[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81794-81815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32628]



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Part IV





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Listing Seven Brazilian 
Bird Species as Endangered Throughout Their Range; Final Rule

  Federal Register / Vol. 75 , No. 248 / Tuesday, December 28, 2010 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R9-IA-2009-0028; 92210-1111-0000-B6]
RIN 1018-AV74


Endangered and Threatened Wildlife and Plants; Listing Seven 
Brazilian Bird Species as Endangered Throughout Their Range

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered status for the following seven Brazilian bird species and 
subspecies (collectively referred to as ``species'' for purposes of 
this rule) under the Endangered Species Act of 1973, as amended (Act) 
(16 U.S.C. 1531 et seq.): Black-hooded antwren (Formicivora 
erythronotos), Brazilian merganser (Mergus octosetaceus), cherry-
throated tanager (Nemosia rourei), fringe-backed fire-eye (Pyriglena 
atra), Kaempfer's tody-tyrant (Hemitriccus kaempferi), Margaretta's 
hermit hummingbird (Phaethornis malaris margarettae), and southeastern 
rufous-vented ground-cuckoo (Neomorphus geoffroyi dulcis).

DATES: This rule becomes effective January 27, 2011.

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, will be 
available for public inspection, by appointment, during normal business 
hours at: U.S. Fish and Wildlife Service, Endangered Species Program, 
4401 N. Fairfax Drive, Suite 400, Arlington, VA 22203.

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

SUPPLEMENTARY INFORMATION:

Background

    On August 12, 2009, we published a proposed rule (74 FR 154) to 
list the following seven Brazilian bird species--black-hooded antwren 
(Formicivora erythronotos), Brazilian merganser (Mergus octosetaceus), 
cherry-throated tanager (Nemosia rourei), fringe-backed fire-eye 
(Pyriglena atra), Kaempfer's tody-tyrant (Hemitriccus kaempferi), 
Margaretta's hermit (Phaethornis malaris margarettae), and southeastern 
rufous-vented ground-cuckoo (Neomorphus geoffroyi dulcis)--as 
endangered under the Endangered Species Act of 1973, as amended (Act; 
16 U.S.C. 1531 et seq.). All of the above species are found in the 
Atlantic Forest, with the exception of the Brazilian merganser, which 
is also found in the Cerrado Biome.
    We opened the public comment period on the proposed rule for 60 
days, ending October 13, 2009, to allow all interested parties an 
opportunity to comment on the proposed rule.
    We are addressing the seven Brazilian bird species identified above 
under a single rule for three reasons. First, all of these species are 
found in the Atlantic Forest Biome and Cerrado Biome; thus, it is 
reasonable to address them together within a regional conservation 
perspective. Biomes are large geographic areas such as forests and 
deserts which share similar climate and geography and consist of 
similar naturally occurring vegetation and fauna. Second, each of these 
seven species is subject to similar threats of comparable magnitude. 
The major threat to these species is the loss and degradation of 
habitat due to deforestation and other ongoing development practices 
affecting southeastern Brazil, as well as associated threats due to 
severely restricted distributions of these species and small, declining 
populations (such as potential loss of genetic viability). Third, 
combining species that face similar threats within the same general 
geographic area into one rule allows us to maximize our limited staff 
resources, thus increasing our ability to complete the listing process 
for warranted-but-precluded species.

Previous Federal Actions

    On November 28, 1980, we received a petition (the 1980 petition) 
from Dr. Warren B. King, Chairman, United States Section of the 
International Council for Bird Preservation (ICBP), to add 60 foreign 
bird species to the List of Endangered and Threatened Wildlife (50 CFR 
17.11(h)), including 5 of the 7 Brazilian bird species (black-hooded 
antwren, cherry-throated tanager, fringe-backed fire-eye, Margaretta's 
hermit, and southeastern rufous-vented ground-cuckoo) that are the 
subject of this final rule. Two other foreign species identified in the 
petition were already listed under the Act. In response to the 1980 
petition, we published a substantial 90-day finding on May 12, 1981 (46 
FR 26464), for 58 foreign species and initiated a status review.
    On January 20, 1984 (49 FR 2485), we published a 12-month finding 
within an annual review on pending petitions and description of 
progress on all pending petition findings. In that notice, we found 
that all 58 foreign bird species from the 1980 petition were warranted 
but precluded by higher priority listing actions. On May 10, 1985, we 
published an annual notice (50 FR 19761), in which we continued to find 
that listing all 58 foreign bird species from the 1980 petition was 
warranted but precluded. We published additional annual notices on the 
58 species included in the 1980 petition on January 9, 1986 (51 FR 
996); July 7, 1988 (53 FR 25511); December 29, 1988 (53 FR 52746); 
April 25, 1990 (55 FR 17475); November 21, 1991 (56 FR 58664); and May 
21, 2004 (69 FR 29354). These notices indicated that the black-hooded 
antwren, cherry-throated tanager, fringe-backed fire-eye, Margaretta's 
hermit, and southeastern rufous-vented ground-cuckoo, along with the 
remaining species in the 1980 petition, continued to be warranted but 
precluded.
    On May 6, 1991, we received a second petition (the 1991 petition) 
from ICBP to add an additional 53 foreign bird species to the List of 
Endangered and Threatened Wildlife, including the 2 remaining Brazilian 
bird species (Brazilian merganser and Kaempfer's tody-tyrant) that are 
the subject of this rule. In response to the 1991 petition, we 
published a substantial 90-day finding on December 16, 1991 (56 FR 
65207), for all 53 species and initiated a status review. 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 (15 each from the 1980 petition and 1991 petition). In that 
document, we announced our finding that listing the remaining 38 
species from the 1991 petition, including the Brazilian merganser and 
Kaempfer's tody-tyrant, was warranted but precluded by higher priority 
listing actions. We made a subsequent warranted-but-precluded finding 
for all outstanding foreign species from the 1980 and 1991 petitions, 
including the seven Brazilian bird species that are the subject of this 
final rule, as published in our annual notice of review (ANOR) on May 
21, 2004 (69 FR 29354).
    Per the Service's listing priority guidelines (September 21, 1983; 
48 FR 43098), our 2007 ANOR (72 FR 20183, April 23, 2007) identified 
the listing priority numbers (LPNs) (ranging from 1

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to 12) for all outstanding foreign species. The LPNs for the seven 
Brazilian bird species that are the subject of this final rule are as 
follows: The black-hooded antwren, Brazilian merganser, cherry-throated 
tanager, fringe-backed fire-eye, and Kaempfer's tody-tyrant are LPN 2; 
and the Margaretta's hermit and southeastern rufous-vented ground-
cuckoo are LPN 3. Listing priorities of 2 and 3 indicate that the 
subject species and subspecies, respectively, face imminent threats of 
high magnitude. With the exception of listing priority ranking of 1, 
which addresses monotypic genera that face imminent threats of high 
magnitude, categories 2 and 3 represent the Service's highest 
priorities.
    On July 29, 2008 (73 FR 44062), we published in the Federal 
Register a notice announcing our annual petition findings for foreign 
species. In that notice, we announced listing to be warranted for 30 
foreign bird species, including the seven Brazilian bird species which 
are the subject of this final rule, and stated that we would ``promptly 
publish proposals to list these 30 taxa.''
    On September 8, 2008, the Service received a 60-day notice of 
intent to sue from the Center for Biological Diversity (CBD) claiming 
violations of section 4 of the Act for the Service's failure to 
promptly publish listing proposals for the 30 ``warranted'' species 
identified in our 2008 ANOR. Under a settlement agreement approved by 
the U.S. District Court for the Northern District of California on June 
15, 2009 (CBD v. Salazar, 09-CV-2578-CRB), the Service was required to 
submit to the Federal Register proposed listing rules for the black-
hooded antwren, Brazilian merganser, cherry-throated tanager, fringe-
backed fire-eye, Kaempfer's tody-tyrant, Margaretta's hermit, and 
southeastern rufous-vented ground-cuckoo by July 31, 2009. On August 
12, 2009, we published the proposed rule (74 FR 154) to list these 
species as endangered.

Summary of Changes From the Proposed Rule

    This final rule incorporates changes to our proposed listing based 
on new information and on comments that we received. Specifically, we 
included new information on recent location data for Brazilian 
merganser and the cherry-throated tanager. We also updated the 
population estimate, range, and conservation status on the Kaempfer's 
tody-tyrant and clarified what is known about the taxonomy of the 
Margaretta's hermit hummingbird.

Summary of Comments and Recommendations

    In the proposed rule published on August 12, 2009 (74 FR 154), we 
requested that all interested parties submit information that might 
contribute to the development of a final rule. We also contacted 
appropriate scientific experts and organizations and invited them to 
comment on the proposed listings. We received four comments on the 
proposed rule, including two from peer reviewers and two from the 
public. One comment from the public expressed support for the proposed 
listings but provided no substantive information. Based on our request 
in our proposed rule for information on climate change, this commenter 
requested that we take climate change into account when evaluating 
threats to the cherry-throated tanager, and cited Birdlife 
International's Web site for this species. The science of climate 
change is still uncertain, particularly with respect to how it will 
affect the long-term persistence of protected species as well as the 
quality and quantity of ecosystems upon which they depend. We did 
evaluate climate change as a threat to all of these species in this 
final rule (refer to the evaluation under Factor E for each species).
    The other comment received from the public was also 
nonsubstantive--the commenter asked why these seven species should be 
listed under the Act if they are nonnative to the United States. The 
Act provides for the listing of any species that qualifies as an 
endangered or threatened species, regardless of its native range. 
Protections under the Act that apply to species not native to the 
United States include restrictions on importation into the United 
States; sale or offer for sale in foreign commerce; and delivery, 
receipt, carrying, transport, or shipment in foreign commerce and in 
the course of a commercial activity. Listing also serves to heighten 
awareness of the importance of conserving these species among foreign 
governments, conservation organizations, and the public.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from nine knowledgeable 
individuals with scientific expertise that included familiarity with 
these seven species, the geographic region in which the species occur, 
and conservation biology principles. We received responses from two of 
the peer reviewers. The peer reviewers generally agreed that the 
description of the biology and habitat for each species was accurate 
and based on the best available information. New location data were 
provided for the Brazilian merganser and the cherry-throated tanager, 
and we incorporated the information into the rulemaking as appropriate.

Atlantic Forest and Cerrado Biome--Habitat Descriptions

    The Atlantic Forest Biome and the Cerrado Biome, in which all of 
these species occur, are two main ecological regions that exist almost 
entirely in Brazil. The Atlantic Forest extends along the Atlantic 
coast of Brazil from Rio Grande do Norte in the north to Rio Grande do 
Sul in the south, and inland as far as Paraguay and Misiones Province 
of northeastern Argentina (Morellato and Haddad 2000, pp. 786-787; 
Conservation International 2007a, p. 1; H[ouml]fling 2007, p. 1). The 
Atlantic Forest extends up to 600 km (373 mi) west of the Atlantic 
Ocean. It consists of tropical and subtropical moist forests, tropical 
dry forests, and mangrove forests at mostly low-to-medium elevations 
less than 1,000 m (3,281 ft); however, altitude can reach as high as 
2,000 m (6,562 ft) above sea level. According to Conservation 
International, less than 10 percent of this habitat remains intact; 
other estimates are that 7 percent remains intact (Morellato and Haddad 
2000, p. 786; Oliveira-Filho and Fontes 2000, p. 794). Based on a 
number of other estimates, 92 to 95 percent of the area historically 
covered by tropical forests within the Atlantic Forest biome has been 
converted or severely degraded as a result of various human activities 
(Morellato and Haddad 2000, p. 786; Myers et al. 2000, pp. 853-854; 
Saatchi et al. 2001, p. 868; Butler 2007, p. 2; Conservation 
International 2007a, p. 1; H[ouml]fling 2007, p. 1; The Nature 
Conservancy (TNC) 2007, p. 1; World Wildlife Fund 2007, pp. 2-41). In 
addition to the overall loss and degradation of native habitats within 
this biome, the remaining tracts of habitat are severely fragmented. 
The current rate of habitat decline is unknown.
    The Cerrado Biome is in central Brazil and is considered one of the 
most biodiverse savannas in the world (Ratter et al. 1997, p. 223; 
Conservation International 2007b; World Bank 2010). It has an annual 
rainfall between 800 and 2,000 millimeters (mm) (31 to 79 in). This 
tropical savannah ecoregion is characterized by woody savanna generally 
2-8 m (6-26 ft) in height and well-drained soil. The altitude in this

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region is between 300 and 1,200 m (984 and 3,937 ft), and the habitat 
has specific soil characteristics. Other characteristics of this biome 
are soil depths of at least 3 m (9.8 ft) and aluminum-rich soils 
(Schmidt 2008, pp. 3-4).

Species Descriptions

    Below is a species-by-species description. The species are 
described in alphabetical order, beginning with the black-hooded 
antwren, followed by the Brazilian merganser, cherry-throated tanager, 
fringe-backed fire-eye, Kaempfer's tody-tyrant, Margaretta's hermit 
hummingbird, and southeastern rufous-vented ground-cuckoo.

I. Black-hooded Antwren (Formicivora erythronotos)

Species Description
    The black-hooded antwren measures 10.5 to 11.5 centimeters (cm) (4 
to 4.5 inches (in)) (BirdLife International (BLI) 2010d, p. 1; Sick 
1993, p. 414). Males are black with a reddish-brown back. They have a 
black narrow bill and a long tail. The wings are black with three thin 
white stripes on the wings (wing bars). Females have similar coloring, 
except they have brown-olive feathers where black feathers appear on 
males (BLI 2010d, p. 1).
Taxonomy
    The black-hooded antwren is a small member of the diverse 
``antbird'' family (Thamnophilidae). The species was previously 
recognized under the genus Myrmotherula (Collar et al. 1992, p. 667; 
Sick 1993, p. 414; BLI 2010d, p. 1).
Habitat and Life History
    The black-hooded antwren inhabits lush understories of remnant old-
growth and early successional secondary-growth coastal forests, and it 
may also occur in dense understories of modified restinga (BLI 2010d, 
p. 1; Tobias and Williams 1996, p. 64). Restinga is a Brazilian term 
that describes white sand forest habitat consisting of a patchwork of 
vegetation types, such as beach vegetation; open shrubby vegetation; 
herbaceous, shrubby coastal sand dune habitat; and dry and swamp 
forests distributed over coastal plains from northeastern to 
southeastern Brazil (McGinley 2007, pp. 1-2; Rocha et al. 2005, p. 
263).
    Although the specific habitat requirements of the black-hooded 
antwren are still unclear, the species is not considered a tropical 
forest specialist. The black-hooded antwren typically forages in pairs 
or small family groups and consumes various insects, spiders, and small 
frogs (Collar et al. 1992, p. 667; del Hoyo 2003, p. 616; Sick 1993, p. 
405; Tobias and Williams 1996, p. 65). Their foraging zone is in dense 
vegetation generally between ground level and 3 meters (m) (10 feet 
(ft)) above the ground, but they are also known to forage in higher 
vegetation zones up to 7 m (23 ft) above the ground. Females typically 
lay two eggs in fragile nests resembling small cups made of plant 
material (e.g., rootlets, stems, moss) that are attached to horizontal 
branches within roughly 1 m (3.3 ft) of the ground (Collar et al. 1992, 
p. 667; Sick 1993, p. 405). Both sexes help to build the nests, brood 
clutches, and attend their young.
Range and Distribution
    The black-hooded antwren is endemic to the Atlantic Forest Biome in 
the southeast portion of the State of Rio de Janeiro (BLI 2010d, p. 1; 
Collar et al. 1992, pp. 667). Currently, the only confirmed population 
is believed to be restricted to remnant patches of forest habitat along 
roughly 30 kilometers (km) (19 miles (mi)) of coast in southern Rio de 
Janeiro, near the border with S[atilde]o Paulo (Browne 2005, p. 95; 
Tobias and Williams 1996, p. 64). However, there have also been recent 
unconfirmed reports that the species may occur at the State Ecological 
Reserve of Jacarepi[aacute], located roughly 75 km (47 mi) northeast of 
the city of Rio de Janeiro (Association for the Defense of the 
Environment in Jacarepi[aacute] (ADEJA) 2007, p. 3; WorldTwitch 2007, 
p. 12).
Population Estimates
    The black-hooded antwren was known from 20 specimens that were 
purportedly collected in the 1800s in montane forest habitats of 
central Rio de Janeiro, Brazil. The species had not been reported since 
that collection until it was rediscovered in 1987 in the Atlantic 
forest in south Rio de Janeiro (BLI 2010d, p. 1).
    The extant population is estimated to be between 1,000 and 2,499 
birds, and is fragmented among seven occupied sites, including 
Bracu[iacute], Frade, S[atilde]o Gon[ccedil]alo, Taquari and Barra 
Grande, Arir[oacute], and Vale do Mambucaba. Vale do Mambucaba has the 
highest known density of pairs (156 pairs per square km (km\2\)), 
followed by Mambucaba (densities of 89 pairs/km\2\). There are no known 
estimates for the other locations, but it is believed that the numbers 
are few (BLI 2010d, p. 1). At least one of the fragmented populations 
is believed to be reproductively isolated. The population, as a whole, 
is also believed to be declining rapidly due to continued loss of 
habitat (BLI 2010d, pp. 1-3).
Conservation Status
    The IUCN considers the black-hooded antwren to be ``Endangered,'' 
because ``it has a very small and severely fragmented range that is 
likely to be declining rapidly in response to habitat loss'' (BLI 
2010d, p. 3). The species is also protected by Brazilian law and occurs 
in the buffer area of Serra da Boca[iacute]na National Park (BLI 2010d, 
p. 2). The species is not listed in the Appendices of the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES) (http://www.cites.org).

II. Brazilian Merganser (Mergus octosetaceus)

Species Description
    The Brazilian merganser is described as resembling a cormorant 
(Sick 1993, p. 163). The species has a distinctive green crest, which 
extends over the nape of the neck and which is more developed in males 
(Sick 1993, p. 163). The bird has a white wing speculum and red feet, 
and is 49-56 cm (19-22 in) in length (BLI 2007a, p. 1). The breast is 
pale grey with dark markings, and dark grey coloring in the upper 
breast (BLI 2007a, p. 1).
Taxonomy
    The Brazilian merganser was first described by Vieillot in 1817 
(Partridge 1956, p. 473). The species is in the family Anatidae (BLI 
2007a, p. 1).
Habitat and Life History
    The Brazilian merganser is highly adapted to mountainous, highly 
oxygenated clear-water streams and rivers, generally with pools greater 
than 1 m (3 ft) in depth, and typically bordered by evergreen forests 
(Bruno et al. 2006, p. 26; Collar et al. 1992, pp. 80-86; Ducks 
Unlimited 2007, p. 1; Hughes et al. 2006, p. 23; Lamas and Lins 2009, 
p. 3; Partridge 1956, pp. 478-480; Sibley and Monroe 1990, p. 41; 
Silveira and Bartman 2001, pp. 294-295). The Brazilian merganser's 
original distribution area encompassed the Atlantic Forest and Cerrado 
biome (Bianchi et al. 2005, p. 73; Braz et al. 2003, p. 70; Lamas and 
Lins 2009, p. 3; Silveira and Bartman 2001, pp. 294-295; Silveira 2008, 
pp. 420-421).
    Brazilian mergansers are strong swimmers and divers, and have been 
observed to dive to a depth of 0.5 m (1.6 ft) (Silveira et al. 2001, p. 
291). They typically feed in river rapids, still waters, or pools 
adjacent to waterfalls, whereas they rest and preen on exposed rocks in 
more slack water areas or at the river edges (Braz et al. 2003, p. 70; 
Hughes et al. 2006, p. 21; Lamas and

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Lins 2009, p. 4; Partridge 1956, pp. 481-482; Silveira and Bartman 
2001, p. 291). Brazilian mergansers feed primarily on a variety of fish 
species such as the Lambari (Astyanax species), and occasionally on 
insects, snails, and other aquatic macro-invertebrates (Partridge 1956, 
p. 483, Silveira et al. 2001, p. 291; Hughes et al. 2006, p. 32; Lamas 
2006, p. 151; Lamas and Lins 2009, p. 4).
    Brazilian mergansers are not migratory and are believed to be 
monogamous. Breeding pairs appear to maintain their territories along a 
stretch of river (up to ca. 12 km (7.5 mi)) throughout the year 
(Partridge 1956, p. 477; Silveira and Bartman 2001, p. 295; Braz et al. 
2003, p. 70; Hughes et al. 2006, pp. 23, 33; Lamas 2006, p. 149; Ducks 
Unlimited 2007, p. 1). The breeding season begins in June, and young 
hatch around August (Partridge 1956, p. 487; Lamas and Santos 2004; 
Bruno et al. 2006, p 27). Their brood size is between two and six 
(Silveira et al. 2001, p. 296; Bruno et al. 2006, p. 26). Females 
establish their nests in the cavities of trees that are adjacent to the 
river. The females incubate their eggs alone, although males are 
attentive and remain nearby feeding and perching at the river shoreline 
(Bruno et al. 2006, p. 29; Lamas and Santos 2004, p. 38; Partridge 
1956, pp. 484-485). Females may also locate their nests in the cavities 
of cliffs or rocky outcrops or in river banks (Bruno et al. in press; 
Lamas and Santos 2004, pp. 38-39; Lamas and Lins 2009, p. 4).
Range and Distribution
    For as long as the Brazilian merganser has been known, it has 
always been considered a rare species, possibly due to its shy nature 
(Lamas 2006, p. 151). It occurs in a few fragmented locations in south-
central Brazil, including the upper tributaries of rivers within the 
Atlantic Forest biome and to the west in the Cerrado biome (Silveira 
and Bartmann 2001, pp. 287-288). The Brazilian merganser occurred 
historically in riverine habitats throughout southeastern Brazil, 
northeastern Argentina, and eastern Paraguay (Hughes et al. 2006, p. 
24). Currently, the species is found in extremely low numbers at 
disjunct localities of Brazil, and possibly in northeastern Argentina 
and eastern Paraguay (BLI 2007a, pp. 1-5; Hughes et al. 2006, pp. 28-
31; Lamas and Lins 2009, p. 3). The Brazilian merganser may be 
extirpated from Argentina and Paraguay, and from Mato Grosso do Sul, 
S[atilde]o Paulo, Rio de Janeiro, and Santa Catarina, in Brazil (BLI 
2009b, pp. 1-2). The vast majority of the species' extant population 
and remaining suitable habitats occur in Brazil, including its largest 
population, which is estimated to contain around 80 pairs (Lamas 2006, 
p. 151).
    The species likely still occurs in the Brazilian States of 
Tocantins, Bahia, Goi[aacute]s, Minas Gerais, and Paran[aacute] (Hughes 
et al. 2006, pp. 51-52). It was found in 2002 at the Serra de Canastra 
National Park (SCNP), Minas Gerais. In 2004 it was found at Itacolomi 
State Park, Minas Gerais (DePaula et al. 2008, p. 289). Although SCNP 
is a 200,000-hectare (ha) (494,211-acre (ac)) nationally protected 
park, only 71,500 ha (176,680 ac) are under strict protection (Lamas 
2006, p. 150). In 2001-2002, the species was observed in nine 
localities in SCNP (Lamas 2006, p. 145). The SCNP is the only site 
where this species is being regularly monitored (Hughes et al. 2006, p. 
52). Other recent sightings of the species in previously undocumented 
areas of Brazil indicate that the Brazilian merganser may be more 
abundant and widespread than previously believed (Bianchi et al. 2005, 
p. 72; Lamas 2006, p. 145). For example, the species was recently 
confirmed in a nonprotected area in the State of Minas Gerais, Brazil 
(Lamas et al. 2009).
    Historically, the Brazilian merganser occurred in Argentina, 
Brazil, and Paraguay. In Argentina, the Brazilian merganser was 
documented in three protected areas: The Iguaz[uacute] National Park, 
the Parque Provincial Urugua-[iacute], and the Private Reserve Urugua-
[iacute] (Chebez 1994; Antas 1996; Chebez et al., 1998 in Hughes et al. 
2006, p. 49). Some researchers believe that sizable overall populations 
may still exist in the extensive river systems of Misiones in 
Argentina, specifically in the Urugua[iacute] Provincial Park (Hughes 
et al. 2006, pp. 31, 50-51). In 2002, it was reported to have been 
found on the Arroyo Uruz[uacute] in Misiones, Argentina, the first 
record in the country in 10 years, despite extensive surveys (BLI 
2010b). However, it is unclear whether the species still exists in 
Argentina. In Paraguay, the last confirmed sighting of the species is 
from 1984 (Hughes et al. 2006, p. 31). We are unable to confirm that 
the species exists in areas outside of Brazil, and therefore are unable 
to evaluate any threats. Because we do not know if populations of this 
species still exist outside of Brazil, for the purpose of this rule, we 
are limiting our analysis of threats to the current Brazilian 
population of the species.
Population Estimate
    BLI estimates the total population is between 50 and 249 
individuals, and the population is presumed to be declining (BLI 2010b, 
p. 1). Recent records indicate the population size may be larger than 
250, although researchers have not been able to estimate the total 
population size (Lamas and Lins 2009, p. 5).
Conservation Status
    IUCN considers the Brazilian merganser to be ``Critically 
Endangered,'' because ``although recent records from Brazil, and 
particularly a recent northerly range extension, indicate that this 
species' status is better than previously thought, the remaining 
population is still extremely small and severely fragmented, and the 
perturbation and pollution of rivers continues to cause declines'' (BLI 
2009b, p. 1). The species is not listed in any of the Appendices of 
CITES (http://www.cites.org).

III. Cherry-Throated Tanager (Nemosia rourei)

Species Description
    The cherry-throated tanager has black plumage on its head with a 
white crown, black coloring on its back, wings with gray scapular 
feathers, white feathers on its undersides, and red coloring on its 
throat and upper chest. Its tail is square tipped, its bill is black, 
and it has pink feet (Bauer et al. 2000, p. 102; BLI 2010d, p. 1; 
Venturini and Paz 2007, p. 609). It has a distinct vocalization with 
calls between 5 and 8 kilohertz (described in Bauer et al. 2000, pp. 
103-104) and has been observed both singly and in small flocks. The 
species' diet includes caterpillars, butterflies, ants, and various 
other arthropods (Bauer et al. 2000, p. 104; Venturini et al. 2005, p. 
65).
Taxonomy
    The cherry-throated tanager is a member of the Thraupidae family. 
It was first described by Cabanis in 1870 (BLI 2010d, p. 1).
Habitat and Life History
    The cherry-throated tanager is endemic to the Atlantic Forest in 
southeast Brazil. It inhabits the upper canopies of trees within humid, 
montane primary forests at elevations 850-1,250 m (2,789-4,101 ft) 
above sea level (Bauer et al. 2000, pp. 97-104; Venturini et al. 2005, 
pp. 60-66). The cherry-throated tanager is a primary forest-obligate 
species that typically forages within the interior crowns of tall, 
epiphyte-laden trees and occasionally within lower canopy levels (ca. 2 
m (7 ft)) at the forest edge. Cherry-throated tanagers can be found in 
mixed-species flocks. Observations indicate that they require 
relatively

[[Page 81798]]

large territories (ca. 4 km\2\ (1.5 mi\2\)) (Venturini et al. 2005, p. 
66). Within its current distribution, the species makes sporadic use of 
coffee (Coffea spp.), pine (Pinus spp.), and eucalyptus (Eucalyptus 
spp.) plantations, presumably as travel corridors between remaining 
patches of primary forest (Venturini et al. 2005, p. 66).
    Little is known about the breeding behavior of the cherry-throated 
tanager. However, a single field observation indicates that perhaps 
both sexes help build nests (Venturini et al. 2002, pp. 43-44). A nest 
(observed in November) was constructed of moss, and possibly thin 
twigs, and the material was placed in natural depressions of branches 
near the trunk within the mid-canopy (Venturini et al. 2002, pp. 43-
44).
Range and Distribution
    The cherry-throated tanager is found in primary forest habitats in 
Esp[iacute]rito Santo and possibly Minas Gerais and Rio de Janeiro, 
Brazil (BLI 2010d, p. 1). In 1941, it was found in the mountains of 
Esp[iacute]rito Santo State at three sites: Itarana, Jatiboca 
(elevation 900 m (2,953 ft)), and the Augusto Ruschi Biological Reserve 
(Venturini et al. 2005, p. 63). Since 1998, the cherry-throated tanager 
has been documented at various sites of remnant primary forest in 
south-central Esp[iacute]rito Santo. In February 1998, it was located 
in a private reserve, Fazenda Pindobas IV, in the municipality of 
Concei[ccedil][atilde]o. It was also documented in Caet[eacute]s, in 
the Vargem Alta municipality in southern Esp[iacute]rito Santo (30 km 
(18.6 mi) southeast of Pindobas) (Venturini et al. 2005, p. 61). Bauer 
et al. (2000, p. 99) reported a sighting in Pirapetinga (Minas Gerais) 
at an altitude of 150 m (492 ft). In October 2002 and in January 2003, 
researchers heard Nemosia vocalizations in the Augusto Ruschi 
Biological Reserve (Biol[oacute]gica Augusto Ruschi), which may have 
been this species (Venturini et al. 2005, pp. 63-64). However, the 
cherry-throated tanager may only currently exist in Esp[iacute]rito 
Santo, where a corridor was just established specifically for this 
species via Decree no. 2529-R (BLI 2010h). Esp[iacute]rito Santo 
contains Atlantic Forest remnants, which may contain the only viable 
remaining habitat for this species.
Population Estimates
    The cherry-throated tanager was presumed to be extinct until 1998. 
Prior to that, the species was only known from a single specimen 
collected in the 1800s and from a reliable sighting of eight 
individuals in 1941 (Collar et al. 1992, p. 896; Ridgely and Tudor 
1989, p. 34; Scott and Brooke 1985, p. 126). The species was 
rediscovered in 1998 (Bauer et al. 2000, p. 97; Venturini et al. 2005, 
p. 60). BLI estimates the population to range from 50 to 249 
individuals, and it is believed to be declining (BLI 2010d, p. 1). 
Venturini et al. (2005, p. 66) believe the IUCN population estimate of 
250 birds may be too high, considering that the maximum number of 
individuals recently recorded was 14, including 6 birds in Pindobas and 
8 birds in Caet[eacute]s.
Conservation Status
    IUCN considers the cherry-throated tanager to be ``Critically 
Endangered'' because its extant population is extremely small 
(estimated to be between 50 and 249 individuals), highly fragmented, 
and presumed to be declining (BLI 2010d, p. 1). On the Brazilian Red 
list the species is ``threatened'' (MMA 2003, Machado et al. 2008). 
Within Brazil, similar to U.S. State wildlife categories of 
conservation status, this species is categorized differently based on 
each ``state'' within which it is found. In Esp[iacute]rito Santo, it 
is considered ``critically endangered'' (ES-DOE 2005). In the Minas 
Gerais Region, it is considered ``Probably extinct'' (Machado et al. 
2008). The species is not listed in any of the Appendices of CITES 
(http://www.cites.org).

IV. Fringe-Backed Fire-Eye (Pyriglena atra)

Species Description
    The fringe-backed fire-eye has distinctive red eyes and measures 
approximately 17.5 cm (7 in) in length. Males are black with a small 
patch of black feathers on their backs lined with white edges. Females 
are more of a reddish-brown color, with a black tail, brown underparts, 
and a whitish throat (BLI 2010e, p. 1).
Taxonomy
    The fringe-backed fire-eye belongs in the ``antbird'' family 
Thamnophilidae, and was first described by Swainson in 1825 (BLI 2010e, 
p. 1). Sick (1991, p. 416) describes this species to be similar to the 
white-backed fire-eye (Pyriglena leuconota). The fringe-backed fire-eye 
was previously referred to as Swainson's fire-eye, and is also called 
``Alapi noir'' in French, ``Fleckenmantel-Feuerauge'' in German, and 
``Ojodefuego de Bah[iacute]a'' in Spanish (del Hoyo 2003, p. 637).
Habitat and Life History
    The fringe-backed fire-eye is endemic to the Atlantic Forest biome 
and typically inhabits dense understory at the edges of lowland primary 
tropical forests (BLI 2007e, p. 2; Collar et al. 1992, p. 677; del Hoyo 
et al. 2003, p. 637). The species has also been found to occupy 
degraded forests and dense understory of secondary-growth forest 
stands. It can also occupy early-successional forest stands, but avoids 
any areas with open understories (e.g., sunny openings, interior 
forest) (del Hoyo et al. 2003, p. 637).
    The fringe-backed fire-eye forages in dense, tangled vegetation 
with numerous horizontal perches within approximately 3 m (10 ft) of 
the ground, although it occasionally feeds higher up in the canopy (ca. 
10 m (33 ft)) (Collar et al. 1992, p. 677; del Hoyo et al. 2003, p. 
637). The species typically occurs as individual birds, in closely 
associated pairs, or in small family groups. The bird often relies on 
army ant (Eciton spp.) swarms to flush their prey, which may include 
cockroaches (superfamily Blattoidea), grasshoppers (family Acrididae), 
winged ants (class Chilopoda), caterpillars (order Lepidopera), and 
geckos (family Gekkonidae) (Sick 1993, pp. 403-404; del Hoyo et al. 
2003, pp. 637-638).
    Limited specific information is known about the species' breeding 
behavior (del Hoyo et al. 2003, p. 638). However, females of this genus 
typically lay two eggs in spherical nests that are approximately 10 cm 
(4 in) in diameter, have a side entrance, and are attached to 
vegetation within roughly 1 m (3.3 ft) of the ground (Sick 1993, pp. 
405-406). Both sexes in this genus typically help to build nests, brood 
clutches, and attend their young (Sick 1993, pp. 405-406).
Range and Distribution
    The fringe-backed fire-eye occurs along a narrow belt of coastal 
forest habitat from southern Sergipe to northeastern Bahia, Brazil (del 
Hoyo et al. 2003, p. 637; BLI 2010e, p. 1). The fringe-backed fire-
eye's distribution is less disjunct than previously believed (BLI 
2010e). The species' entire population was previously believed to be 
restricted to a few sites of remnant primary forest, totaling roughly 9 
km\2\ (3.5 mi\2\) in northeastern Bahia. In 2002, approximately 18 
individuals were observed in a forested site in Sergipe (del Hoyo et 
al. 2003, p. 638). This discovery extended the species' known range to 
the north by approximately 175 km (109 mi) (del Hoyo et al. 2003, p. 
638). Its current estimated range is 5,000 km\2\ (1,930 mi\2\), 
although it exists in fragmented or degraded habitat within its range 
(BLI 2010e).
Population Estimates
    The fringe-backed fire-eye's population is estimated to be between

[[Page 81799]]

1,000 and 2,499 individuals (BLI 2010e, p. 1). The available 
information indicates that the species' population is fragmented among 
6 to 10 occupied areas (BLI 2010e, p. 3). Its population, along with 
the extent and quality of its habitat, continues to decline (BLI 2010e, 
p. 1).
Conservation Status
    IUCN considers the fringe-backed fire-eye to be ``Endangered'' 
because it has ``a small fragmented range, within which the extent and 
quality of its habitat are continuing to decline and where it is only 
known from a few localities'' (BLI 2010e, p. 1). In addition, the 
species is protected under Brazilian law (Collar et al. 1992, p. 678). 
The species is not listed in any of the Appendices of CITES (http://www.cites.org).

V. Kaempfer's Tody-Tyrant (Hemitriccus kaempferi)

Species Description
    The Kaempfer's tody-tyrant is an olive-green bird measuring 10 cm 
(4 in) in length (BLI 2010c, p. 1). The head and face have olive-brown 
coloring, while the upper parts and breast are a dull olive-green, the 
underparts are a pale greenish-yellow, and the throat is a pale yellow 
color. The primary wing feathers are dark and the secondary wing 
feathers have greenish-yellow borders. Each eye has a pale ring (BLI 
2010c, p. 1).
Taxonomy
    The Kaempfer's tody-tyrant is a member of the flycatcher family 
(Tyrannidae) (BLI 2010c, p. 1). The species was previously recognized 
under the genus Idioptilon, and was first described by Zimmer in 1953 
(BLI 2010c, p. 1).
Habitat and Life History
    The Kaempfer's tody-tyrant is endemic to the Atlantic Forest biome 
and inhabits well shaded edges of medium-height (ca. 12 to 15 m (39 to 
49 ft)) primary- and secondary-growth alluvial forests that are 
typically in close proximity to rivers. The species appears to avoid 
tall, mature primary forest habitats (Collar et al. 1992, p. 776; 
Barnett et al. 2000, pp. 372-373; BLI 2010c, pp. 1-2). The Kaempfer's 
tody-tyrant feeds predominantly in the mid-story within roughly 1 to 3 
m (3.3 to 10 ft) off the ground, but may also feed higher up (ca. 6 m 
(20 ft)) in the tree canopy.
    There is little information available describing the diet of the 
Kaempfer's tody-tyrant; however, similar species within the Tyrannidae 
family feed on a variety of insects, which they often catch while in 
flight (Sick 1993, pp. 452-453). Breeding pairs typically forage 
together and appear to maintain small, well-defined, permanent 
territories (Barnett et al. 2000, p. 373; BLI 2010c, p. 2).
    Both sexes help to build their nests, which can be located up to 
approximately 6 m (20 ft) above the ground and 2-3 m (6.6-10 ft) within 
the primary forest margin. Nests resemble elongated cups that can be up 
to 45 cm (18 in) long and are made of live mosses, grass, and dead 
leaves wrapped around a horizontal branch near the main trunk (Barnett 
et al. 2000, p. 373).
Range and Distribution
    The Kaempfer's tody-tyrant inhabits humid, lowland forests of the 
coasts of Paran[aacute] and northeastern Santa Catarina, Brazil (Collar 
et al. 1992, p. 776; Collar et al. 1994, p. 139; Barnett et al. 2000, 
p. 371; Belmontes-Lopez et al. 2008, p. 2; BLI 2010c, p. 1). The 
Kaempfer's tody-tyrant has been located in the following 11 localities 
in southeast Brazil: Salto Pira[iacute]; Brusque; the RPPN Volta Velha 
near Itapo[aacute]; S[atilde]o Francisco do Sul municipality; Barra 
Velha municipality; Blumenau municipality; Pi[ccedil]arras/Itajuba 
(Pi[ccedil]arras municipality); Morro do Bau (Ilhota municipality); 
Sanepar bridge (S[atilde]o Jo[atilde]o River); National Park Saint-
Hilare/Langue; Santa Catarina; and Guaragua[ccedil]u Ecological Station 
in southeast Paran[aacute] (BLI 2010c, p. 1). Recent survey records 
have extended the known range to 7,800 km\2\ (3,012 m\2\), although 
within this range the species' existence is sporadic due to fragmented 
habitat. According to BLI, the species is rare, but has been recorded 
in recent years in all of the locations above except Brusque. The last 
record for Brusque is from 1950, and the area has not been resurveyed 
since that time.
Population Estimates
    There is very little information currently available that 
specifically addresses the Kaempfer's tody-tyrant's abundance; however, 
its extant population is estimated to be between 9,000 and 18,500 
individuals and is believed to be declining (BLI 2010c, pp. 1-2).
Conservation Status
    The IUCN considers the Kaempfer's tody-tyrant to be ``Endangered'' 
because it is estimated to have an extremely small and fragmented range 
(BLI 2010c, p. 1). It is protected by Brazilian legislation and by the 
State of Paran[aacute] (Belmontes-Lopez et al 2008, p. 2; BLI 2010c). 
The species is not listed in any of the Appendices of CITES (http://www.cites.org).

VI. Margaretta's Hermit (Phaethornis malaris margarettae)

Species Description
    The Margaretta's hermit is a long-billed hummingbird. The average 
bill length is 37 millimeters (mm) (1.5 in) and the average tail length 
is 42 mm (1.7 in) (Hinkelmann 1996, pp. 122-123). Hinkelmann (1996, p. 
147) describes the species to be morphologically similar to Phaethornis 
malaris bolivianus, with a paler underside.
Taxonomy
    The Margaretta's hermit is in the hummingbird family, Trochilidae, 
but its taxonomic classification has been unclear for many years and is 
still disputed. This species is in the subfamily, Phaethornithinae, 
which are the ``hermit'' hummingbirds that occur in southern Mexico, 
Central America, and in South America as far south as northern 
Argentina. The Margaretta's hermit was first described as a new species 
in 1972 by A. Ruschi (Sibley and Monroe 1990). This bird has variously 
been considered a full species (Phaethornis margarettae) and placed as 
a subspecies with the long-billed hermit (Phaethornis superciliosus) 
and the great-billed hermit (Phaethornis malaris). A multitude of 
information indicates that Margaretta's hermit is most appropriately 
considered to be a subspecies of the great-billed hermit (P. malaris) 
(Howard and Moore 1980, p. 205; King 1981, p. 2; Sibley and Monroe 
1990, p. 143; Sick 1993, p. 341; Hinkelmann 1996, pp. 125-135; del Hoyo 
et al. 1999, p. 543). Neither the IUCN nor BirdLife International 
currently recognizes the subspecies Margaretta's hermit (Phaethornis 
malaris margarettae); only the species level is recognized (BLI 2010j; 
IUCN 2010). IUCN's conservation status for both P. malaris and P. 
superciliosus is ``least concern.'' Birdlife International recognizes 
Phaethornis malaris margarettae as Phaethornis superciliosus (BLI 
2010j). Avibase, a database of all birds of the world maintained by 
Bird Studies Canada, indicates that it is a full species, Phaethornis 
margarettae (Avibase 2010). However, Phaethornis malaris margarettae is 
recognized by the Integrated Taxonomic Information System (ITIS) (ITIS 
2010, http://www.itis.gov) as a subspecies. The 2009 Clement's 
Checklist, maintained by Cornell Lab of Ornithology, also accepts the 
taxonomy as Phaethornis malaris margarettae. Absent peer-reviewed

[[Page 81800]]

information to the contrary and based on the best available 
information, we consider Margaretta's hermit to be a subspecies of 
Phaethornis malaris: Phaethornis malaris margarettae.
Habitat and Life History
    The Margaretta's hermit is endemic to the Atlantic Forest biome and 
is found in shrubby understories of primary- and secondary-growth 
tropical lowland rainforest (King 1981, p. 2; Hinkelmann 1996, pp. 133-
140; Sibley and Monroe 1990, p. 143; del Hoyo et al. 1999, p. 543). 
Hummingbirds feed on the nectar of a variety of plant species, 
especially bromeliads, and often have a symbiotic relationship with 
specific plants for which they function as pollinators (Sick 1993, pp. 
324-326; del Hoyo et al. 1999, p. 543; Buzato et al. 2000, p. 824). 
They also feed on a variety of small arthropods, which are an 
especially important source of protein for raising their young.
    Females typically lay two eggs and are solely responsible for 
tending their young. Hummingbird nests are usually constructed on 
vegetation of items such as detritus, webs, leaves, and animal hair 
cemented together with regurgitated nectar and saliva (Sick 1993, pp. 
330-331). Little is known of the subspecies' seasonal movements, but 
its daily movements within a local area are likely associated with the 
timing of flowering plants that are used for feeding (Sick 1993, pp. 
324-336; del Hoyo et al. 1999, p. 543).
Range and Distribution
    The Margaretta's hermit historically occurred in coastal forested 
habitats from Penambuco to Esp[iacute]rito Santo, Brazil (Sibley and 
Monroe 1990, p. 143; del Hoyo et al. 1999, p. 543; Hinkelmann 1996, pp. 
132-135). The last confirmed occurrence of the Margaretta's hermit is 
from a relatively old (ca. 1978) sighting of the subspecies on a 
privately owned remnant forest called Klabin Farm, which is located in 
Esp[iacute]rito Santo and presently includes 40 km\2\ (15.5 mi\2\) of 
land (King 1981, p. 2). A portion of this area (ca. 15 km\2\ (5.8 
mi\2\)) was designated as the C[oacute]rrego Grande Biological Reserve 
in 1989 (Willis and Oniki 2002, p. 21; Costa 2007, p. 20). We consider 
this to be the species' current range. Margaretta's hermit likely also 
occurred at the Sooretama Biological Reserve in Esp[iacute]rito Santo 
until around 1977 (King 1981, p. 2).
Population Estimates
    The current population of Margaretta's hermit is unknown, although 
it is likely to be small in light of the very limited area the 
subspecies may occupy (King 1981, p. 2).
Conservation Status
    IUCN considered the Margaretta's hermit to be ``Endangered'' 
because its extant population was believed to have an extremely 
restricted distribution and the population is likely very small, if it 
survives at all (King 1981, p. 2). Phaethornis superciliosus and 
Phaethornis malaris are both currently classified as ``Least Concern'' 
by the IUCN, although the taxonomy of Margaretta's hermit is still 
uncertain. Both Phaethornis superciliosus and Phaethornis malaris are 
included in Appendix II of CITES (http://www.cites.org).

VII. Southeastern Rufous-vented Ground-cuckoo (Neomorphus geoffroyi 
dulcis)

Species Description
    The southeastern rufous-vented ground-cuckoo is a large-sized 
terrestrial bird. The cuckoo has a distinctive flat frontal crest, a 
long tail and long legs, and a yellow-green curved bill (Roth 1981, p. 
388; Payne 2005, p. 206). The species is blackish brown or reddish 
black in color, and has brown scale-like coloring on the breast with a 
black breast band and a reddish belly. It has a bare face with gray to 
blue coloring (Payne 2005, p. 206).
Taxonomy
    The southeastern rufous-vented ground-cuckoo is one of seven 
subspecies of the rufous-vented ground-cuckoo (Neomorphus geoffroyi) in 
the Cuculidae family that occur at several disjunct localities from 
Nicaragua to central South America (Howard and Moore 1980, p. 178; 
Sibley and Monroe 1990, p. 107; del Hoyo et al. 1997, pp. 606-607; 
Payne 2005, pp. 204-207). Neither the IUCN nor BirdLife International 
currently addresses this subspecies; only the species level is 
addressed (BLI 2008; IUCN 2009). However, the subspecies is recognized 
by ITIS (ITIS 2009). Absent peer-reviewed information to the contrary 
and based on the best available information, we consider it to be a 
valid subspecies.
Habitat and Life History
    The southeastern rufous-vented ground-cuckoo is an extremely shy, 
ground-foraging bird that requires large blocks of mature, undisturbed, 
tropical lowland forest within the Atlantic Forest biome (King 1981, p. 
1; Sick 1993, p. 286; del Hoyo et al. 1997, pp. 606-607; Payne 2005, 
pp. 204-207). This species is unable to sustain flight for long 
distances, and researchers believe that major rivers and other 
extensive areas of nonhabitat impede their movements.
    Southeastern rufous-vented ground-cuckoos feed on large insects, 
scorpions, centipedes, spiders, small frogs, lizards, and occasionally 
seeds and fruit. The species is agile when on the ground and highly 
adept at running and jumping through branches in pursuit of prey (Sick 
1993, p. 278). The species is often associated with army ant (Eciton 
spp.) and red ant (Solenopsis spp.) colonies, whose foraying columns 
they use as ``beaters'' to flush their prey (Sick 1993, p. 286). They 
are also known to forage for flushed prey behind other species, such as 
the white-lipped peccary (Tayassu pecari) (Sick 1993, p. 286).
    Unlike some other species of cuckoos, southeastern rufous-vented 
ground-cuckoos are not believed to be parasitic nesters. They build 
their own nests approximately 2.5 m (8 ft) above ground level in the 
branches of swampy vegetation (Roth 1981, p. 388; Sick 1993, p. 286). 
The species' nest resembles a shallow bowl, roughly 25 cm (10 in) 
across, made of sticks and lined with leaves. Once the young are 
fledged, the adults care for them away from the nest site (del Hoyo et 
al. 1997, pp. 606-607).
Range and Distribution
    Although the southeastern rufous-vented ground-cuckoo had a 
widespread distribution historically, it has likely always been locally 
rare (King 1981, p. 1). Historic distributions included the Brazilian 
states of Bahia, Minas Gerais, Esp[iacute]rito Santo, and possibly Rio 
de Janeiro (King 1981, p. 1; Payne 2005, p. 207). The last confirmed 
sighting of this subspecies was in the Sooretama Biological Reserve 
north of the Doce River in Esp[iacute]rito Santo in 1977, and the 
subspecies was thought to be extinct (Roth 1981, p. 388; Scott and 
Brooke 1985, pp. 125-126; Payne 2005, p. 207). However, a recent 
photographic record (ca. 2004) indicates that the subspecies may still 
occur at Doce River State Park in Minas Gerais (Scoss et al. 2006, p. 
1).
Population Estimates
    The current population of rufous-vented ground cuckoos is unknown, 
although likely very low if the subspecies still exists (King 1981, p. 
1).
Conservation Status
    In 1981, when the original petition to list this subspecies was 
submitted, IUCN considered the southeastern rufous-vented ground-cuckoo 
to be ``Endangered'' because although the subspecies was ``never 
numerous, this

[[Page 81801]]

extremely shy species is among the first to disappear if its primary 
forest habitat is disturbed and in southeastern Brazil where it occurs, 
most of such forest has been destroyed'' (King 1981, p. 1). As of 2009, 
IUCN characterizes the rufous-vented ground-cuckoo as ``Least 
Concern.'' Neither the species nor the subspecies are listed in any of 
the Appendices of CITES (http://www.cites.org).

Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. A species may be determined to be an endangered or threatened 
species due to one or more of the five factors described in section 
4(a)(1) of the Act. The five factors are: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; and (E) other natural or manmade 
factors affecting its continued existence. Listing actions may be 
warranted based on any of the above threat factors, singly or in 
combination. In considering what factors might constitute threats, we 
look beyond the exposure of the species to determine whether the 
species responds to the factor in a way that causes actual impacts to 
the species and we look at the magnitude of the effect. If there is 
exposure to a factor, but no response, or only a beneficial response, 
that factor is not a threat. If there is exposure and the species 
responds negatively, the factor may be a threat and we then attempt to 
determine how significant the factor is. If the factor is significant 
and therefore a threat, it may drive or contribute to the risk of 
extinction of the species such that the species warrants listing as 
threatened or endangered as those terms are defined by the Act. In 
making this final listing determination, we evaluated threats to each 
of these seven Brazilian bird species. Our evaluation of this 
information is discussed below.
    These seven species all occur in the same biome: The Atlantic 
Forest, and with respect to the Brazilian merganser, also in the 
Cerrado Biome. These species depend on similar physical and biological 
features and on the successful functioning of their ecosystems to 
survive. They also face the same or very similar threats. Although the 
listing determination for each species is analyzed separately, we have 
organized the specific analysis for each species within the context of 
the broader scale and threat factor in which it occurs to avoid 
redundancy. Since these species face a suite of common threat factors, 
similar management actions will reduce or eliminate those threats. 
Effective management of these threat factors often requires 
implementation of conservation actions at a broader scale to enhance or 
restore critical ecological processes and provide for long-term 
viability of those species in their native environment. Thus, by taking 
this broader approach, we hope to organize this final rule effectively.
    We are listing each of the seven species (species may also include 
subspecies, as defined in Section 3(15) of the Act) addressed in this 
rule as endangered. Many of the threats are the same or similar for all 
seven species. For each species, we identified and evaluated those 
factors that threaten the species and that may be common to all of the 
species. For example, the degradation of habitat and habitat loss due 
to deforestation is a threat to each species. We also identified and 
evaluated threats that may be unique to certain species, and that may 
not apply to all of the species addressed in this final rule. For 
example, the Brazilian merganser may be the only species addressed in 
this rule that is found in the Cerrado biome, and we have addressed 
threats that are unique to that species specifically, although most of 
the threats in the Atlantic Forest are the same in the Cerrado biome.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of the Species' Habitat or Range

    The best available information indicates that the threats to all of 
the seven Brazilian species addressed under this factor occur 
throughout the entire range of each species. These threats include the 
loss, degradation, and fragmentation of native habitats within the 
Atlantic Forest biome and, with respect to the Brazilian Merganser, in 
the Cerrado Biome. Habitat loss and fragmentation are the most 
significant threats to these species (Marini and Garcia 2005, p. 667). 
The major human activities that have resulted in the destruction, 
modification, or curtailment of native habitats within the Atlantic 
Forest biome include extensive establishment of agricultural fields 
(e.g., soy beans, sugarcane, and corn), plantations (e.g., eucalyptus, 
pine, coffee, cocoa, rubber, and bananas), livestock pastures, centers 
of human habitation, and industrial developments (e.g., charcoal 
production, steel plants, and hydropower reservoirs). The Cerrado biome 
faces similar threats (Ratter et al. 1997, p. 223; Marini 2009, p. 
1558). Forestry practices such as commercial logging, subsistence 
activities such as fuel wood collection, and changes in fire 
frequencies also contribute to the degradation of the native habitat 
(Scott and Brooke 1985, p. 118; J[uacute]nior et al. 1995, p. 147; 
Nunes and Kraas 2000, p. 44; Saatchi et al. 2001, pp. 868-869; BLI 
2003a, p. 4; TNC 2007, p. 2; Peixoto and Silva 2007, p. 5; World 
Wildlife Fund 2007, pp. 3-51). In addition to the overall loss and 
degradation of native habitat within these biomes, the remaining tracts 
of habitat are severely fragmented.
    Based on a number of recent estimates, 92 to 95 percent of the area 
(over 1,250,000 km\2\ (482,628 mi\2\)) historically covered by tropical 
forests within the Atlantic Forest biome has been converted or severely 
degraded as a result of various human activities (IUCN 1999, p. 22; 
Morellato and Haddad 2000, p. 786; Myers et al. 2000, pp. 853-854; 
Saatchi et al. 2001, p. 868; Butler 2007, p. 2; Conservation 
International 2007a, p. 1; H[ouml]fling 2007, p. 1; TNC 2007, p. 1; 
World Wildlife Fund 2007, pp. 2-41). The Atlantic Forest has the two 
largest cities in Brazil, S[atilde]o Paulo and Rio de Janeiro, and is 
home to approximately 70 percent of Brazil's 169 million people 
(Critical Ecosystem Partnership Fund (CEPF) 2002; The Brazilian 
Institute of Geography and Statistics (IBGE) 2007, Central Intelligence 
Agency Factbook, 2010).
    Conversion to agriculture or plantations creates disturbed areas 
that are conducive to weedy plant invasion and establishment of alien 
plants from dispersed fruits and seeds. Over time, this results in the 
conversion of a community dominated by native vegetation to one 
dominated by nonnative vegetation (leading to negative impacts 
typically associated with nonnative plants, detailed below). Conversion 
to agriculture or plantations also increases watershed erosion, runoff, 
and sedimentation which further degrade habitat. These threats are 
significant, ongoing, and are expected to continue and increase in 
magnitude and intensity into the foreseeable future without adequate 
control.
    Fire is a relatively new human-related threat to native species and 
natural vegetation in Brazil. (Nepstad et al. 2001, p. 395). Farmers 
practice slash-and-burn agriculture that creates open lowland areas 
suitable for the later colonization of nonnative plant species (Nunes 
and Kraas 2000, pp. 44-47).

[[Page 81802]]

Fires of all intensities, seasons, and sources are destructive to the 
Atlantic Forest and Cerrado Biome (Nepstad et al. 2001, p. 395-407). 
Fire can destroy dormant seeds as well as plants, even in steep or 
inaccessible areas. Successive fires that burn farther and farther into 
native habitat destroy native plants and remove habitat for native 
species. These fires alter microclimate conditions and cause conditions 
to be more favorable to alien plants. Alien plant species most likely 
to be spread as a consequence of fire are those that produce a high 
fuel load, are adapted to survive and regenerate after fire, and 
establish rapidly in newly burned areas. The threat from intentional 
and accidental ignition of fires related to slash-and-burn clearing to 
the species in this final rule that depend on forested ecosystems is 
significant. Fire damages native vegetation and these species' habitat, 
including seedlings and juvenile and adult plants.

Species-Specific Evaluation Under Factor A

Black-Hooded Antwren
    The black-hooded antwren appears not to be strictly tied to primary 
forest habitats. It may make use of secondary-growth forests or other 
disturbed areas such as modified restinga (described under Black-Hooded 
Antwren Habitat and Life history above), eucalyptus stands, abandoned 
banana plantations, and recently burned sites (Tobias and Williams 
1996, p. 64; BLI 2010a, p. 1). However, its use of secondary-growth 
forests or other disturbed areas does not necessarily lessen the threat 
to the species from the effects of deforestation and habitat 
degradation. This species, although it may be tolerant of secondary-
growth forests or other disturbed sites, has a small and declining 
population size (estimated to be 1,000--2,499 birds) and a severely 
restricted range of less than 130 km\2\ (50 mi\2\). Its habitat 
continues to be impacted. Habitat degradation can adversely impact this 
species just as equally as it impacts primary forest-obligate species 
(Harris and Pimm 2004, pp. 1612-1613). While the black-hooded antwren 
is relatively abundant locally, the entire range of the species 
encompasses only about 130 km\2\ (50 mi\2\), with only 45 percent of 
this area considered occupied (BLI 2010a, pp. 1-2).
    The black-hooded antwren occurs in one of the most densely 
populated regions of Brazil, and most of the tropical forest habitats 
believed to have been used historically by the species have been 
converted or are severely degraded due to the wide range of human 
activities identified above (BLI 2003a, p. 4; BLI 2010d, p. 2; Collar 
et al. 1992, p. 667; Conservation International 2007a, p. 1; del Hoyo 
2003, p. 616; H[ouml]fling 2007, p. 1; TNC 2007, p. 1; World Wildlife 
Fund 2007, pp. 3-51). In addition, the remaining tracts of suitable 
habitat in Rio de Janeiro and S[atilde]o Paulo are threatened by 
ongoing development of coastal areas, primarily for tourism enterprises 
(e.g., large hotel complexes, beachside housing) and associated 
infrastructure support, as well as widespread clearing for expansion of 
livestock pastures and plantations, primarily for Euterpe palms (also 
known as Acai palms) (Collar et al. 1992, p. 667; BLI 2003a, p. 4; del 
Hoyo 2003, p. 616; World Wildlife Fund 2007, pp. 7 and 36-37; BLI 
2010d, p. 2). These impacts have recently reduced suitable habitats at 
various key sites known to be occupied by the black-hooded antwren, 
such as Vale do Mambucaba and Arir[oacute]. The remaining occupied 
habitats at these sites are subject to ongoing human disturbances such 
as off-road vehicle use, burning, and recreational activities (Collar 
et al. 1994, p. 134; del Hoyo 2003, p. 616; BLI 2010a, p. 2).

Summary of Factor A--Black-Hooded Antwren

    A significant portion of Atlantic Forest habitat has been, and 
continues to be, lost and degraded by various ongoing human activities, 
including logging, establishment and expansion of plantations and 
livestock pastures, urban and industrial developments (including many 
new hydroelectric dams), slash-and-burn clearing, intentional and 
accidental ignition of fires (CEPF 2001, pp. 9-15). Even with the 
recent passage of a national forest policy and despite many other legal 
protections in Brazil (see Factor D), the rate of habitat loss 
throughout the Atlantic Forest biome has increased since the mid-1990s 
(Hodge et al. 1997, p. 1; CEPF 2001, p. 10; Rocha et al. 2005, p. 270). 
Native habitats at many of the remaining sites may be lost over the 
next several years (Rocha et al. 2005, p. 263). Furthermore, because 
the black-hooded antwren's extant population is already small, highly 
fragmented, and believed to be declining (BLI 2010a, pp. 1-3), any 
further loss or degradation of its remaining suitable habitat 
represents a significant threat to the species. Therefore, we find that 
destruction and modification of habitat are threats to the continued 
existence of the black-hooded antwren.
Brazilian Merganser
    The Brazilian merganser is extremely susceptible to habitat loss 
and degradation, habitat fragmentation, and hydrological changes from 
human activity (Collar et al. 1992, pp. 83-84; Silveira 1998, p. 58; 
Silveira and Bartman 2001, pp. 297-298; Hughes et al. 2006, pp. 36-41; 
Lamas 2006, pp. 151-153; Lamas and Lins 2009, p. 5). This species' 
habitat, particularly at the Serra de Canastra National Park (SCNP) in 
Minas Gerais, has been heavily impacted by changes to the hydrology 
around the park. These human activities include the establishment of 
hydroelectric power plants, building of dams and reservoirs, and 
deforestation (Lamas 2006, pp. 151-152). This species is adapted to 
highly oxygenated mountainous flowing riverine conditions, and 
therefore cannot occupy the lacustrine (lake-like) conditions of 
reservoirs that result from dam building activities within its occupied 
range (Hughes et al. 2006, pp. 23, 41). The loss of the species' 
terrestrial habitat has occurred due to the removal of forest cover and 
the degradation of water quality. Current estimates indicate that 
between 67 and 80 percent of the tropical savannah habitat historically 
comprising the Cerrado biome has been converted or severely degraded 
(Mantovani and Pereira 1998, p. 1455; Myers et al. 2000, p. 854; Butler 
2007, p. 1; Conservation International 2007b, p. 1; World Wildlife Fund 
2007, p. 50). Specific threats in SCNP include deforestation and 
subsequent erosion of river banks and siltation; erosion due to cattle 
grazing, mining, and associated dynamiting and waste disposal; domestic 
sewage; and pesticides (Lamas 2006, p. 152). In addition to the overall 
loss and degradation of native habitat within this species' habitat, 
the remaining tracts of habitat are severely fragmented.
    Several secondary impacts that degrade suitable habitats have also 
resulted from the above activities and represent significant risks to 
the Brazilian merganser. These secondary impacts include increased 
runoff and severe siltation (from agricultural fields, livestock 
pastures, deforestation, diamond mining, and human impacts from 
population centers); changes in hydrologic conditions and local water 
tables (as a result of dam operations (e.g., flood control, power 
generation) and excessive pumping for irrigation or domestic and 
industrial water use); and increases in water pollutants (due to 
agricultural, industrial, and domestic waste products) (del Hoyo et al. 
1992, p. 625; Benstead 1994, p. 8; Collar et al.

[[Page 81803]]

1994, p. 51; Pineschi 1999, p. 1; Silveira and Bartman 2001, pp. 297-
298; Braz et al. 2003, p. 70; Lamas and Santos 2004, p. 40; Bianchi et 
al. 2005, p. 73; Hughes et al. 2006, pp. 40-48; Lamas 2006, pp. 151-
153; BLI 2007a, pp. 1-6; Ducks Unlimited 2007, p. 1; Silveira 2008, p. 
421; Lamas and Lins 2009, p. 5). These secondary impacts negatively 
affect the Brazilian merganser by reducing water clarity, altering 
water depths and flow patterns, removing or limiting populations of 
preferred prey species, and introducing toxic compounds. These 
secondary impacts may also increase the risk of introducing disease 
vectors and expanding populations of potential predator and competitor 
species into areas occupied by the Brazilian merganser.
    The loss of habitat throughout the historic range of the Brazilian 
merganser due to the above human activities has drastically reduced the 
species' abundance and extent of its occupied range. These activities 
are currently a significant risk to the species' continued existence 
because populations are being limited to highly fragmented patches of 
habitat (Collar and Andrew 1988, p. 21; Collar et al. 1992, pp. 83-84; 
Collar et al. 1994, p. 51; Benstead 1994, p. 8; Benstead et al. 1994, 
p. 36; Silveira 1998, pp. 57-58; Hughes et al. 2006, pp. 37-48; BLI 
2007a, pp. 1-6). Although this species seems to tolerate some 
environmental degradation if there are well preserved stretches in its 
territory in which the birds can seek shelter (Lamas 2006, p. 151), we 
expect the degree of these threats will continue and likely increase in 
the future.

Summary of Factor A--Brazilian Merganser

    The above-mentioned human activities and their secondary impacts 
have significantly reduced the amount of suitable habitat for the 
Brazilian merganser, and the remaining areas of occupied habitat are 
highly fragmented. In addition, these activities are ongoing and 
continue to adversely impact all of the remaining suitable habitat 
within the Atlantic Forest and Cerrado biomes that may still harbor the 
Brazilian merganser. Even with the recent passage of national forest 
policy and despite many other legal protections in Brazil (see Factor 
D), the rate of habitat loss throughout southeastern Brazil has 
increased since the mid-1990s (Hodge et al. 1997, p. 1; CEPF 2001, p. 
10; Rocha et al. 2005, p. 270). Furthermore, because the Brazilian 
merganser's extant population is already extremely small, highly 
fragmented, and believed to be declining (BLI 2010b, pp. 1-4), any 
further loss or degradation of its remaining suitable habitat will 
severely impact the species (see Factor E). Therefore, based on the 
best scientific data currently available, we find that the present or 
threatened destruction, modification, or curtailment of the species' 
habitat or range threatens the continued existence of the Brazilian 
merganser.
Cherry-Throated Tanager
    Most of the tropical forest habitats believed to have been used 
historically by the cherry-throated tanager have been converted or are 
severely degraded due to human activities (Ridgely and Tudor 1989, p. 
34; Bauer et al. 2000, pp. 98-105; Venturini et al. 2005, p. 68; BLI 
2010d, p. 2). Degraded and fragmented forests cause a decrease in gene 
flow, which may cause inbreeding and decreased fitness of forest 
species (Tabanez and Viana 2000, pp. 929-932). In the Atlantic Forest, 
there is a high percentage of rare tree species (these researchers 
defined rare species as being found only once in the forest fragment). 
Due to their method of reproduction, if these rare tree species are not 
able to cross-pollinate, rather if they are self-pollinating or self-
incompatible (in-breeding), reduction in fitness may occur. This 
inbreeding could lead to an increase in local extinction of tree 
species on which species such as the cherry-throated tanager depends. 
The degradation of forests has led to an increase in density of liana 
(woody vines that may be native or non-native) in the Atlantic forests 
of Brazil in part due to the increase in light availability. Liana 
infestation of these forest fragments cause tree falls and encourage 
gap-opportunistic species to take over (Tabanez and Viana 2000, pp. 
929-932), thus further altering the old forest structure of the cherry-
throated tanager's preferred habitat.
    Secondary impacts that are associated with forest fragmentation and 
degradation include the potential introduction of disease vectors and 
exotic predators within the species' historic range. As a result of 
these secondary impacts, there is often a time lag between the initial 
conversion or degradation of suitable habitats and the extinction of 
endemic bird populations (Brooks et al. 1999a, p. 1; Brooks et al. 
1999b, p. 1140). Therefore, even without further habitat loss or 
degradation, the cherry-throated tanager remains at risk from past 
impacts to its primary forest habitats.

Summary of Factor A--Cherry-Throated Tanager

    The activities described above and their secondary impacts continue 
to threaten the last known tracts of habitat within the Atlantic Forest 
biome that may still harbor the cherry-throated tanager. Because the 
species' extant population is extremely small, highly fragmented, and 
believed to be declining (BLI 2010d, p. 1), any further loss or 
degradation of its remaining suitable habitat will adversely impact the 
cherry-throated tanager. Therefore, we find that past and ongoing 
destruction and modification of the cherry-throated tanager's habitat 
are threats to the continued existence of the species.
Fringe-Backed Fire-Eye
    The fringe-backed fire-eye occurs in one of the most densely human 
populated regions of Brazil. Most of the tropical forest habitats 
believed to have been used historically by the species have been 
converted or are severely degraded due to a wide range of human 
activities described above (Collar and Andrew 1988, p. 102; Collar et 
al. 1992, p. 678; Sick 1993, p. 407; Collar et al. 1994, p. 135; BLI 
2003a, p. 4; del Hoyo et al. 2003, p. 638; Conservation International 
2007a, p. 1; H[ouml]fling 2007, p. 1; TNC 2007, p. 1; World Wildlife 
Fund 2007, pp. 3-51; BLI 2010e, p. 2).
    This species is not believed to be strictly tied to primary forest 
habitats and may be able to make use of early successional, secondary-
growth forests with dense understory vegetation (Collar et al. 1992, p. 
677; del Hoyo et al. 2003, p. 637; BLI 2007e, p. 2). However, this does 
not necessarily lessen the risk to the species from the effects of 
deforestation and habitat degradation. Habitat degradation can 
adversely impact species that tolerate secondary-growth forests as 
equally as it impacts primary forest-obligate species (Harris and Pimm 
2004, pp. 1612-1613). The entire range of the fringe-backed fire-eye 
encompasses approximately 4,990 km\2\ (1,924 mi\2\), with only 20 
percent of this area considered occupied (BLI 2007e, pp. 1-4; BLI 
2010e).
    The susceptibility to extirpation of limited-range species that are 
tolerant of secondary-growth forests or other disturbed sites can occur 
for a variety of reasons. These reasons may include when a species' 
remaining population is already too small or its distribution too 
fragmented such that it may no longer be demographically or genetically 
viable (Harris and Pimm 2004, pp. 1612-1613). In addition, while the 
fringe-backed fire-eye may be tolerant of secondary-growth forests or 
other disturbed sites, these areas may not represent optimal conditions 
for the species, which could include dense understories and abundant 
prey species. For example,

[[Page 81804]]

management of plantations often involves intensive control of the 
site's understory vegetation and long-term use of pesticides, which 
eventually result in severely diminished understory cover and loss of 
potential prey species (Scott and Brooke 1985, p. 118; Saatchi et al. 
2001, pp. 868-869; Rolim and Chiarello 2004, pp. 2687-2691). Such 
management practices eventually result in the loss of native understory 
plant species and create relatively open understories, which the 
fringe-backed fire-eye avoids (Collar et al. 1992, p. 677; del Hoyo et 
al. 2003, p. 637; BLI 2007e, p. 2).
    Secondary impacts associated with the above human activities 
include the potential introduction of disease vectors or exotic 
predators within the species' historic range (see Factor C). As a 
result of these secondary impacts, there is often a time lag between 
the initial conversion or degradation of suitable habitats and the 
extinction of endemic bird populations (Brooks et al. 1999a, p. 1; 
Brooks et al. 1999b, p. 1140). Even when potentially occupied sites may 
be formally protected (see Factor D), the remaining fragments of 
forested habitat will likely undergo further degradation due to their 
altered dynamics and isolation (through infestation of gap-
opportunistic species, which alter forest structure and decrease in 
gene flow between species) (Tabanez and Viana 2000, pp. 929-932). 
Therefore, even without further habitat loss or degradation, the 
fringe-backed fire-eye remains at risk from past impacts to its 
suitable habitats.

Summary of Factor A--Fringe-Backed Fire-Eye

    Most of the tropical forest habitats believed to have been used 
historically by the fringe-backed fire-eye have been converted or are 
severely degraded due to the above human activities. In addition, the 
remaining tracts of suitable habitat potentially used by the species, 
including many secondary-growth forests, are subject to ongoing 
clearing for agriculture fields and plantations (e.g., sugar cane and 
oil palm), livestock pastures, and industrial and residential 
developments (Collar and Andrew 1988, p. 102; Collar et al. 1992, p. 
678).
    Even with the recent passage of national forest policy and in the 
face of many other legal protections in Brazil (see Factor D), the rate 
of habitat loss throughout the Atlantic Forest biome has increased 
since the mid-1990s (Hodge et al. 1997, p. 1; CEPF 2001, p. 10; Rocha 
et al. 2005, p. 270), and native habitat at many of the remaining sites 
where this species exists may be lost over the next several years 
(Rocha et al. 2005, pp. 263, 270). Furthermore, because the species' 
extant population is already small, highly fragmented, and believed to 
be declining (BLI 2010e, p. 1), any further loss or degradation of its 
remaining suitable habitat represents significant threat to the species 
(see Factor E). Therefore, we find that destruction and modification of 
habitat are threats to the continued existence of the fringe-backed 
fire-eye.
Kaempfer's Tody-Tyrant
    The Kaempfer's tody-tyrant is not strictly tied to primary forest 
habitats and can inhabit secondary-growth areas (Collar et al. 1992, p. 
776; Barnett et al. 2000, pp. 372-373, 377; BLI 2010c, pp. 1-2). 
However, this does not lessen the threat to the species from the 
effects of ongoing deforestation and habitat degradation. This species 
has a restricted range (i.e., less than 21,000 km\2\ (8,100 mi\2\)), 
and its habitat is likely to continue to shrink and become more 
degraded due to development along the coast and secondary impacts that 
accompany development. Thus, habitat degradation can adversely impact 
such species just as equally as it impacts primary forest-obligate 
species (Harris and Pimm 2004, pp. 1612-1613).
    The susceptibility to extirpation of limited-range species that are 
tolerant of secondary growth occurs for a variety of reasons. These 
reasons include when a species' remaining population is already too 
small or its distribution too fragmented such that it may no longer be 
demographically or genetically viable (Harris and Pimm 2004, pp. 1612-
1613). In addition, while the Kaempfer's tody-tyrant may be tolerant of 
secondary-growth forests or other disturbed sites, some areas may not 
represent optimal conditions for the species. For example, management 
of plantations often involves intensive control of the site's 
understory vegetation and long-term use of pesticides, which eventually 
result in severely diminished understory cover and increased incidence 
of potential prey species (Scott and Brooke 1985, p. 118; Saatchi et 
al. 2001, pp. 868-869; Rolim and Chiarello 2004, pp. 2687-2691). Such 
management practices eventually result in the loss of native understory 
plant species and relatively open understories. Insectivorous birds 
that feed in the understory, including those in the genus Hemitriccus, 
are especially vulnerable to such habitat modifications (Goerck 1997, 
p. 117). While the Kaempfer's tody-tyrant may inhabit some degraded 
habitat, this species does not appear to occupy altered sites such as 
plantations (Barnett et al. 2000, p. 377).
    Even when potentially occupied sites are formally protected (see 
Factor D), the remaining fragments of forested habitat may undergo 
further degradation. The degradation is due to the area's altered 
dynamics and species isolation. This is characterized by decreased gene 
flow, an increase in inbreeding, decrease in species fitness, increase 
in liana infestation, and dominance of gap-obligate species (Tabanez 
and Viana 2000, pp. 929-932). Secondary impacts that are associated 
with human activities that degrade and remove native habitats within 
the Atlantic Forest biome include the potential introduction of disease 
vectors and exotic predators within the species' historic range (see 
Factor C). As a result of these secondary impacts, there is often a 
time lag between the initial conversion or degradation of suitable 
habitats and the extinction of endemic bird populations (Brooks et al. 
1999a, p. 1; Brooks et al. 1999b, p. 1140). Therefore, even without 
further habitat loss or degradation, the Kaempfer's tody-tyrant remains 
at risk from past impacts to its suitable forested habitats.

Summary of Factor A--Kaempfer's Tody-Tyrant

    The Kaempfer's tody-tyrant occurs in one of the most densely 
populated regions of Brazil, and most of the tropical forest habitats 
believed to have been used historically by the species have been 
converted or are severely degraded due to the range of human activities 
identified above. In addition, the remaining tracts of suitable habitat 
potentially used by the species, including many secondary-growth 
forests, are subject to ongoing clearing for agricultural fields, 
plantations (e.g., banana, palmetto, and rice), logging, livestock 
pastures, and industrial and residential developments (Collar et al. 
1992, p. 776; Barnett et al. 2000, pp. 377-378; BLI 2010c, p. 4).
    Even with the recent passage of national forest policy and despite 
many other legal protections in Brazil (see Factor D), the rate of 
habitat loss throughout the Atlantic Forest biome has increased since 
the mid-1990s (Hodge et al. 1997, p. 1; CEPF 2001, p. 10; Rocha et al. 
2005, p. 270). Native habitat at many of the remaining sites may 
continue to be lost over the next several years (Rocha et al. 2005, p. 
263). In addition, because the extant population of the Kaempfer's 
tody-tyrant is already small, highly fragmented, and believed to be 
declining (BLI 2010c, pp. 1-3), any further loss or degradation of its 
remaining suitable habitat will adversely impact the species. 
Therefore,

[[Page 81805]]

we find that destruction and modification of habitat are threats to the 
continued existence of the Kaempfer's tody-tyrant.
Margaretta's Hermit
    Most of the tropical forest habitats believed to have been used 
historically by the Margaretta's hermit have been converted or are 
severely degraded due to habitat destruction for uses such as 
agriculture, development, or firewood, similar to the other species 
above. The Margaretta's hermit cannot occupy these extensively altered 
areas (ICBP 1981, p. 2; Scott and Brooke 1985, p. 118; Sick 1993, p. 
338; del Hoyo et al. 1999, p. 543). While the Margaretta's hermit is 
not strictly tied to primary forest habitats and can make use of 
secondary-growth forests, this does not lessen the threat to the 
subspecies from the effects of deforestation and habitat degradation. 
Habitat degradation can adversely impact species that are tolerant of 
secondary-growth forests just as equally as it impacts primary forest 
obligate species (Harris and Pimm 2004, pp. 1612-1613).
    The susceptibility to extirpation of rare, limited-range species 
that are tolerant of secondary-growth forests occurs for a variety of 
reasons, such as when a species' remaining population is already too 
small or its distribution too fragmented such that it may no longer be 
demographically or genetically viable (Harris and Pimm 2004, pp. 1612-
1613). The last site known to be occupied by the Margaretta's hermit 
totaled only about 40 km\2\ (15 mi\2\) (ICBP 1981, p. 2). While the 
Margaretta's hermit may be tolerant of secondary-growth forests, they 
may not represent optimal conditions for the species. For example, many 
hummingbird species are susceptible to excessive sunlight and readily 
abandon their nests in altered forested sites that receive too much 
exposure from sunlight (Sick 1993, p. 331). This exposure can occur due 
to various human activities that result in partial clearing (e.g., 
selective logging). In addition, management of plantations often 
involves intensive control of the site's understory vegetation, which 
eventually results in severely diminished understory cover as well as 
food sources (Rolim and Chiarello 2004, pp. 2679-2680; Saatchi et al. 
2001, pp. 868-869). Even if the forest canopy structure remains largely 
intact, such management practices eventually result in loss of native 
understory plant species and severely altered understory structure and 
dynamics, which can be especially detrimental to species such as the 
Margaretta's hermit.
    Additionally, even when forested lands are formally protected (see 
Factor D), the remaining fragments of habitat where the subspecies may 
still occur will likely continue to undergo degradation due to their 
altered dynamics and isolation (Tabanez and Viana 2000, pp. 929-932). 
The potential introduction of disease vectors or exotic predators 
within the subspecies' historic range (see Factor C) is a secondary 
impact that can be associated with human activities and that can 
further degrade the remaining tracts of forested habitat potentially 
used by the subspecies. As a result of secondary impacts, there is 
often a time lag between the initial conversion or degradation of 
suitable habitats and the extinction of endemic bird populations 
(Brooks et al. 1999a, p. 1; Brooks et al. 1999b, p. 1140). Therefore, 
even without further habitat loss or degradation, the Margaretta's 
hermit remains at risk from past impacts to its suitable forested 
habitats.

Summary of Factor A--Margaretta's Hermit

    The Margaretta's hermit's range occurs within one of the most 
densely populated regions of Brazil. Human activities and their 
secondary impacts continue to threaten the last known tracts of habitat 
within the Atlantic Forest biome that may still harbor the Margaretta's 
hermit. Even with the recent passage of national forest policy and 
despite many other legal protections in Brazil (see Factor D), the rate 
of habitat loss throughout the Atlantic Forest biome has increased 
since the mid-1990s, and native habitats at many of the remaining sites 
where this species is likely to occur may be lost over the next several 
years (Rocha et al. 2005, p. 263). The Margaretta's hermit has already 
been reduced to such an extent that it is now only known from a 
relatively old (ca. 1978) sighting (ICBP 1981, p. 2; Willis and Oniki 
2002, p. 21), and any further loss or degradation of its remaining 
suitable habitat could cause the extinction of this subspecies. 
Therefore, we find that destruction and modification of habitat are 
threats to the continued existence of the Margaretta's hermit.
Southeastern Rufous-Vented Ground-Cuckoo
    Most of the tropical forest habitats believed to have been used 
historically by the southeastern rufous-vented ground-cuckoo have been 
converted or severely degraded by the human activities discussed above 
(ICBP 1981, p. 1; Scott and Brooke 1985, p. 118; Sick 1993, p. 286; del 
Hoyo et al. 1997, pp. 606-607; Payne 2005, p. 207). Terrestrial 
insectivorous birds that are primary forest-obligate species, such as 
the southeastern rufous-vented ground-cuckoo, are especially vulnerable 
to habitat modifications (Goerck 1997, p. 116), and cannot occupy these 
extensively altered habitats. Del Hoyo et al. (1997, p. 207) suggest 
that the rufous-vented ground-cuckoo would be one of the first species 
to be extirpated from an area when its primary forest habitat is 
isolated. This is based on the extirpation of another Neomorphus 
geoffroyi subspecies at Barro Colorado in response to operations of the 
Panama Canal (del Hoyo et al. 1997, pp. 606-607; Payne 2005, p. 207).
    Even when they are formally protected (see Factor D), the remaining 
fragments of primary forest habitat where the subspecies may still 
occur will likely undergo further degradation due to their altered 
dynamics and isolation (Tabanez and Viana 2000, pp. 929-932). In 
addition, secondary impacts associated with human activities include 
the potential introduction of disease vectors or exotic predators 
within the subspecies' historic range (see Factor C). As a result of 
the above influences, there is often a time lag between the initial 
conversion or degradation of suitable habitats and the extinction of 
endemic bird populations (Brooks et al. 1999a, p. 1; Brooks et al. 
1999b, p. 1140). Therefore, even without further habitat loss or 
degradation, the southeastern rufous-vented ground-cuckoo remains at 
risk from past impacts to its primary forest habitats.

Summary of Factor A--Southeastern Rufous-Vented Ground-Cuckoo

    The above human activities and their secondary impacts continue to 
threaten the remaining tracts of habitat within the Atlantic Forest 
biome that may still harbor the southeastern rufous-vented ground-
cuckoo (del Hoyo et al. 1997, pp. 606-607; BLI 2003a, p. 4; 
Conservation International 2007a, p. 1; H[ouml]fling 2007, p. 1; TNC 
2007, p. 1; Payne 2005, p. 207; World Wildlife Fund 2007, pp. 3-51). 
Even with the recent passage of national forest policy, and despite 
many other legal protections in Brazil (see Factor D), the rate of 
habitat loss throughout southeastern Brazil has increased since the 
mid-1990s (Hodge et al. 1997, p. 1; CEPF 2001, p. 10; Rocha et al. 
2005, p. 270). The subspecies' population has already been reduced to 
such an extent that it is now only known from one possible recent (ca. 
2004) sighting of a single bird (Scoss et al. 2006, p. 1). Any further 
loss or degradation of remaining suitable habitat could cause the

[[Page 81806]]

extinction of this subspecies. Therefore, we find that destruction and 
modification of habitat are threats to the continued existence of the 
southeastern rufous-vented ground-cuckoo.

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

Black-hooded antwren, Cherry-throated tanager, Fringe-backed fire-eye, 
Kaempfer's tody-tyrant, and Southeastern rufous-vented ground-cuckoo
    Other than bird watching, we are unaware of any commercial, 
recreational, scientific, or educational purpose for which the black-
hooded antwren, Cherry-throated tanager, Fringe-backed fire-eye, 
Kaempfer's tody-tyrant, and Southeastern rufous-vented ground-cuckoo 
are currently being used. Ecotourism such as bird watching is a vital 
component of conservation efforts. These efforts focus people's 
awareness on the forest and its value. Ecotourism, although it may have 
detrimental effects in some cases, is generally considered important to 
species' long-term conservation (Riley & Wardill 2001; Whitten 2006). 
The best available information does not indicate that tourism, 
particularly bird watching, threatens any of these species. As a 
result, we do not consider overutilization to threaten the continued 
existence of the black-hooded antwren, cherry-throated tanager, fringe-
backed fire-eye, Kaempfer's tody-tyrant, and southeastern rufous-vented 
ground-cuckoo.
    For the following two species, Brazilian merganser and Margaretta's 
hermit, additional discussion of threats follows.
Brazilian Merganser
    Historically, there was likely little rangewide hunting pressure on 
the Brazilian merganser, presumably due to the species' secretive 
nature, naturally low densities in relatively inaccessible areas, and 
poor palatability (Partridge 1956, p. 478; Silveira and Bartman 2001, 
p. 297; Lamas 2006, pp. 152-153). Since the first formal description of 
the species in the early 1800s, the Brazilian merganser was collected 
for scientific study and museum exhibition (Hughes et al. 2006, p. 46; 
BLI 2007a, p. 2). Past hunting and specimen collection may have 
contributed to the species' decline in some areas (Hughes et al. 2006, 
p. 46). These activities may continue today, although presumably at 
very low levels (Benstead 1994, p. 8; Hughes et al. 2006, p. 48). In 
the proposed rule, species collection for scientific study, museum 
exhibition, and hunting were mentioned as possibly affecting 
populations of the Brazilian merganser. Although these may occur, the 
best available information does not indicate that they are occurring on 
a scale that threatens this species (BLI 2010b, p. 2). Therefore, we do 
not believe these activities are threats to the species.
    Tourism is known to occur in SCNP; however, it currently does not 
appear to be a threat to the species (Lamas 2006, p. 152). SCNP's 
protected area is approximately 715 km\2\ (276 mi\2\) (Lamas 2006, p. 
146). The park was specifically created to protect the headwaters of 
the S[atilde]o Francisco River (2,830 km (1,760 mi) in length), and to 
protect wildlife in Southeastern Brazil. Although the Brazilian 
merganser is a shy species, some birds may become habituated to 
tourism. A breeding pair was observed for several years that inhabited 
a frequently visited area of the park (Bartmann 1988; Silveira and 
Bartmann 2001 in Lamas 2006, p. 152). This is uncommon behavior for 
this species, but it demonstrates that some of these birds are able to 
tolerate some amount of tourism. Additionally, although tourism occurs 
in the park, tourists do not access the entire area that may be 
potentially inhabited by the Brazilian merganser. Not all of the 
suitable habitat for this species is easily accessible to tourists 
(Lamas 2006, pp. 146-147). Based on surveys done by Lamas, it appears 
that there is adequate habitat in the park for the species to conduct 
breeding and feeding activities despite the level of tourism that 
occurs. During the 2001-2002 period, 49 stream segments were surveyed, 
and this species was found in 9 locations; 81 birds were believed to 
inhabit the areas sampled (Lamas 2006, pp. 145, 149). There appears to 
be a healthy population of Brazilian mergansers in this park, and 
again, not all of the suitable habitat for this species is easily 
accessible to tourists. The amount of tourism occurring does not appear 
to negatively affect this species based on the unexpectedly high number 
of birds encountered during the 2001-2002 survey results. Therefore, we 
do not find that tourism is a threat to the species.
    We are unaware of any other commercial, recreational, scientific, 
or educational purpose for which the Brazilian merganser is currently 
being used. As a result, we do not consider overutilization to threaten 
the continued existence of the Brazilian merganser.
Margaretta's Hermit
    In the past, many species of hummingbirds that occur in 
southeastern Brazil such as the Margaretta's hermit were collected for 
use in the fashion industry due to their colorful plumage. Populations 
of some species have been extirpated or remain severely diminished as a 
result (Sick 1993, pp. 337-338). Due to concerns about hummingbirds in 
international trade, in 1987, the entire family, Trochilidae, was 
listed in Appendix II of CITES (www.cites.org). CITES is a treaty that 
implements a system of permits to regulate international trade in 
certain protected animal and plant species.
    Appendix II of CITES includes species that, although not 
necessarily threatened presently with extinction, may become so unless 
the trade in specimens is strictly controlled. International trade in 
specimens of Appendix-II species is authorized through permits or 
certificates, once the granting authorities have ascertained certain 
factors, including that trade will not be detrimental to the survival 
of the species in the wild, and that the specimen was legally acquired 
(www.cites.org).
    Since the listing of the family under CITES in 1987, there have 
been eight CITES-permitted international transactions in specimens of 
the species Phaethornis malaris; however, no trade has been reported at 
the subspecies level, Phaethornis malaris margarettae (John Caldwell, 
United Nations Environment Programme, World Conservation Monitoring 
Centre (UNEP-WCMC), pers. comm., May 13, 2008). According to WCMC, the 
8 transactions involved a total of 30 specimens of Phaethornis malaris, 
which were imported into the United States from the United Kingdom, 
Peru, and Suriname. The two latter countries are within the species' 
range (John Caldwell, UNEP-WCMC, pers. comm., May 12, 2008). Due to the 
suspected small, declining population and restricted range of the 
Margaretta's hermit, we believe that the 30 specimens reported in trade 
were not this subspecies. Furthermore, we are unaware of any unreported 
CITES trade or illegal international trade in specimens of Margaretta's 
hermit. Therefore, we believe that international trade is not a factor 
influencing the subspecies' status in the wild.
    Local hummingbird populations may also be impacted by collection 
for various uses, including scientific research, preparation of 
``novelty'' exhibits, consumption in local dishes, and for the zoo or 
pet trade (Scott and Brooke 1985, p. 118; Sick 1993, pp. 337-338; Rolim 
and Chiarello 2004, pp. 2679-2680). However, the best available 
information does not indicate that these

[[Page 81807]]

activities occur with respect to the Margaretta's hermit.
    The population of the Margaretta's hermit is likely extremely small 
and occurs within a severely restricted range. Due to its rarity, the 
removal or dispersal of any individuals of this subspecies or even a 
slight decline in the population's fitness due to any intentional or 
inadvertent hunting and specimen collection would adversely impact the 
subspecies' overall viability (see Factor E). However, while these 
potential influences remain a concern for future management of the 
Margaretta's hermit, we are unaware of any other commercial, 
recreational, scientific, or educational purpose for which the 
Margaretta's hermit is currently being utilized.

Summary of Factor B

    The best available information does not indicate that 
overutilization for commercial, recreational, scientific, or 
educational purposes are threats to the seven bird species addressed in 
this rule. Therefore, we find that overutilization for commercial, 
recreational, scientific, or educational purposes is not a threat to 
any of these seven species.

C. Disease or Predation

Black-Hooded Antwren, Brazilian Merganser, Cherry-Throated Tanager, 
Fringe-Backed Fire-eye, Kaempfer's Tody-Tyrant, Margaretta's Hermit, 
and Southeastern Rufous-Vented Ground-Cuckoo
    Diseases of these seven species are poorly known and are not 
currently considered to be a threat to the Black-hooded antwren, 
Brazilian Merganser, Cherry-throated tanager, Fringe-backed fire-eye, 
Kaempfer's tody-tyrant, Margaretta's hermit, and Southeastern rufous-
vented ground-cuckoo, or a factor in their decline. Large, stable 
populations of wildlife species are generally able to adapt to natural 
levels of disease within their historic ranges. However, the extant 
populations of these seven species are considered to be small, 
fragmented, and declining (see species descriptions above). Extensive 
human activity in previously undisturbed or isolated areas has been 
known to lead to the introduction and spread of exotic diseases such as 
West Nile virus. Some of these diseases can negatively impact endemic 
bird populations (Neotropical News 2003, p. 1; Naugle et al. 2004, p. 
704). However, there is no evidence that disease is negatively 
impacting any of these seven bird species.
    Extensive human activity in previously undisturbed or isolated 
areas can also lead to altered predator populations and the 
introduction of various exotic predator species, such as feral cats 
(Felis catus) and rats (Ratus spp.), which can be especially harmful to 
populations of endemic bird species (Courchamp et al. 1999, p. 219; 
Small 2005, p. 257; American Bird Conservancy 2007, p. 1; Duncan and 
Blackburn 2007, pp. 149-150; Salo et al. 2007, pp. 1241-1242). Large, 
stable populations of wildlife species generally adapt to natural 
levels of predation within their historic ranges. However, the best 
available scientific and commercial information does not indicate that 
the occurrence of predation is of sufficient magnitude that it 
threatens the Black-hooded antwren, Cherry-throated tanager, Fringe-
backed fire-eye, Kaempfer's tody-tyrant, and Southeastern rufous-vented 
ground-cuckoo. Nor do we expect the degree of predation on each of 
these species to increase in the future.
    For the following two species, Brazilian merganser and Margaretta's 
hermit, additional discussion of potential predation threats follows.
Brazilian Merganser
    There are a number of suspected predators of the Brazilian 
merganser (Hughes et al. 2006, p. 44; Lamas and Santos 2004, p. 39; 
Partridge 1956, p. 486). Lins and colleagues observed a great black-
hawk (Buteogallus urubitinga) swooping over a merganser in Serra da 
Canastra. The merganser evaded capture by diving under the water each 
time the hawk got close (Lamas and Lins 2009, p. 4). Partridge (1956, 
p. 480) also drew attention to the black-and-white hawk-eagle as 
amongst the most dangerous predators of Brazilian merganser in 
Argentina. The same author highlighted the ``dourado'' (Salminus 
brasiliensis, syn. maxillosus), one of the most voracious fish of the 
upper Paran[aacute], as a potential enemy to young ducklings of any 
species. Partridge hypothesized that the species' distribution may be 
naturally limited to upper river tributaries above waterfalls due to 
predation of their young by large predatory fish, such as the dourado. 
In addition, extensive human activity in previously undisturbed or 
isolated areas can result in altered predator or competitor (e.g., 
cormorant (Phalacrocorax spp.)) populations and the introduction of 
various exotic predator species, such as feral dogs (Canis familiaris) 
and fish such as the largemouth bass (Micropterus salmoides) (Hughes et 
al. 2006, pp. 44-45). However, the best available scientific and 
commercial information does not indicate that the occurrence of these 
predators causes significant threats to the Brazilian merganser.
Margaretta's Hermit
    With regard to predation, a variety of reptiles (e.g., snakes, 
lizards) and predatory birds (e.g., owls, hawks) are known to prey on 
hummingbirds (Sick 1993, pp. 336-337). Young hummingbirds can be 
parasitized by botflies (Philornis spp.) (Sick 1993, pp. 336-337). 
Furthermore, nestling hummingbirds can be killed by raiding army ants 
(Eciton spp.), while some hornets and bees are potential competitors 
for flower nectar and have been known to lethally sting adult 
hummingbirds. Although this species is affected by predators, the 
available information suggests that predation is naturally occurring at 
a normal level and is a normal aspect of population dynamics. As a 
result, we do not believe that predation is considered to currently 
pose a threat to this species. The best available scientific and 
commercial information does not indicate that the occurrence of these 
predators or parasites causes significant threats to the Margaretta's 
hermit.

Summary of Factor C

    Disease and predation remain a concern for the management of each 
of these seven species (black-hooded antwren, Brazilian merganser, 
cherry-throated tanager, fringe-backed fire-eye, Kaempfer's tody-
tyrant, Margaretta's hermit, and the southeastern rufous-vented ground-
cuckoo). However, the best available information does not indicate that 
the occurrence of disease or predation incurred by these species rises 
to the level of threats that place any of these species at risk of 
extinction. As a result, we do not find that disease or predation 
threatens the continued existence of any of these seven species.

D. The Inadequacy of Existing Regulatory Mechanisms

    All of these seven species are formally recognized as 
``endangered'' in Brazil (Order No. 1.522) and are directly protected 
by various laws promulgated by the Brazilian government (Collar et al. 
1992, p. 667; ECOLEX 2007, pp. 1-2; BLI 2010d, p. 2). For example, 
there are measures that prohibit, or regulate through Federal agency 
oversight, the following activities with regard to endangered species: 
Export and international trade (e.g., Decree No. 76.623, Order No. 419-
P), hunting (e.g., Act No. 5.197), collection and research (Order No. 
332), captive propagation (Order No. 5), and general harm (e.g.,

[[Page 81808]]

Decree No. 3.179). These measures (1) prohibit exploitation of the 
remaining primary forests within the Atlantic Forest biome (e.g., 
Decree No. 750, Resolution No. 10); (2) govern various practices 
associated with the management of primary and secondary forests, such 
as logging, charcoal production, reforestation, recreation, and water 
resources (e.g., Resolution No. 9, Act No. 4.771, Decree No. 1.282, 
Decree No. 3.420, Order No. 74-N, Act No. 7.803); (3) establish 
provisions for controlling forest fires (e.g., Decree No. 97.635, Order 
No. 231-P, Order No. 292-P, Decree No. 2.661); and (4) regulate 
industrial developments, such as hydroelectric plants and biodiesel 
production (e.g., Normative Instruction No. 65, Law No. 11.116).
    There are also various regulatory mechanisms (Law No. 11.516, Act 
No. 7.735, Decree No. 78, Order No. 1, Act No. 6.938) in Brazil that 
direct Federal and State agencies to promote the protection of lands 
and that govern the formal establishment and management of protected 
areas to promote conservation of the country's natural resources 
(ECOLEX 2007, pp. 5-7). These mechanisms generally aim to protect 
endangered wildlife and plant species, genetic resources, overall 
biodiversity, and native ecosystems on Federal, State, and privately 
owned lands (e.g., Law No. 9.985, Law No. 11.132, Resolution No. 4, 
Decree No. 1.922). Brazil's formally established protection areas were 
developed in 2000 and are categorized based on their overall management 
objectives. These include national parks, biological reserves, 
ecological reserves, ecological stations, environmental protection 
areas, and national forests (Ryland 2005, pp. 612-618). These areas 
allow varying uses and provide varying levels of protection for 
specific resources (Costa 2007, pp. 5-19). For example, Biological 
Reserves are restricted to a greater extent than the National Parks. 
Official uses of reserves include scientific study, environmental 
monitoring, and scientific education (Costa 2007, p. 9).
    Protected areas were recommended for the majority of 900 priority 
areas for biodiversity conservation for Brazil's major biomes. 
Establishment of biodiversity corridors, with parks and reserves as key 
elements and the creation of protected areas in the 23 Amazonian 
ecoregions identified by World Wildlife Fund, was also recommended. As 
of 2005, there were 478 protected areas totaling 37,019,697 ha 
(14,981,340 ac). In addition to the Federal and State protected areas, 
there are also 450 private natural heritage reserves (RPPNs). In June 
2010, 4 new protected areas in the Atlantic Forest's Bahia region were 
established through decree encompassing 65,070 ha (160,791 ac) 
(Conservation International 2010). Although these protected areas 
exist, activities such as deforestation and sustainable-use practices 
still occur in the Cerrado and Atlantic Forest regions (Ryland 2005, p. 
616).
    Brazil is faced with competing priorities of encouraging 
development for economic growth and resource protection. In the past, 
the Brazilian government, through various regulations, policies, 
incentives, and subsidies, has actively encouraged settlement of 
previously undeveloped lands in southeastern Brazil, which helped 
facilitate the large-scale habitat conversions that have occurred 
throughout the Atlantic Forest and Cerrado biomes (Ratter et al. 1997, 
pp. 227-228; Saatchi et al. 2001, p. 874; Brannstrom 2000, p. 326; 
Butler 2007, p. 3; Conservation International 2007c, p. 1; Pivello 
2007, p. 2). These development projects include logging, housing and 
tourism developments, and expansion of plantations (Collar et al. 1992, 
p. 776; Ratter et al. 1997, pp. 227-228; Barnett et al. 2000, pp. 377-
378; Saatchi et al. 2001, p. 874; Butler 2007, p. 3). All of these 
projects impact potentially important sites for each of these seven 
species and would affect habitat within and adjacent to established 
protection areas (Collar et al. 1992, p. 776; Barnett et al. 2000, p. 
377-378). The Brazilian government encouraged further development of 
dams for hydroelectric power, irrigation, or municipal water supplies; 
expansion of agricultural practices, primarily for soybean production; 
and tourism enterprises (Braz et al. 2003, p. 70; Hughes et al. 2006, 
pp. 51-56). These competing priorities make it difficult to enforce 
regulations that protect the habitat of these seven species.
    Thus, for the above reasons as well as lack of funding, personnel, 
or local management commitment, some of Brazil's protected areas exist 
without the current capacity to achieve their stated natural resource 
objectives (Neotropical News 1996, pp. 9-10; Neotropical News 1999, p. 
9; IUCN 1999, pp. 23-24; Bruner et al. 2001, p. 125; ADEJA 2007, pp. 1-
2; Costa 2007, p. 7). The Worldwide Fund for Nature found that 47 of 86 
protected areas were below the minimum level of implementation of 
Federal requirements, with only seven considered to be fully 
implemented (Neotropical News 1999, p. 9). More recently, the Brazilian 
government has given greater recognition to the environmental 
consequences of such rapid expansion, and has taken steps to better 
manage some of the natural resources potentially impacted (Nunes and 
Kraas 2000, p. 45; Neotropical News 2003, p. 13; Venturini et al. 2005, 
p. 68; Butler 2007, p. 7; Costa 2007, p. 7). Despite these efforts, 
threats to areas containing habitat for each of these seven species 
continue (ADEJA 2007, pp. 1-2; BLI 2010d, p. 2). Therefore, even with 
the expansion or further designation of protected areas, it is unlikely 
that the identified impacts to each of these seven species (e.g., 
habitat loss due to residential and agricultural encroachment, resource 
extraction, and grazing) will be adequately addressed through existing 
regulatory mechanisms at the sites where these species are found or in 
their habitat.

Species-Specific Evaluations under Factor D

Black-Hooded Antwren
    The black-hooded antwren occurs in a narrow coastal band below Rio 
de Janeiro. It has been seen in the buffer zone around Serra da 
Boca[iacute]na National Park and possibly within Tamoios Environmental 
Protection Area and the Ecological Reserve of Jacarepi[aacute] (del 
Hoyo 2003, p. 616; World Twitch 2007, p. 12; BLI 2010d, p. 2). It has 
been recommended that some of the sites where the species has been 
found be expanded and other sites be designated to ensure the species' 
currently occupied range is within protected areas.
    Brazil's laws requiring resource protection that should benefit the 
black-hooded antwren are not effective due to the pressure to develop 
that is occurring in coastal areas south of Rio de Janeiro. Despite the 
existence of regulatory mechanisms to protect the species and its 
habitat, habitat loss throughout the Atlantic Forest biome has 
increased for more than a decade, with adverse impacts continuing and 
likely increasing into the foreseeable future. The existing regulatory 
mechanisms have proven difficult to enforce (Scott and Brooke 1985, pp. 
118, 130; Neotropical News 1997b, p. 11; BLI 2003a, p. 4; Conservation 
International 2007c, p. 1; Costa 2007, p. 7; TNC 2007, p. 2; Peixoto 
and Silva 2007, p. 5). As a result, threats to the black-hooded 
antwren's remaining habitat are ongoing (see Factor A) due to the 
challenges that Brazil faces to balance its competing development and 
conservation priorities. Therefore, when viewed in combination with the 
habitat threats identified in Factor A, we find that the existing 
regulatory mechanisms are

[[Page 81809]]

inadequate to ameliorate the current threats to the black-hooded 
antwren.
Brazilian Merganser
    The Brazilian merganser is legally protected by national 
legislation promulgated by the governments in all three countries 
(Brazil, Argentina, and Paraguay) where it historically occurred 
(Hughes et al. 2006, pp. 50-57). According to the best available 
information, the vast majority of the species' remaining suitable 
habitats occurs (Hughes et al. 2006, pp. 28-31; BLI 2009a, pp. 1-2) in 
Brazil, and it is unclear whether there are populations remaining in 
Argentina and Paraguay (BLI 2010b). The Brazilian merganser is formally 
recognized as ``endangered'' (Order No. 1.522) in Brazil, and there are 
regulatory mechanisms that require direct protection of the species 
(ECOLEX 2007, pp. 1-2).
    Four of Brazil's protected areas represent the major sites where 
the Brazilian merganser still occurs (Hughes et al. 2006, pp. 53-54). 
It occurs in a few fragmented locations in south-central Brazil, 
including the upper tributaries of rivers within the Atlantic Forest 
biome and to the west in the Cerrado biome (Silveira and Bartmann 2001, 
pp. 287-288; DePaula et al. 2008, p. 289). Notable among these areas 
are the Serra da Canastra National Park in Minas Gerais, which 
currently encompasses a portion of the species' largest known 
subpopulation (Bruno et al. 2006, p. 25; Lamas 2006, p. 151); the 
Chapada dos Veadeiros National Park in Goi[aacute]s (Bianchi et al. 
2005, pp. 72-73); and Jalapao State Park in Tocantins State (DePaula 
2008, p. 289). These areas are considered critical for protecting some 
of the species' key remaining subpopulations (Collar et al. 1992, pp. 
84-85; del Hoyo et al. 1992, p. 625; Silveira 1998, pp. 57-58; Silveira 
and Bartman 2001, pp. 287-300; Braz et al. 2003, pp. 68-71; Lamas and 
Santos 2004, pp. 39-40; Bianchi et al. 2005, pp. 72-74; Bruno et al. 
2006, p. 30; Lamas 2006, pp. 145-154; BLI 2010a, pp. 1-2). Some 
conservation initiatives are under way. For example, the Service 
recently provided funding for a project to develop and strengthen 
conservation partnerships with local agricultural producers in the 
Serra da Canastra region, which could benefit the Brazilian merganser 
(US FWS 2006, p. 3). Additionally, in March 2010, the Global 
Environmental Facility (GEF) approved a $13 million grant for the 
Sustainable Cerrado Initiative, which seeks to conserve the Cerrado 
Biome (World Bank 2010.)
    Although the four areas protected under Brazilian law include 
important sites where the species occurs, resource extraction and 
livestock grazing continue in Brazilian merganser habitat and pose 
threats to this species. In addition, not all of the remaining 
Brazilian mergansers occur in protected areas. Some key areas where the 
species occur are not formally protected and are subject to ongoing 
threats, such as proposed hydropower projects, logging, and continuing 
development (Lamas 2006; BLI 2010b). For these reasons, we expect these 
threats will continue into the future.
    Despite the existence of these regulatory mechanisms, habitat loss 
throughout the Atlantic Forest biome has increased for more than a 
decade, with adverse impacts continuing and expected to increase into 
the future (Scott and Brooke 1985, p. 118; Collar et al. 1992, p. 84; 
BLI 2003a, p. 4; BLI 2003b, pp. 1-2; Braz et al. 2003, p. 70; Lamas and 
Santos 2004, p. 40; Hughes et al. 2006, p. 61; TNC 2007, p. 2). Illegal 
or unauthorized activities continue to impact the Brazilian merganser, 
including logging of gallery forests within riverine buffer areas. 
These activities include encroachment of logging; livestock grazing, 
subsistence activities within protected primary and secondary forests; 
and intentional burning (Hughes et al. 2006, p. 61; TNC 2007, p. 2; BLI 
2009, p. 1).
    Brazil's resource protection laws are inadequate to combat the 
intense development pressure that exists within the species' range. 
Despite the existence of these regulatory mechanisms, and the 
establishment in 2003 of a Brazilian Merganser Recovery Team, there are 
additional challenges. Protected areas do not address all the threats 
to the Brazilian merganser, nor do they encompass all occupied habitat 
of the species. There are government-sponsored programs that encourage 
development within the range of the species, and there is an absence of 
adequate enforcement. As a result, threats to the species' remaining 
habitat are ongoing (see Factor A). Therefore, when viewed in 
combination with the habitat threats and small population size 
identified under Factors A and E, we find that the existing regulatory 
mechanisms are inadequate to ameliorate the current threats to the 
Brazilian merganser.
Cherry-Throated Tanager
    Few sites have recently confirmed observations of the cherry-
throated tanager. Possible sightings of the cherry-throated tanager 
have occurred in the Augusto Ruschi Biological Reserve (also known as 
Nova Lombardia Biological Reserve), which is approximately 5,000 
hectares (ha) (12,355 acres (ac)) in Espirito Santo. Espirito Santo is 
likely the only State in Brazil where this species still exists. One of 
the key sites still occupied by the species is the Pindobas IV Farm. It 
was recommended that the farm be formally designated as a protected 
area to help ensure the species' future protection, and the owners of 
this farm have expressed interest in this recommendation (Bauer et al. 
2000, p. 106; BLI 2010d, p. 2). Under Brazilian law, the remaining 
native forest on the owner's land could be designated as a private 
natural heritage reserve. In addition, in June 2010, the cherry-
throated tanager received additional protections in the form of a 
decree (no. 2529-R) and wildlife corridors. Ten priority conservation 
areas were recognized by the State of Espirito Santo (BLI 2010h). These 
conservation measures represent progress for the conservation of this 
species.
    Although Brazil still has various government-sponsored measures 
that continue to facilitate development projects, there is also a wide 
variety of regulatory mechanisms that require protection of the cherry-
throated tanager and its habitat throughout the species' potentially 
occupied range. Conservation measures have improved within Brazil. 
However, due to competing priorities, threats to the species' remaining 
habitat are ongoing and are expected to continue. Therefore, when 
viewed with Factors A and E, we find that the existing regulatory 
mechanisms are inadequate to ameliorate the current threats to the 
cherry-throated tanager.
Fringe-Backed Fire-Eye
    As of 2007, the fringe-backed fire-eye did not occur within any 
protected areas, although it has been recommended that some of the key 
sites it occupies should be formally designated as protected areas to 
help ensure the species' future protection (Collar et al. 1992, p. 678; 
del Hoyo et al. 2003, p. 638; BLI 2007e, p. 2). Six Important Bird 
Areas have been identified in northern Bahia where this species may or 
is likely to occur (BLI 2010f). However, even with any future 
designation of protected areas, it is unlikely that all of the 
previously identified resource concerns for the fringe-backed fire-eye 
would be sufficiently addressed at these sites.
    Although there is a wide variety of regulatory mechanisms in Brazil 
that require protection of the fringe-backed fire-eye and its habitat 
throughout the species' potentially occupied range, Brazil still has 
various government-

[[Page 81810]]

sponsored measures that continue to facilitate potentially harmful 
development projects. Due to competing priorities, significant threats 
to the species' remaining habitat are ongoing and are expected to 
continue. Therefore, when viewed in combination with habitat threats 
and small population size identified under Factors A and E, we find 
that the existing regulatory mechanisms are inadequate to ameliorate 
the current threats to the fringe-backed fire-eye.
Kaempfer's Tody-Tyrant
    Currently, the Kaempfer's tody-tyrant is known to occur in 11 
localities in southeast Brazil (Belmonte-Lopes in litt. in BLI 2010c). 
Although Brazil still has various government-sponsored measures that 
continue to facilitate development projects, there is also a wide 
variety of regulatory mechanisms in Brazil that require protection of 
the Kaempfer's tody-tyrant and its habitat throughout the species' 
potentially occupied range. The existing regulatory mechanisms that 
apply to this species have proven difficult to enforce (Scott and 
Brooke 1985, pp. 118, 130; BLI 2003a, p. 4; Conservation International 
2007c, p. 1; Costa 2007, p. 7; TNC 2007, p. 2; Peixoto and Silva 2007, 
p. 5). As a result, significant threats to the species' remaining 
habitats are ongoing (see Factor A) due to competing priorities. 
Therefore, when viewed in combination with habitat threats and small 
population size identified under Factors A and E, we find that the 
existing regulatory mechanisms are inadequate to ameliorate the current 
threats to the Kaempfer's tody-tyrant.
Margaretta's Hermit
    The Margaretta's hermit is included in Appendix II of CITES (http://www.cites.org). CITES is an international treaty among 175 nations, 
including Brazil and the United States, that entered into force in 1975 
(UNEP-WCMC 2009a). In the United States, CITES is implemented through 
the Endangered Species Act (Act). The Act designates the Secretary of 
the Interior as 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 and 
re-export of CITES-listed animal and plant species (http://www.cites.org). As discussed under Factor B, we do not consider 
international trade under CITES to be a threat to the Margaretta's 
hermit. Therefore, CITES is an effective mechanism to control 
international trade through valid CITES permits. Any international 
trade that occurs in the future would be effectively regulated under 
CITES.
    Successful efforts to protect the last site known to harbor the 
Margaretta's hermit from further development occurred in the mid-1980s 
(Pereira 2007, p. 2), and a portion of this area was designated as the 
C[oacute]rrego Grande Biological Reserve in 1989 (Costa 2007, p. 20). 
However, nearly the entire site burned in 1986, and the subspecies has 
not been recorded there since that time (Willis and Oniki 2002, p. 21). 
The Margaretta's hermit likely also occurred at the Sooretama 
Biological Reserve in Esp[iacute]rito Santo in 1977 (ICBP 1981, p. 2). 
Therefore, even with formal designation of protected areas, it is 
unlikely that the identified threats to the Margaretta's hermit are 
sufficiently addressed at these sites.
    Although there is a wide variety of regulatory mechanisms in Brazil 
that require protection of the Margaretta's hermit and its habitat 
throughout the subspecies' potentially occupied range, there are 
government-sponsored measures that remain in place in Brazil that 
continue to facilitate potentially harmful development projects. The 
existing regulatory mechanisms that apply to the Margaretta's hermit 
have been difficult to enforce (Scott and Brooke 1985, p. 118, 130; BLI 
2003a, p. 4; Conservation International 2007c, p. 1; Costa 2007, p. 7; 
TNC 2007, p. 2; Peixoto and Silva 2007, p. 5). As a result, significant 
threats to the subspecies' remaining habitats are ongoing (see Factor 
A). Therefore, when viewed in combination with habitat threats and 
small population size identified under Factors A and E, we find that 
the existing regulatory mechanisms are inadequate to ameliorate the 
current threats to the Margaretta's hermit.
Southeastern Rufous-Vented Ground-Cuckoo
    Two protected areas, Sooretama Biological Reserve and Doce River 
State Park, represent the major sites where the southeastern rufous-
vented ground-cuckoo may still occur (Scott and Brooke 1985, pp. 125-
126; Payne 2005, p. 207). The protective measures potentially 
implemented at these two areas are considered critical for protecting 
any remaining populations of the subspecies. However, not all of the 
identified threats for the subspecies are sufficiently addressed at the 
two protected areas that may still harbor the southeastern rufous-
vented ground-cuckoo (AMDA 2006, p. 2; Barbosa 2007, p. 1; Bruner et 
al. 2001, pp. 125-128; Nunes and Kraas 2000, p. 44).
    Although there is a wide variety of regulatory mechanisms in Brazil 
that require protection of the southeastern rufous-vented ground-cuckoo 
and its habitat throughout the subspecies' range, there are various 
government-sponsored measures that remain in place in Brazil that 
continue to facilitate development projects that could harm the 
species. The existing regulatory mechanisms, as currently enforced, do 
not reduce the threats to the species (BLI 2003a, p. 4; Conservation 
International 2007c, p. 1; Costa 2007, p. 7; TNC 2007, p. 2; 
Neotropical News 1997b, p. 11; Peixoto and Silva 2007, p. 5; Scott and 
Brooke 1985, p. 118, 130; Venturini et al. 2005, p. 68). Therefore, 
when viewed in combination with habitat threats and small population 
size identified under Factors A and E, we find that the existing 
regulatory mechanisms are inadequate to ameliorate the current threats 
to the southeastern rufous-vented ground-cuckoo.

Summary of Factor D

    Regulatory mechanisms exist in Brazil to protect these seven 
species. In addition, a $13 million grant was awarded for the 
Sustainable Cerrado Initiative, which seeks to conserve the Cerrado 
Biome (World Bank 2010, p. 1). However, it is difficult to manage the 
protected areas, and several challenges still remain to be adequately 
addressed. The lack of implementation and enforcement, coupled with 
Brazil's past and current incentives to develop areas which may contain 
suitable habitat for these species, have resulted in a failure to 
protect or curb habitat destruction in the species' only known habitats 
(Factor A). Because we are unaware of any regulatory mechanisms that 
effectively limit or restrict habitat destruction, we believe that the 
inadequacy of regulatory mechanisms is a contributory risk factor for 
these seven species. In summary, we find that the existing regulatory 
mechanisms are inadequate to ameliorate the current threats to these 
seven species.

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

    All seven species have limited geographic ranges and small 
population sizes. Their existing populations are extremely localized, 
and sometimes geographically isolated from one another, leaving them 
vulnerable to localized extinctions from habitat modification and 
destruction, natural catastrophic changes to their habitat

[[Page 81811]]

(e.g., flood scour, drought); other stochastic disturbances; decreased 
fitness from reduced genetic diversity; and climate change.
Potential Loss of Genetic Diversity and Stochastic Disturbance and 
Population Isolation
    Under this factor we first explore whether the risks, represented 
by demographic, genetic, and environmental stochastic events, threaten 
the continued existence of each of these seven species. All seven 
species addressed in this rule have limited geographic ranges and 
small, declining populations. Their existing populations are extremely 
localized and geographically isolated from one another, leaving them 
vulnerable to localized extinctions from habitat modification, 
progressive degradation from erosion or runoff (non-point source 
pollutants), natural catastrophic changes to their habitat (e.g., 
drought), other stochastic disturbances, and decreased fitness from 
reduced genetic diversity. Demographic stochasticity is defined by 
chance changes in the population growth rate for a species (Gilpin and 
Soul[eacute] 1986, p. 27). Population growth rates are influenced by 
individual birth and death rates (Gilpin and Soul[eacute] 1986, p. 27), 
immigration and emigration rates, as well as changes in population sex 
ratios. Natural variation in survival and reproductive success of 
individuals and chance disequilibrium of sex ratios may act in concert 
to contribute to demographic stochasticity (Gilpin and Soul[eacute] 
1986, p. 27).
    Genetic stochasticity is caused by changes in gene frequencies due 
to genetic drift, and diminished genetic diversity, and/or effects due 
to inbreeding (i.e., inbreeding depression) (Lande 1995, p. 786). 
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 and Charlesworth 1987, p. 
231; Shaffer 1981, p. 131). Environmental stochasticity is defined as 
the susceptibility of small, isolated populations of wildlife species 
to natural levels of environmental variability and related 
``catastrophic'' events (e.g., severe storms, extreme cold spells, 
wildfire) (Dunham et al. 1999, p. 9; Mangel and Tier 1994, p. 612; 
Young 1994, pp. 410-412). Each risk will be analyzed specifically for 
each species.
    Small, isolated populations of wildlife species that have gone 
through a reduction in population numbers can be susceptible to 
demographic and genetic problems (Shaffer 1981, pp. 130-134). These 
threat factors, which may act in concert, include: Natural variation in 
survival and reproductive success of individuals; chance disequilibrium 
of sex ratios; changes in gene frequencies due to genetic drift; 
diminished genetic diversity and associated effects due to inbreeding 
(i.e., inbreeding depression); dispersal of just a few individuals; a 
few clutch failures; a skewed sex ratio in recruited offspring over 
just one or a few years; and chance mortality of just a few 
reproductive-age individuals. These small populations are also 
susceptible to natural levels of environmental variability and related 
``catastrophic'' events (e.g., severe storms, extreme cold spells, 
wildfire), which we will refer to as environmental stochasticity 
(Dunham et al. 1999, p. 9; Mangel and Tier 1994, p. 612; Young 1994, 
pp. 410-412).
    There is very little information available regarding the historic 
distribution and abundance of the black-hooded antwren, Brazilian 
merganser, cherry-throated tanager, fringe-backed fire-eye, Kaempfer's 
tody-tyrant, Margaretta's hermit, and southeastern rufous-vented 
ground-cuckoo. However, these species' historic populations were likely 
larger and more widely distributed than today, and they likely 
maintained a minimum level of genetic interchange among local 
subpopulations in order for them to have persisted (Middleton and 
Nisbet 1997, p. 107; Vil[agrave] et al. 2002, p. 91; Wang 2004, p. 
332).
    Demographic and genetic stochastic forces typically operate 
synergistically. Initial effects of one threat factor can later 
exacerbate the effects of other threat factors (Gilpin and Soul[eacute] 
1986, pp. 25-26). Any further fragmentation of populations will, by 
definition, result in the further removal or dispersal of individuals, 
which will exacerbate other threats. Conversely, lack of a sufficient 
number of individuals in a local area or a decline in their individual 
or collective fitness may cause a decline in the population size, 
despite the presence of suitable habitat patches.
    The combined effects of habitat fragmentation (Factor A) and 
genetic and demographic stochasticity (Factor E) on a species' 
population are referred to as patch dynamics. Patch dynamics can have 
profound effects on fragmented subpopulations and can potentially 
reduce a species' respective effective population by orders of 
magnitude (Gilpin and Soul[eacute] 1986, p. 31). For example, an 
increase in habitat fragmentation can separate subpopulations to the 
point where individuals can no longer disperse and breed among habitat 
patches, causing a shift in the demographic characteristics of a 
population and a reduction in genetic fitness (Gilpin and Soul[eacute] 
1986, p. 31). Furthermore, as a species' status continues to decline, 
often as a result of deterministic forces such as habitat loss or 
overutilization, it will become increasingly vulnerable to a broad 
array of other forces. If this trend continues, its ultimate extinction 
due to one or more stochastic events becomes more likely.
    A single stochastic environmental event can severely reduce 
existing wildlife populations and, if the affected population is 
already small or severely fragmented, it is likely that demographic 
stochasticity or inbreeding will become operative, which would place 
the population in jeopardy (Gilpin and Soul[eacute] 1986, p. 27; Lande 
1995, pp. 787-789). We find that these factors threaten the continued 
existence of each of these species.
Climate Change
    Climate is influenced primarily by long-term patterns in air 
temperature and precipitation. The exact nature of the impacts of 
climate change and increasing temperatures on these seven Brazilian 
species is unknown. However, changes to climatic conditions, such as 
temperature and precipitation regimes, are occurring and are expected 
to continue over the next 100 years (Solomon et al. 2007, p. 70; 
Trenberth et al. 2007, pp. 252-253, 262-263). For example, NASA 
researchers found that during one August of the Amazon dry season, 
there was a distinct pattern of higher rainfall and warmer temperatures 
over deforested regions (Negri et al. 2003, pp. 1306-1320). In other 
parts of the world, species have been observed to migrate upward in 
elevation in response to rises in temperature. The species in this 
final rule may be among the species most vulnerable to extinction due 
to anticipated increases in temperature because they are not migratory 
and therefore highly dependent on their habitat (Moore et al. 2008, p. 
960). Since temperature and precipitation affect ecosystem 
characteristics, any change in climate is likely to affect these 
species. El Ni[ntilde]o is a disruption of the ocean atmospheric system 
which affects regional weather and climate such as rainfall. Although 
we are able to make general predictions about the severity of El 
Ni[ntilde]o events, we are still unable to make reliable, precise 
projections of changes in El Ni[ntilde]o events due to the complexity 
of the factors

[[Page 81812]]

involved in these weather patterns. Periodic climatic and weather 
patterns such as El Ni[ntilde]o and La Ni[ntilde]a can cause or 
exacerbate negative impacts on terrestrial ecosystems and neotropical 
bird populations (England 2000, p. 86; Holmgren et al. 2001, p. 89; 
Crick 2004, p. 1; Plumart 2007, pp. 1-2; Sorte and Jetz 2010, p. 862). 
However, future changes in precipitation are uncertain because they 
depend in part on how these El Ni[ntilde]o events might change.
    Climate change could potentially affect ecosystems by changes in 
rainfall patterns, drought, species distributions, and phenology. The 
probability of species going extinct due to changes in climate 
increases when ranges are restricted and population numbers decline 
(IPCC 2007, p. 8; Helmuth 2009, p. 753). This could be experienced by 
each of these seven Brazilian bird species, which are characterized by 
limited ranges, restricted habitat requirements, and small, declining 
populations. Climate change may exacerbate habitat loss or modification 
of habitats that are affected by deforestation (IPCC 1997, p. 11; Negri 
et al. 2003, pp. 1306-1320). In the Atlantic Forest, increased rainfall 
in combination with deforestation has increased the frequency and 
magnitude of landslides, which add to the destruction of these seven 
birds' habitat. The projected effects of climate change such as 
increasing temperatures on each of the seven species addressed in this 
final rule may affect microclimatic conditions, which may in turn lead 
to the loss of native species due to physiological stress and the loss 
or alteration of habitat.
    For example, trees cool their area of influence through high rates 
of evapotranspiration, or water loss to the atmosphere from their 
leaves (Parmesan and Mathews 2005, p. 337). Areas where trees have been 
replaced with pastures have lower evapotranspiration rates, thus 
causing local areas to be warmer (Negri et al. 2003, p. 1306; Parmesan 
and Mathews 2005, p. 337). These seven Brazilian species are 
particularly vulnerable to extinction due to these kinds of 
environmental changes. Local changes in climate can also act in concert 
with other threats to the species such as habitat loss and degradation, 
magnifying the detrimental effects on the seven Brazilian species 
identified in this rule.
    Although we can speculate, climate change models that are currently 
available are not yet able to make meaningful predictions of local 
climate change for specific areas (Parmesan and Matthews 2005, p. 354), 
such as the Atlantic Forest and Cerrado bioregions. In addition, we do 
not have models to predict how the local climate in the range of these 
Brazilian bird species will change, and we do not know how any change 
that may occur would affect these species. Recent models and research 
suggest that climate change may be an additional stress for species 
already threatened by other changes to their habitats (McCarty 2001, p. 
325; Brook et al. 2008, p. 453, Sorte and Jetz 2010, pp. 862-869).

Species-Specific Discussion Under Factor E

Brazilian Merganser
    Another factor possibly affecting the Brazilian merganser is 
increased competition with exotic fish species. The peacock bass 
(Cichla spp.) was introduced into reservoirs within Brazilian merganser 
habitat. Bass populations may expand and outcompete Brazilian merganser 
with respect to food (Lamas 2006, p. 152). Although the Brazilian 
merganser undoubtedly competes with exotic fish species for food, the 
available information does not suggest that this occurs at a magnitude 
that threatens the Brazilian merganser. Therefore, we do not find that 
competition with exotic fish species is a threat to the continued 
existence of the Brazilian merganser.
Kaempfer's Tody-Tyrant
    Sea level rise was suggested to affect Kaempfer's tody-tyrant (BLI 
2010c). In Santos Bay on the coast, sea level rise scenarios were 
conducted based on predictions of increases between 0.5 and 1.5 m (1.64 
and 4.92 ft) by the year 2100. Small increases in sea level could cause 
flooding, erosion, and change salt marsh zones (Alfredini et al. 2008, 
pp. 379-379) within this species' habitat. The Kaempfer's tody-tyrant 
inhabits riverine lowland forests between 0-50 m (164 ft) above sea 
level. As sea level rises, there will not only be less habitat 
available for the Kaempfer's tody-tyrant, but also increased demand for 
coastal land for human development such as housing as land becomes more 
scarce. The Kaempfer's tody-tyrant will likely attempt to move inland 
as its habitat disappears in search of suitable habitat, however, there 
may not be suitable habitat remaining for the species. Therefore, the 
species is likely to be affected by continued sea level rise.

Summary of Factor E

    In summary, these seven species all have limited geographic ranges 
and small population sizes and they are subject to ongoing natural and 
manmade threats that are considered to be imminent. The small and 
declining numbers that make up the populations of these seven Brazilian 
species: The Black-hooded antwren, Brazilian Merganser, Cherry-Throated 
Tanager, Fringe-Backed Fire-Eye, Kaempfer's Tody-Tyrant, Margaretta's 
Hermit, and the Southeastern Rufous-Vented Ground Cuckoo, make them 
susceptible to the potential loss of genetic diversity, stochastic 
disturbance, and population isolation. We assessed the potential risks 
of loss of genetic diversity and environmentally-stochastic disturbance 
to each of these seven species populations. We currently do not know if 
levels of genetic diversity are adequate to sustain populations of 
these species. We cannot completely predict the effects of the 
potential loss of genetic diversity and stochastic disturbance and 
population isolation at this time, but each threat is likely to occur 
to some extent and may be compounded by the others (Nepstad 2001, pp. 
395-407; Brook et al. 2008, p. 453). Without efforts to maintain buffer 
areas and reconnect some of the remaining tracts of suitable habitat 
near these species' currently occupied sites, it is doubtful that the 
individual tracts are currently large enough to support viable 
populations of many birds endemic to the Atlantic Forest such as these, 
and the eventual loss of any small, isolated, and declining populations 
appears to be inevitable. We expect that these species' increased 
vulnerability to demographic stochasticity and inbreeding will be 
operative even in the absence of any human-induced threats or 
stochastic environmental events, which will likely further exacerbate 
the species' vulnerability to local extirpations and eventual 
extinction.
    Climate change has the potential to increase the vulnerability of 
these seven species to random catastrophic events and other threats. 
The probability of species going extinct increases when ranges are 
restricted, habitat is decreased, and population numbers decline 
(Marini et al. 2009, p. 1558). These combined potential threats reduce 
the ability of these species to cope with other stressors. In addition 
to their declining numbers, the high level of population fragmentation 
makes them susceptible to genetic and demographic stochasticity. The 
magnitude of these threats is high for each of these species because of 
their reduced ranges and population sizes which result in a reduced 
ability to adapt to environmental change. We are not able to definitely 
state, based on the best available information, that climate

[[Page 81813]]

change affects these seven species to such a magnitude that it is 
considered a threat.
    However, based on the best scientific and commercial information 
available, we conclude that these seven species are threatened by 
potential loss of genetic diversity, environmentally-stochastic 
disturbance, small, declining populations, and with respect to 
Kaempfer's tody-tyrant, sea level rise.
    Habitat loss is by far the greatest threat to each of these seven 
species. The threats identified in Factors D and E intensify the 
effects of habitat loss due to deforestation from activities such as 
slash and burn agriculture, conversion to livestock pastures and areas 
of human habitation or industrial development, and conversion to 
plantations as described in Factor A. Therefore, we find that these 
seven Brazilian species are at risk of extinction due to other natural 
and manmade factors such as the potential loss of genetic diversity, 
stochastic disturbance, and small, declining and isolated populations.

Conclusion and Status Determinations

    Section 3 of the Act defines an endangered species as any species 
that is ``in danger of extinction throughout all or a significant 
portion of its range.'' We have carefully assessed the best scientific 
and commercial information available regarding threats to each of these 
seven Brazilian bird species. Significant effects have already occurred 
as a result of habitat loss, and some populations have likely been 
extirpated. The most significant threat to the seven species in this 
rule is habitat loss and alteration (Marini et al. 2009, p. 1558). 
Various past and ongoing human activities and their secondary 
influences continue to impact all of the remaining suitable habitats 
that may still harbor each of these seven species (see Factors A and 
D). We expect that any additional loss or degradation of habitats that 
are used by these species will have impacts on the species due to each 
species' fragmented state. This is because with each contraction of an 
existing subpopulation, the likelihood of interchange with other 
subpopulations within patches decreases, while the likelihood of its 
reproductive isolation increases.
    Under the Act and our implementing regulations, a species may 
warrant listing if it is threatened or endangered throughout all or a 
significant portion of its range. Each of these species in this listing 
rule is highly restricted in its range. In each case, the threats to 
the survival of these species occur throughout the species' range and 
are not restricted to any particular portion of that range. 
Accordingly, our assessment and determination apply to each species 
throughout its entire range.
    We find that each of these seven species is presently in danger of 
extinction throughout its entire range, based on the immediacy, 
severity, and scope of the threats described above. These species face 
immediate and significant threats, primarily from the threatened 
destruction and modification of their habitats due to deforestation and 
habitat degradation. The habitat conversion is compounded because of 
these species' small, declining populations and limited distribution. 
As described earlier, reasons for habitat loss include extensive 
establishment of agricultural fields (e.g., soy beans, sugarcane, and 
corn), changes in fire frequencies, plantations (e.g., eucalyptus, 
pine, coffee, cocoa, rubber, and bananas), livestock pastures, centers 
of human habitation, and industrial developments (e.g., charcoal 
production, steel plants, and hydropower reservoirs) (Factor A). We 
determined that the inadequacy of existing regulatory mechanisms is a 
contributory risk factor that endangers these species' continued 
existence (Factor D). Although we acknowledge that there is limited 
information on the specific nature of potential impacts from climate 
change to the species included in this final rule (Factor E), we are 
concerned about projected climate change. Stronger and more frequent El 
Ni[ntilde]o events are predicted to occur. These events and rising 
temperatures associated with climate change, in combination with the 
potential loss of genetic diversity, stochastic disturbance, and 
population isolation, are likely to occur. However we are not able to 
definitely state, based on the best available information, that climate 
change affects these seven species to such a magnitude that it is 
considered a threat. We also assessed the potential risks of loss of 
genetic diversity and environmentally-stochastic disturbance to each of 
these seven species populations (Factor E). We expect that these 
species' increased vulnerability to demographic stochasticity and 
inbreeding will likely further exacerbate the species' vulnerability to 
local extirpations and eventual extinction.
    Based on our analysis, we have no reason to believe that population 
trends for any of the species addressed in this final rule will 
improve, nor will the effects of current threats acting on the species 
be ameliorated in the future.
    These species are in danger of extinction throughout all of their 
ranges. Therefore, on the basis of the best available scientific and 
commercial information, we are listing the following seven species as 
endangered under the Act: Black-hooded antwren (Formicivora 
erythronotos), Brazilian merganser (Mergus octosetaceus), cherry-
throated tanager (Nemosia rourei), fringe-backed fire-eye (Pyriglena 
atra), Kaempfer's tody-tyrant (Hemitriccus kaempferi), Margaretta's 
hermit (Phaethornis malaris margarettae), and southeastern rufous-
vented ground-cuckoo (Neomorphus geoffroyi dulcis).

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 interest 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 has been proposed or 
designated. However, given that the black-hooded antwren, Brazilian 
merganser, cherry-throated tanager, fringe-backed fire-eye, Kaempfer's 
tody-tyrant, Margaretta's hermit, and southeastern rufous-vented 
ground-cuckoo are not native to the United States, we are not 
designating critical habitat in this rule.
    Section 8(a) of the Act authorizes the provision of 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 and threatened 
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-hooded antwren, Brazilian merganser, cherry-throated tanager, 
fringe-backed fire-eye, Kaempfer's tody-tyrant, Margaretta's hermit, 
and southeastern rufous-vented ground-cuckoo. These prohibitions, under 
50 CFR 17.21, in

[[Page 81814]]

part, make it illegal for any person subject to the jurisdiction of the 
United States to ``take'' (take includes to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to engage 
in any such conduct) any endangered wildlife species within the United 
States or upon the high seas; or to import or export; to deliver, 
receive, carry, transport, or ship in interstate or foreign commerce in 
the course of commercial activity; or to sell or offer for sale in 
interstate or foreign commerce any endangered wildlife species. It is 
also illegal to possess, sell, deliver, carry, transport, or ship any 
such wildlife that has been taken in violation of the 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 may 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)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations adopted under section 4(a) of 
the Act. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244).

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.gov or upon request from the 
Endangered Species Program, U.S. Fish and Wildlife Service (see the FOR 
FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this final rule are the staff members of the 
Branch of Foreign Species, Endangered Species Program, U.S. Fish and 
Wildlife Service, 4401 N. Fairfax Drive, Arlington, VA 22203.

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 new entries for ``Antwren, Black-
hooded,'' ``Cuckoo, Southeastern Rufous-vented Ground,'' ``Fire-eye, 
Fringe-backed,'' ``Hermit, Margaretta's,'' ``Merganser, Brazilian,'' 
``Tanager, Cherry-throated,'' and ``Tody-tyrant, Kaempfer's'' in 
alphabetical order under BIRDS to the List of Endangered and Threatened 
Wildlife as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Birds
 
                                                                      * * * * * * *
Antwren, black-hooded............  Formicivora           Brazil.............  Entire.............  E                       774           NA           NA
                                    erythronotos.
 
                                                                      * * * * * * *
Fire-eye, fringed-backed.........  Pyriglena atra......   Brazil............  Entire.............  E                       774           NA           NA
 
                                                                      * * * * * * *
Ground-cuckoo, southeastern        Neomorphus geoffroyi  Brazil.............  Entire.............  E                       774           NA           NA
 rufous-vented.                     dulcis.
 
                                                                      * * * * * * *
Hermit, Margaretta's.............  Phaethornis malaris   Brazil.............  Entire.............  E                       774           NA           NA
                                    margarettae.
 
                                                                      * * * * * * *
Merganser, Brazilian.............  Mergus octosetaceus.  Brazil, Argentina,   Entire.............  E                       774           NA           NA
                                                          Paraguay.
 
                                                                      * * * * * * *
Tanager, cherry-throated.........  Nemosia rourei......  Brazil.............  Entire.............  E                       774           NA           NA
 
                                                                      * * * * * * *
Tody-tyrant, Kaempfer's..........  Hemitriccus           Brazil.............  Entire.............  E                       774           NA           NA
                                    kaempferi.
 

[[Page 81815]]

 
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Rowan W. Gould,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-32628 Filed 12-27-10; 8:45 am]
BILLING CODE 4310-55-P