the species.
    We evaluated roads as a potential threat to the species. The 
existing subpopulations of black-breasted puffleg appear to be 
concentrated in protected areas (see Refugia below), which are not 
currently threatened by roads. Roads can destroy habitat, facilitate 
invasion by exotic species, expose birds to traffic hazards, and 
increase human access into habitat, facilitating further exploitation 
and habitat destruction (Hunter 1996, pp. 158-159). However, in this 
case, roads do not appear to be a major factor impacting the black-
breasted puffleg; therefore, we have determined that roads are not a 
threat to the species.
    Refugia: Although reserves exist to protect species, reserves can 
also bring with them unintended consequences. Reserves may have 
repercussions, such as the potential to initiate additional road 
development through species' habitat, and increase pressures on 
species' habitat from tourism (such as the increase in pollution, 
trash, and other waste). Reserves may also increase pressure to 
surrounding habitat by locals who supplement their income through 
ecotourism, but who also may use the land detrimentally as described 
under factor A (Stem et al. 2003, pp. 322-347; Pitts 2010, pp. 86, 
197). Reserves, with their increased tourism, can also cause an 
increase in invasive species (FAO 2010, p. 1).
    Several reserves exist with a primary intention of protecting this 
species. In the proposed rule, we found that Yanacocha Reserve was 
negatively affected by human population pressures, including clearing 
for agricultural expansion and fires caused by slash-and-burn 
agricultural practices (Philips 1998, p. 21). Hunting, extraction of 
nontimber resources (such as orchids), and tourism were considered to 
have a minor impact within the Reserve (BLI 2007, p. 12). However, the 
best available information now indicates that if these practices still 
occur, they (1) occur outside of the reserves and (2) they do not occur 
to the degree that they threaten the continued or future existence of 
the species.

Summary of Factor A

    The black-breasted puffleg prefers humid high-Andean montane 
forests at altitudes between 6,791 and 11,483 ft (2,070 - 4,570 m) 
(Jahn 2008, p. 10; Ridgely and Greenfield 2001a, p. 373; Ridgely and 
Greenfield 2001b, p. 280). The current populations are small and 
limited to a narrow elevational band in the volcanic mountains 
generally to the north of Quito, existing in fragmented, disjunct, and 
isolated habitat. Although the species' range is partly in at least two 
protected areas, the habitat around the reserves continues to be 
altered and destroyed by human activities. Further, some of the 
protected areas are private reserves which are not officially 
recognized by the Ministry of Environment (Jahn and Santander 2008, p. 
9), and their long term protection is not guaranteed. Efforts are under 
way to restore and protect more suitable habitat for the species (Jahn 
2008, p. 28). Outside of its refugia, the areas around the reserves is 
somewhat negatively affected by tourism, local human pressures, roads, 
and invasive species associated with the reserves. Nevertheless, we 
find that unintended consequences of refugia are not a threat to the 
species. However, habitat destruction, alteration, and conversion are 
key factors in the species' historical decline and continue to be 
factors negatively affecting the status of the species outside of the 
Reserves where this species is found. Therefore, based on the best 
available information, we find that the present destruction, 
modification, and curtailment of habitat is a significant threat to the 
black-breasted puffleg.

B. Overutilization for commercial, recreational, scientific, or 
educational purposes

    In 1987, the black-breasted puffleg was listed on Appendix II of 
CITES. CITES is an international agreement between governments to 
ensure that the international trade of CITES-listed plant and animal 
species does not threaten species' survival in the wild. There are 
currently 175 CITES Parties (member countries or signatories to the 
Convention). Under this treaty, CITES Parties (signatories to the 
Convention) regulate the import, export, and re-export of CITES-
protected plants and animal species (also see Factor D). Trade must be 
authorized through a system of permits and certificates that are 
provided by the designated CITES Scientific and Management Authorities 
of each CITES Party (CITES 2007). In the United States, the U.S. Fish 
and Wildlife Service serves as the Scientific and Management 
Authorities.
    CITES provides varying degrees of protection to more than 32,000 
species of animals and plants that are traded as whole specimens, 
parts, or products. Under CITES, a species is listed at one of three 
levels of protection (i.e., regulation of international trade), which 
have different permit requirements (CITES 2007). Appendix II includes 
species requiring 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 
when the permitting authority has determined that the export will not 
be detrimental to the survival of the species in the wild and that the 
specimens to be exported were legally acquired (UNEP-WCMC 2008a, p. 1).
    At times a species may be listed as endangered under the U.S. 
Endangered Species Act, and concurrently listed under Appendix II of 
CITES, rather than the more restrictive Appendix I, which does not 
allow commercial trade of wild specimens. Although CITES Appendix II 
allows for commercial trade, in order for specimens of this species to 
be traded internationally (i.e., exported from its country of origin), 
a determination has to be made that (1) The export will not be 
detrimental to the survival of the species in the wild and (2) the 
specimen was legally acquired. In this case, it is unlikely that a 
determination could be made that the export would not be detrimental to 
the survival of the species in the wild.
    Between the time the puffleg was listed in CITES in 1987 and 2010, 
there were 5 CITES-permitted international shipments containing 17 
specimens of the black-breasted puffleg. These shipments occurred 
between 1996 and 2002 (UNEP-WCMC 2008c, p. 1). According to the World 
Conservation Monitoring Centre trade data (UNEP-WCMC 2008c, p. 1), all 
of the CITES transactions involved the transport of dead specimens. 
Nine were traded for scientific purposes, six for commercial purposes, 
and two were for personal use. Trade involving the United States 
included three specimens that were imported into the United States and 
seven that were reexported from the United States.

[[Page 43849]]

    Even though this species is listed under Appendix II of CITES, and 
commercial trade is allowed, we believe that international trade 
controlled via valid CITES permits is not a threat to the species. 
CITES adequately regulates international trade because the export of 
Appendix II species requires the determination that the export will not 
be detrimental to the survival of the species in the wild. Therefore, 
we find that international trade does not pose 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. There is no known historic or cultural use of this 
species by local populations. 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. These include: 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. There appears to be 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 failed to prevent 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 (Goodland 2002, pp. 
16-17; Hirschfeld 2007, pp. 178-179; Phillips 1998, pp. 20-21); 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). 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.). As of 
2006, the amount of protected land (both forested and non-forested) in 
Ecuador totaled approximately 11.5 million ac (4.67 million ha) (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. The standards define these areas 
as areas that are managed for scientific study or 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 in only a few reserves (BLI 2009, 
p. 2; Jahn and Santander 2008, p. 33; Santander, et al. 2004, p. 1; 
World Land Trust 2007, p. 1) in the Pichincha mountain range. Some of 
the area is being managed for ecotourism, environmental education, and 
conservation initiatives, including restoration (Fundacion Jocotoco 
2006, p. 1). However, outside of the Reserves, there are ongoing human 
population pressures from expanding agriculture, along with slash-and-
burn agricultural practices (BLI 2009, pp. 1-2) (Factor A). Thus, while 
black-breasted puffleg habitat is being protected in several relatively 
small government and privately owned reserves, regulatory mechanisms 
associated with protected land do not mitigate the impact of threats to 
the species' habitat from habitat loss and destruction.
    The black-breasted puffleg is listed on Appendix II of CITES. 
CITES, an international treaty among 175 nations, including Ecuador and 
the United States, entered into force in 1975. In the United States, 
CITES is implemented through the U.S. Endangered Species Act (ESA). The 
Secretary of the Interior has delegated the Department's responsibility 
for CITES to the Director of the U.S. Fish and Wildlife Service (USFWS) 
and established the CITES Scientific and Management Authorities to 
implement the treaty. Under this treaty, member 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, and re-export of CITES-listed animal and plant species 
(USFWS 2008, p. 1). As discussed under Factor B, we do not consider 
international trade to be

[[Page 43850]]

a threat impacting the black-breasted puffleg. Therefore, protection 
under this Treaty is an adequate regulatory mechanism.

Summary of Factor D

    Ecuador has adopted numerous laws and regulatory mechanisms to 
administer and manage its wildlife, such as the black-breasted puffleg 
and its habitat. Under Ecuadorian law, the black-breasted puffleg is 
listed as endangered and ranges partly within two to three protected 
areas. As discussed under Factor A, habitat destruction, degradation, 
and fragmentation continue throughout the existing range of the black-
breasted puffleg. With respect to CITES, we found that CITES is an 
adequate regulatory mechanism with respect to international trade or 
overutilization (Factor B), and is not a threat to this species. 
However, on-the-ground enforcement of Ecuador's laws and oversight of 
the local jurisdictions implementing and regulating activities 
destructive to the species' habitat are insufficient in conserving the 
black-breasted puffleg or its habitat. Therefore, we find that the 
existing regulatory mechanisms, as implemented, are inadequate to 
either eliminate or 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

    Interspecific Competition: One peer reviewer suggested that another 
species of hummingbird, the gorgeted sunangel (Heliangelus 
strophianus), may be a potential threat (Jahn 2008, pp. 34, 36-37) to 
the black-breasted puffleg. This species occupies a similar ecological 
niche and may be moving northward into the black breasted puffleg's 
habitat due to loss of suitable habitat. The gorgeted sunangel consumes 
similar plant species and is slightly larger in size than the black-
breasted puffleg. Only one aggressive interaction between the species 
has been observed; however, they both aggressively defend their 
territories (Guevara 2009, pers. comm.). Loss of the gorgeted 
sunangel's habitat may exacerbate the threat posed to the puffleg in 
the form of competition from the gorgeted sunangel moving upward in 
altitude into the black-breasted puffleg's range.
    Small, Declining Population Size: The black-breasted puffleg 
population has declined primarily as a result of habitat loss 
(Bleiweiss and Olalla 1983, pp. 656-661; BLI 2009, p. 1; Collar et al. 
1992, pp. 516-517) (Factor A). A collection of over 100 museum 
specimens 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). The black-breasted puffleg inhabits a narrow elevational 
strip between 6,791 and 11,483 ft (2070 - 4570 m) (BLI 2010, p 1; 
Fjeldsa and Krabbe 1990, p. 272; Krabbe et al. 1994, pp. 8-9). Within 
the species' range, aerial photographs of the northern and western 
slopes of Volcan Pichincha between 1982 and 2001 showed a continued 
loss of forested area while agricultural area increased by 24 percent 
(Santander, et. al. 2004, p. 10). As indicated above, the current 
extent of the species' range is believed to be between 27 mi\2\ (70 
km\2\) and 54 mi\2\ (139 km\2\). The total population is currently 
estimated to be 200-270 individuals, and believed to be in decline (BLI 
2010, p. 1).
    Rare species (i.e., species with small population sizes or 
restricted ranges) may be vulnerable to a variety of stochastic 
processes that can affect their risk of extinction on various 
timescales. Whether a rare species may meet the definition of a 
threatened or an endangered species under the Act depends on the 
potential threats involved, the probable timescale of the potential 
threat, and the characteristics of the species and its habitat. Factors 
can include the species' dependence on a specific habitat type and its 
inability to move away from a stressor or habitat degradation. Although 
the Trochilinae hummingbirds tend to be food generalists (Ross and 
Allmon 1990, pp. 356-357), the black-breasted puffleg is restricted to 
a small geographic range. Rare species such as this puffleg that are 
experiencing declining populations and threats are particularly 
vulnerable to risks such as 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 can tend to rapidly decline towards extinction 
(Franklin 1980, pp. 147-148; Gilpin and Soule 1986, p. 25; Holsinger 
2000, pp. 64-65; Soule 1987, p. 181).
    The black-breasted puffleg's restricted range, combined with its 
small, declining population (BLI 2009, unpaginated; 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, fire) events that destroy 
individuals and their habitat (Harris and Pimm, 2008, p. 164; Holsinger 
2000, pp. 64-65; Primack 1998, pp. 279-308; Young and Clarke 2000, pp. 
361-366). Due to lack of short- and long term viability of its existing 
population, we consider the black-breasted puffleg to be at risk of 
extinction.
    Climate Change: The Intergovernmental Panel on Climate Change 
(IPCC) was established in 1988 by the World Meteorological Organization 
and the United Nations Environment Program in response to growing 
concerns about climate change and, in particular, the effects of global 
warming. Although the extent of warming likely to occur is not known 
with certainty at this time, the IPCC has concluded that warming of the 
climate is unequivocal, and that continued greenhouse gas emissions at 
or above current rates will cause further warming (Meehl et al. 2007, 
p. 749). Eleven of the 12 years from 1995 through 2006 rank among the 
12 warmest years in the instrumental record of global surface 
temperature since 1850 (IPCC 2007). Climate-change scenarios estimate 
that the mean air temperature could increase by more than 3 [deg]C (5.4 
[deg]F) by 2100 (IPCC 2007, p. 46). We recognize that there are 
scientific differences of opinion on many aspects of climate change, 
including the role of natural variability in climate. We rely primarily 
on synthesis documents (e.g., IPCC 2007) that present the consensus 
view of a very large number of experts on climate change from around 
the world. We have found that these synthesis reports, as well as the 
scientific papers used in those reports or resulting from those 
reports, represent the best available scientific information we can use 
to inform our decision.
    However, climate change models that are currently available are not 
yet able to make meaningful predictions of climate change for specific, 
local areas (Parmesan and Matthews 2005, p. 354). We do not have models 
to predict how the climate in the range of this bird species will 
change, and we do not know how any change that may occur would affect 
these species. However,

[[Page 43851]]

models and research suggest that climate change is an additional stress 
for species such as the black breasted puffleg that are already 
threatened by other environmental changes to their habitats (McCarty 
2001, p. 325; Brook et al 2008, pp. 453-454). Warming has been 
predicted to occur to a greater degree in the higher altitudes than in 
the lower altitudes (Bradley 2006, p. 1). Although we do not find that 
climate change, in and of itself, is a threat to the species, a 
discussion of the synergistic effects of El Ni[ntilde]o, deforestation, 
and drought follows.
    Regional and localized models are less prevalent and sometimes 
absent with respect to climate change. Research has been conducted with 
respect to the interactions between El Ni[ntilde]o and deforestation 
and how it affects montane cloud forests (Laurance 1998, p. 413, 
Laurance and Williamson 2001, p. 1529; Still 1999, p. 608). From this 
research, we can predict how increases in temperature due to climate 
change may subsequently interact with other stressors. In ecosystems 
such as the one where the black breasted puffleg exists, mountains are 
frequently shrouded in trade wind clouds and mist in combination with 
rainfall. This habitat type is termed tropical montane cloud forest. 
Many features of these ecosystems, such as vegetation morphology, are 
related to cloud formation. One of the most significant characteristics 
is horizontal precipitation, where frequent cloud cover is the 
deposition of cloud droplets on vegetation (Laurance and Williamson 
2001, p. 1529; Still 1999, p. 608). Fragmented forests, such as the one 
where the black breasted puffleg exists, are more susceptible to 
droughts in El Ni[ntilde]o years (Laurance and Williamson 2001, p. 
1529). With increased deforestation, plant evapotranspiration is 
reduced, subsequently causing a decrease in rainfall, which could in 
turn increase the vulnerability of the forest to fire. Researchers 
suggest that there may be a deforestation threshold (Laurance and 
Williamson 2001, p. 1529). All of these stressors act synergistically, 
and warming climate could exacerbate the likelihood of drought and 
subsequent forest fire (Foden et al. 2008, pp. 1-4). The relationship 
between El Ni[ntilde]o (and increased El Ni[ntilde]o events), 
deforestation, drought, and forest fires all interacting 
synergistically increase the likelihood of increased severity in 
drought and forest fires (Laurance 1998, p. 413).
    Research suggests that birds are moving northward to cooler 
climates in response to climate change (Sorte and Jetz 2008, pp. 865, 
866). In part, because the black breasted puffleg's habitat is at high 
elevations, it has been suggested there may no longer be habitat for 
this species. The higher elevations could potentially be affected by 
the synergistic effects of drought, El Ni[ntilde]o, and forest fires as 
discussed above. Plant nectar and other food sources upon which the 
black-breasted puffleg depends may require a particular humidity level 
that is associated with cloud forest conditions. Conditions associated 
with this shift in elevation include possible physiological changes and 
changes in species assemblages in part due to phenology (when plants 
bloom based on temperature and daylight), all of which could 
potentially affect the black breasted puffleg's fitness (Foden et al 
2008, pp. 1-5). These potential changes act in concert with other 
threats to the species such as habitat loss and degradation, magnifying 
the synergistic effects on this species. However, several reserves 
exist for the explicit protection of black breasted puffleg habitat. 
Because these reserves exist and contain large swaths of protected 
forested habitat (believed to be at least 6,096 ac/2,467 ha), the 
threat of drought and forest fires is ameliorated. Therefore, we do not 
consider the synergistic effects of drought, El Ni[ntilde]o, and forest 
fires to have a significant impact on the species' habitat now or in 
the foreseeable future.
    Invasive species. An increase in the atmospheric concentration of 
carbon dioxide (CO2) has implications beyond those associated with 
warming temperatures. The change in CO2 may increase the ability of 
invasive plant species to outcompete native plant species on which the 
black-breasted puffleg feeds. Higher concentrations of CO2 may be 
favorable to invasive plant species (Smith et al. 2000, pp. 79-82). 
Emissions of CO2, considered to be the most significant anthropogenic 
greenhouse gas, increased due to human activities by approximately 80 
percent between 1970 and 2004 (IPCC 2007, p. 36). CO2 emissions from 
energy use have been projected to increase by 40 to 110 percent between 
2000 and 2030 (IPCC 2007, p. 44). We therefore expect continuing 
production of atmospheric CO2, at or above current levels, as 
predicted, to contribute to the spread of invasive plant species and 
have a detrimental impact on the species' habitat.

Summary of Factor E

    Projected climate change and its associated consequences (change in 
species composition, distribution, and elevation) has the potential to 
affect the black-breasted puffleg. Warmer temperatures may interact 
with other stressors such as habitat degradation and loss (Brook et al. 
2008, p. 1). Competition with other species and an increase in invasive 
plant species, which could outcompete the black-breasted puffleg's food 
sources, are other potential stressors. Warmer temperatures and greater 
concentrations of atmospheric carbon dioxide will likely cause changes 
in the plant species composition in this species' habitat, as well as 
likely shift the black-breasted puffleg altitudinal distribution (Jahn 
2008). However, this species is a generalist feeder and has been seen 
in lower elevations in reserves and protected areas. We believe that 
the above stresses to the species are buffered by the establishment of 
reserves and protected areas for this species.
    The black-breasted puffleg is currently restricted to possibly 
three small and declining populations within a small geographic range. 
The limited availability of suitable habitat 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. Other threats to the 
species include possible competition and displacement by the Gorgeted 
sunangel, displacement of the black-breasted puffleg's food sources by 
nonnative invasive plant species, and genetic isolation due to habitat 
fragmentation and isolation of small populations.
    Based on the best available information, we have determined that 
the species is particularly vulnerable to the threat of adverse natural 
(e.g., genetic, demographic) and manmade events (introduction of 
invasive species and drought and fires caused by habitat loss and 
destruction) that destroy individuals and their habitat. The genetic 
and demographic risks are exacerbated by the manmade factors. 
Therefore, we find that other natural or manmade factors are threats to 
the continued existence of the black-breasted puffleg.

Conclusion and Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the black-breasted puffleg. The extreme lack of data for this 
species makes it difficult to discern a trend in population numbers 
with statistical confidence. We believe it is reasonable to infer that 
the trend is downward; the best available scientific and commercial 
data suggest that over the past two decades, this species has

[[Page 43852]]

likely significantly declined in abundance.
    There are three primary factors impacting the continued existence 
of the black-breasted puffleg: (1) Habitat destruction, fragmentation, 
and degradation (factor A); (2) limited, declining population size and 
isolation of remaining subpopulations (factor E); and (3) inadequate 
regulatory mechanisms (factor D). The black-breasted puffleg, a small 
hummingbird with two to three subpopulations, occupies a narrow range 
of distribution, preferring temperate elfin forests at altitudes of 
between 6,791 and 11,483 ft (2,070 and 4,570 m). The species is an 
altitudinal migrant, spending the breeding season (November-February) 
in the humid elfin forest and the rest of the year at slightly lower 
elevations based on available food sources.
    The primary threat to this species, widespread deforestation, has 
led to habitat loss. 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. Its habitat, which is already disturbed and 
fragmented, continues to be altered by anthropogenic factors such as 
habitat alteration, introduction of invasive species, and habitat 
destruction and fragmentation as a result of local sustenance use, 
particularly agriculture. 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 are 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 200 to 270 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, 
fire) events that destroy individuals and their habitat.
    The population of this species has declined between 50 and 79 
percent in the past 11 years. More than 20 percent of this loss 
occurred within the past 6 years, including the possible local 
extirpation of the species from Volcan 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 inadequacy of existing regulatory mechanisms (Factor 
D) and the species' already small and declining population size, making 
the black-breasted puffleg particularly vulnerable to natural and human 
factors (e.g., genetic isolation and possible inbreeding, and the 
introduction of invasive species) (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 the best 
available scientific and commercial information regarding the past, 
present, and potential future threats faced by the black-breasted 
puffleg, this species warrants protection under the Act, and we 
determine that the black-breasted puffleg is endangered throughout its 
range.

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 propagation 
or survival of the species, and for incidental take in connection with 
otherwise lawful activities.

Required Determinations

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).

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 Endangered Species Program, Branch of Listing, U.S. Fish and 
Wildlife Service (see FOR FURTHER INFORMATION CONTACT).

Author(s)

    The primary authors of this final rule are the staff of the 
Endangered Species Program, Branch of Foreign Species, U.S. Fish and 
Wildlife Service (see ADDRESSES section).

[[Page 43853]]

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:



PART 17--[AMENDED]

0
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; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. Amend 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.

    * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Species                                           Vertebrate
------------------------------------------------                   population where                                         Critical
                                                  Historic range     endangered or        Status         When listed        habitat       Special rules
         Common name            Scientific name                       threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          BIRDS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Puffleg, black-breasted        Eriocnemis        Ecuador, South    Entire            E                 767              NA               NA
                                nigrivestis       America
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: June 29, 2010
Jeffrey L. Underwood,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-18018 Filed 7-26-10; 8:45 am]
BILLING CODE 4310-55-S