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Section 4(b)(3)(A) of the Act requires us to make a finding (known as a “90-day finding”) on whether a petition to add a species to, remove a species from, or reclassify a species on the Federal Lists of Endangered and Threatened Wildlife and Plants has presented substantial information indicating that the requested action may be warranted. To the maximum extent practicable, the finding must be made within 90 days following receipt of the petition and published promptly in the
On May 6, 1991, we received a petition (1991 petition) from Alison Stattersfield, of International Council for Bird Preservation (ICBP), to list 53 foreign birds under the Act, including the black-breasted puffleg that is the subject of this proposed rule. On December 16, 1991, we made a positive 90-day finding and announced the initiation of a status review of the species included in the 1991 petition (56 FR 65207). On March 28, 1994 (59 FR 14496), we published a 12-month finding on the 1991 petition, along with a proposed rule to list 30 African birds under the Act, of which were from the 1991 petition. In that document, we announced our finding that listing the remaining 38 species from the 1991 petition, including the black-breasted puffleg, was warranted but precluded because of other listing activity.
Per the Service's listing priority guidelines (September 21, 1983; 48 FR 43098), we identified the listing priority numbers (LPNs) (ranging from 1 to 12) for all outstanding foreign species in our 2007 ANOR (72 FR 20184), published on April 23, 2007. In that notice, the black-breasted puffleg was designated with an LPN 2 and we determined that listing continued to be warranted but precluded. It should be noted that “Table 1—Candidate Review,” in our 2007 ANOR, erroneously noted the black-breasted puffleg with an LPN of 3. However, the correct LPN in 2007 was “2,” as was discussed in the body of the notice (72 FR 20184, p. 20197).
On January 12, 1995 (60 FR 2899), we reiterated the warranted-but-precluded status of the remaining species from the 1991 petition, with the publication of the final rule to list the 30 African birds. We made subsequent warranted-but-precluded findings for all outstanding foreign species from the 1991 petition, including the black-breasted puffleg, as published in our annual notices of review (ANOR) on May 21, 2004 (69 FR
On January 23, 2008, the United States District Court ordered the Service to propose listing rules for five foreign bird species, actions which had been previously determined to be warranted but precluded: The Andean flamingo (
On July 29, 2008 (73 FR 44062), we published in the
The black-breasted puffleg, endemic to Ecuador and a member of the hummingbird family (Trochilidae), is approximately 3.25 inches (in) (8.5 centimeters (cm)) long (Fjeldså and Krabbe 1990, p. 272; Ridgely and Greenfield 2001a, p. 373; Ridgely and Greenfield 2001b, p. 280). The species is locally known as “
This species was first taxonomically described by Bourcier and Mulsant in 1852 and placed in Trochilidae as
Black-breasted pufflegs prefer humid temperate and elfin forests (Fjeldså and Krabbe 1990, p. 272; Ridgely and Greenfield 2001a, p. 373; Ridgely and Greenfield 2001b, p. 280). This habitat is described as grassy ridges surrounded by stunted montane forest with a dense understory (de Hoyo
As recently as 1990, researchers were unaware of the puffleg's breeding habits (Fjeldså and Krabbe 1990, p. 272) and there continues to be little information (BLI 2007, p. 1). Del Hoyo
Their altitudinal migration coincides with the flowering of certain plants during the rainy season, including the small rubiad tree (
Historically, the black-breasted puffleg inhabited the elfin forests along the northern ridge-crests of both Volcán Pichincha and Volcán Atacazo in northwest Ecuador (BLI 2007, p. 2; Fjeldså and Krabbe 1990, p. 272; Krabbe
The black-breasted puffleg is currently known to occur only on the north side of Volcán Pichincha near Quito, Ecuador, in temperate elfin forests at altitudes between 9,350 and 11,483 ft (2,850 and 3,500 m) on the (Fjeldså and Krabbe 1990, p. 272; Ridgely and Greenfield 2001a, p. 373; Ridgely and Greenfield 2001b, p. 280) Volcán Pichincha peaks at 15,699 ft (4,785 m) (Phillips 1998, p. 21). The current extent of the species' range is approximately 33 square miles (mi
The black-breasted puffleg is currently restricted to a single population, ranging in size from 50 to no more than 250 adult individuals, with a declining trend (BLI 2007, p. 2; del Hoyo
The black-breasted puffleg is identified as a critically endangered species under Ecuadorian law (Ecolex 2003b, p. 36). The black-breasted puffleg is classified as “Critically Endangered” in the 2006 IUCN Red List, because it has an extremely small range and the population is restricted to one location (BLI 2007, p. 1).
Under section 4(a)(1) of the Act (16 U.S.C. 1533(a)(1)) and regulations promulgated to implement the listing provisions of the Act (50 CFR part 424.11), we may list a species as threatened and endangered on the basis of five threat factors: (A) Present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Listing may be warranted based on any of the above threat factors, either singly or in combination.
Under the Act, we may determine a species to be endangered or threatened. An endangered species is defined as a species which is in danger of extinction throughout all or a significant portion of its range. A threatened species is defined as a species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Therefore, for the black-breasted puffleg, we evaluated the best available scientific and commercial information under the five listing factors to determine whether it met the definition of endangered or threatened.
The black-breasted puffleg is currently restricted to the elfin forests along the northern ridge-crests of the Volcán Pichincha in northwest Ecuador (BLI 2007, p. 2; Fjeldså and Krabbe 1990, p. 272; Krabbe
The areas outside the Yanacocha Reserve (see Refugia), but still within the range of the black-breasted puffleg, continue to be affected by habitat loss and fragmentation. In an analysis of deforestation rates and patterns using satellite imagery in the western Andean slopes of Colombia and Ecuador, Viña
In 2001, the Ecuadorian government agreed to construct a pipeline to transport heavy oil from the Amazon basin to Esmeraldas on the Pacific Coast (The Mindo Working Group 2001, p. 1). The environmental impact study revealed that the proposed route went through black-breasted puffleg habitat (The Mindo Working Group 2001, pp. 5, 11). Satellite mapping showed that much of the area in puffleg habitat was already destroyed, with little remaining habitat above 2,800 m (9,186 ft). The Black-breasted Puffleg had previously been found at 3,100 m (10,167 ft), in an upper extension from the likely unsuitable forested zone lower down. The pipeline, as proposed, would pass through pasture slightly above this patch and would further destroy habitat with the construction of a road (The Mindo Working Group 2001, p. 11). The pipeline was recently constructed, transecting every major ecosystem on the Volcán Pichinche, including black-breasted puffleg habitat. The pipeline also deforested pristine habitat, making these areas more accessible and opening them up to further human infiltration (BLI 2007, p. 12).
The black-breasted puffleg prefers elfin forests at altitudes between 2,850-3,500 m (9,350-11,483 ft) (Fjeldsa
In 1987, the black-breasted puffleg was listed in CITES Appendix II, which includes species that are not necessarily threatened with extinction, but which require regulation of international trade in order to ensure that trade of the species is compatible with the species' survival. International trade in specimens of Appendix-II species is authorized through permits or certificates under certain circumstances, including verification that trade will not be detrimental to the survival of the species in the wild and that the specimen was legally acquired (UNEP-WCMC 2008a, p. 1).
Since its listing in 1987, there have been five CITES-permitted international shipments of the black-breasted puffleg, consisting of a total of 3 specimens imported into the United States and 14 re-exported through the United States. According to the World Conservation Monitoring Centre trade data (UNEP-WCMC 2008c, p. 1), all of these transactions involved the transport of specimens; 9 for scientific purposes, 6 for commercial trade, and 2 for personal purposes. This trade occurred between 1996 and 2002, and there has been no CITES trade in this species since 2002 (UNEP-WCMC 2008c, p. 1). Although we are concerned that the species' small population size (see Factor E) cannot withstand excessive harvest, we believe that this limited amount of international trade, controlled via valid CITES permits, is not a threat to the species.
We are unaware of any other information currently available that addresses the occurrence of overutilization for commercial, recreation, scientific, or education purposes that may be affecting the black-breasted puffleg population. As such, we do not consider overutilization to be a threat to the species.
We are not aware of any occurrence of disease or predation that may be causing a decline of the black-breasted puffleg. As a result, we do not consider disease or predation to be a threat to the black-breasted puffleg.
The black-breasted puffleg is identified as a critically endangered species under Ecuadorian law and Decree 3,516 of 2003—Unified Text of the Secondary Legislation of the Ministry of Environment (Ecolex 2003b, p. 36). Decree 3,516 summarizes the law governing environmental policy in Ecuador and provides that the country's biodiversity be protected and used primarily in a sustainable manner. Appendix 1 of Decree No. 3,516 lists the Ecuadorian fauna and flora that are considered endangered. Species are categorized as critically endangered (En peligro critico), endangered (En peligro), or vulnerable (Vulnerable) (Ecolex 2003b, p. 17). Resolution No. 105 of January 28, 2000, and Agreement No. 143 of January 23, 2003, regulate and prohibit commercial and sport hunting of all wild bird species, except those specifically identified by the Ministry of the Environment or otherwise permitted (Ecolex 2000, p. 1; Ecolex 2003a, p. 1). The Ministry of the Environment does not permit commercial or sport hunting of the black-breasted puffleg because of its status as a critically endangered species (Ecolex 2003b, p. 17). However, we do not consider hunting (Factor B) to be a current threat to the black-breasted puffleg, so this law does not reduce any threats to the species.
Ecuador has numerous laws and regulations pertaining to forests and forestry management including: The Forestry Act (comprised of Law No. 74 of 1981—Forest Act and conservation of natural areas and wildlife (Faolex 1981, p. 1-54)—and Law No. 17 of 2004—Consolidation of the Forest Act and conservation of natural areas and wildlife (Faolex 2004, pp. 1-29)); a Forestry Action Plan (1991-1995); the Ecuadorian Strategy for Forest Sustainable Development of 2000 (Estrategia para el Desarrollo Forestal Sostenible); and, Decree 346, which recognizes that natural forests are highly vulnerable (ITTO 2006, p. 225). However, the International Tropical Timber Organization considered ecosystem management and conservation in Ecuador, including effective implementation of mechanisms that would protect the black-breasted puffleg and its habitat, to be lacking (ITTO 2006, p. 229).
The governmental institutions responsible for oversight appear to be under-resourced, and there is a lack of law enforcement on the ground. Despite the creation of a national forest plan, there appears to be a lack of capacity to implement this plan due to insufficient political support, unclear or unrealistic forestry standards, inconsistencies in application of regulations, discrepancies between actual harvesting practices and forestry regulations, the lack of management plans for protected areas, and high bureaucratic costs. All these inadequacies have facilitated ongoing habitat destruction, such as widespread unauthorized logging (ITTO 2006, p. 229), forest clearing for conversion to agriculture or grazing (Bleiweiss and Olalla 1983, p. 656; del Hoyo 1999, pp. 530-531; Hirschfeld 2007, pp. 178-179), habitat destruction and alteration as a result of fire caused by slash-and-burn agriculture (Bird Conservation 2005, p. 12; Goodland 2002, pp. 16-17; Hirschfeld 2007, pp. 178-179; Phillips 1998, pp. 20-21), habitat destruction and pollution due to oil development and distribution (Amazon Watch 2001, pp. 1-16; BLI 2007, p. 12; Cárdenas and Rodríguez 2004, pp. 355; Goodland 2002, pp. 16-17; Hirschfeld 2007, pp. 178-179; The Mindo Working Group 2001, p. 1); and increased access and habitat destruction resulting from road development (Hirschfeld 2007, pp. 178-179). In addition, most of Ecuador's forests are privately owned or owned by communities (ITTO 2006, p. 224) and the management and administration of Ecuador's forest resources and forest harvest practices is insufficient and unable to protect against unauthorized forest harvesting, degradation, and conversion (ITTO 2006, p. 229). Thus, Ecuadorian forestry regulations have not mitigated the threat of habitat destruction (Factor A).
The Ecuadorian government recognizes 31 different legal categories of protected lands (e.g., national parks, biological reserves, geo-botanical reserves, bird reserves, wildlife reserves, etc.). Currently, the amount of protected land (both forested and non-forested) in Ecuador totals approximately 4.67 million ha (11.5 million ac) (ITTO 2006, p. 228). However, only 38 percent of these lands have appropriate conservation measures in place to be considered protected areas according to international standards (i.e., areas that are managed for scientific study or
The black-breasted puffleg occurs within the Yanacocha Reserve (931 ha (2,300 ac)) at least seasonally, from March to July, as it migrates from higher to lower altitudes (Bird Conservation 2005, p. 12; World Land Trust 2007, p. 1). The area is being managed for ecotourism, environmental education, and conservation initiatives, including restoration of the
The black-breasted puffleg is listed in Appendix II of CITES (UNEP-WCMC 2008b). CITES is an international treaty among 173 nations, including Ecuador and the United States that entered into force in 1975 (UNEP-WCMC 2008a, p. 1). In the United States, CITES is implemented through the U.S. Endangered Species Act (ESA). Under this law, the Secretary of the Interior and the Secretary of Commerce were given the joint responsibility for determining whether to place animals and plants on the Federal list of endangered and threatened species and for taking measures to protect and conserve the listed species. The Secretary of the Interior has delegated the Department's responsibility for CITES to the Director of the U.S. Fish and Wildlife Service (FWS) and established the Scientific and Management Authorities to implement the treaty. Under this treaty, countries work together to ensure that international trade in animal and plant species is not detrimental to the survival of wild populations by regulating the import, export, re-export, and introduction from the sea of CITES-listed animal and plant species (USFWS 2008, p. 1). However, as discussed under Factor B, we do not consider international trade to be a threat impacting the black-breasted puffleg. Therefore, protection under this Treaty does not reduce any threats to the species.
The black-breasted puffleg is protected under CITES. However, overutilization (Factor B) is not a threat to this species. Ecuador has adopted numerous laws and regulatory mechanisms to administer and manage wildlife and their habitat. The black-breasted puffleg is listed as endangered under Ecuadorian law and ranges partly within a protected area (Yanacocha Reserve). However, on-the-ground enforcement of these laws and oversight of the local jurisdictions implementing and regulating activities is insufficient for these measures to be effective in conserving the black-breasted puffleg or its habitat. As discussed under Factor A, habitat destruction, degradation, and fragmentation continue throughout the existing range of the black-breasted puffleg. Therefore, we find that the existing regulatory mechanisms, as implemented, are inadequate to mitigate the primary threat of habitat destruction to the black-breasted puffleg.
Small population sizes render species vulnerable to any of several risks, including inbreeding depression, loss of genetic variation, and accumulation of new mutations. Inbreeding can have individual or population-level consequences, either by increasing the phenotypic expression (the outward appearance or observable structure, function or behavior of a living organism) of recessive, deleterious alleles or by reducing the overall fitness of individuals in the population (Charlesworth Charlesworth 1987, p. 231; Shaffer 1981, p. 131). Small, isolated populations of wildlife species are also susceptible to demographic problems (Shaffer 1981, p. 131), which may include reduced reproductive success of individuals and skewed sex ratios. Once a population is reduced below a certain number of individuals, it tends to rapidly decline towards extinction (Franklin 1980, pp. 147-148; Gilpin and Soule
Based on genetic considerations, a generally accepted approximation of minimum viable population size is described by the 50/500 rule, where minimum viable population size is defined as the minimum number of individuals that is sufficient to respond over time to unexpected environmental conditions within the species' habitat (Shaffer 1981, pp. 132-3; Soule
The black-breasted puffleg's restricted range combined with its small population size (BLI 2007, p. 2; del Hoyo
The black-breasted puffleg is currently limited to one small population; this reduction in range makes it vulnerable to genetic and demographic risks that negatively impact the species' short- and long-term viability. The species' population size has declined considerably within the past 10 years (50-79 percent), and this rate of decline is expected to continue. Based on this information, we have determined that the species is particularly vulnerable to the threat of adverse natural (e.g., genetic, demographic) and manmade (e.g., slash-and-burn agriculture, infrastructural development) events that destroy individuals and their habitat, and that the genetic and demographic risks are exacerbated by the manmade factors (Factor A)
There are three primary factors impacting the continued existence of the black-breasted puffleg: (1) Habitat destruction, fragmentation, and degradation; (2) limited size and isolation of remaining populations; and (3) inadequate regulatory mechanisms. The black-breasted puffleg, a small hummingbird known to exist in one population, occupies a narrow range of distribution, preferring temperate elfin forests at altitudes of between 2,850 and 3,500 m (9,350 and 11,483 ft). The species is an altitudinal migrant, spending the breeding season (November-February) in the humid elfin forest and the rest of the year at lower elevations.
The primary threat to this species, habitat loss, has led to widespread deforestation, and conversion of primary forests to human settlement and agricultural uses has led to the fragmentation of habitat throughout the range of the black-breasted puffleg and isolation of the remaining populations. This habitat, which is already disturbed and fragmented, continues to be altered by anthropogenic factors such as habitat alteration, destruction, and fragmentation as a result of agricultural development, oil development and distribution, and road development. Although the puffleg is listed as a critically endangered species under Ecuadorian law and part of its range occurs within a protected area, implementation of existing regulatory mechanisms is inadequate to protect the species (Factor D), as they have been ineffective in curbing the primary threat to the black-breasted puffleg, which is habitat loss or alteration (Factor A).
The total population size of the black-breasted puffleg is estimated to range from 50 to no more than 250 adult individuals, with a declining trend. The black-breasted puffleg's restricted range, combined with its small population size, makes the species particularly vulnerable to the threat of adverse natural (e.g., genetic, demographic, or environmental) and manmade (e.g., deforestation, habitat alteration, wildfire) events that destroy individuals and their habitat.
We have carefully assessed the best available scientific and commercial information regarding the past, present, and potential future threats faced by the black-breasted puffleg. The population of this species has declined between 50 and 79 percent in the past 10 years, with more than 20 percent of this loss having occurred within the past 5 years, including the possible local extirpation of the species from Volcán Atacazo. These rates of decline are expected to continue. Habitat destruction, alteration, conversion, and fragmentation (Factor A) have been and continue to be factors in the black-breasted puffleg's decline. The impacts of habitat loss are exacerbated by the species' already small population size, making the black-breasted puffleg particularly vulnerable to natural and human factors (e.g., genetic isolation, wildfire, agricultural development, increased human settlement, road development, and oil pipeline development) (Factor E). We consider the threats to the black-breasted puffleg to be equally present and of the same magnitude throughout the species' current range. Based on this information, we conclude that the black-breasted puffleg is in danger of extinction throughout all of its range. Based on the best available scientific and commercial information regarding the past, present, and potential future threats faced by the black-breasted puffleg, we determine that the black-breasted puffleg is endangered throughout its range. Therefore, on the basis of the best available scientific and commercial information, we are proposing to list the black-breasted puffleg as an endangered species.
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments, private agencies and groups, and individuals.
Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR part 402, requires Federal agencies to evaluate their actions within the United States or on the high seas with respect to any species that is proposed or listed as endangered or threatened, and with respect to its critical habitat, if any is being designated. However, given that the black-breasted puffleg is not native to the United States, no critical habitat is being proposed for designation with this rule.
Section 8(a) of the Act authorizes limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered and threatened species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign endangered species and to provide assistance for such programs in the form of personnel and the training of personnel.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. As such, these prohibitions would be applicable to the black-breasted puffleg. These prohibitions, pursuant to 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to “take” (take includes: Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or to attempt any of these) within the United States or upon the high seas, import or export, deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce, any endangered wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species and 17.32 for threatened species. With regard to endangered wildlife, a permit must be issued for the following purposes: For scientific purposes, to enhance the
The Act provides for one or more public hearings on this proposal, if we receive any requests for hearings. We must receive your request for a public hearing within 45 days after the date of this publication in the
In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” that was published on July 1, 1994 (59 FR 34270), we will seek the expert opinion of at least three appropriate independent specialists regarding this proposed rule. The purpose of peer review is to ensure listing decisions are based on scientifically sound data, assumptions, and analysis. We will send copies of this proposed rule to the peer reviewers immediately following publication in the
The Office of Management and Budget has determined that this rule is not significant under Executive Order 12866.
We have determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. A notice outlining our reasons for this determination was published in the
We are required by Executive Orders 12866 and 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (a) Be logically organized; (b) Use the active voice to address readers directly; (c) Use clear language rather than jargon; (d) Be divided into short sections and sentences; and, (e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
A complete list of all references cited in this proposed rule is available on the Internet at
The primary author(s) of this proposed rule is the staff of the Division of Scientific Authority, U.S. Fish and Wildlife Service (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Public Law 99-625, 100 Stat. 3500; unless otherwise noted.
2. In § 17.11(h), by adding a new entry for “puffleg, black-breasted,” in alphabetical order under BIRDS to the List of Endangered and Threatened Wildlife to read as follows:
(h) * * *