Federal Register/Vol. 73, No. 236/Monday, December 8, 2008

Federal Register / Vol. 73, No. 236 / Monday, December 8, 2008 / Proposed Rules 74427

DEPARTMENT OF THE INTERIOR telephone 703–358–1708; facsimile finding is referred to as the ‘‘12-month 703–358–2276. Persons who use a finding’’). Section 4(b)(3)(C) of the Act Fish and Wildlife Service telecommunications device for the deaf requires that a finding of warranted but (TDD) may call the Federal Information precluded for petitioned species should 50 CFR Part 17 Relay Service (FIRS) at 800–877–8339. be treated as having been resubmitted [FWS–R9–IA–2008–0116; 96100–1671–000– SUPPLEMENTARY INFORMATION: on the date of the warranted but B6] precluded finding, and is, therefore, Public Comments subject to a new finding within 1 year RIN 1018–AW38 You may submit your comments and and subsequently thereafter until we materials concerning this proposed rule take action on a proposal to list or Endangered and Threatened Wildlife by one of the methods listed in the withdraw our original finding. The and Plants; Proposed Rule To List ADDRESSES section. We will not Service publishes an annual notice of Black-Breasted Puffleg as Endangered consider comments sent by e-mail or fax resubmitted petition findings (annual Throughout Its Range Under the or to an address not listed in the notice) for all foreign species for which Endangered Species Act ADDRESSES section. listings were previously found to be If you submit a comment via http:// AGENCY: Fish and Wildlife Service, warranted but precluded. www.regulations.gov, your entire Interior. comment—including any personal Previous Federal Action ACTION: Proposed rule. identifying information—will be posted On May 6, 1991, we received a on the Web site. If you submit a SUMMARY: We, the U.S. Fish and petition (1991 petition) from Alison hardcopy comment that includes Wildlife Service (Service), propose to Stattersfield, of International Council for personal identifying information, you list as endangered the foreign species, Bird Preservation (ICBP), to list 53 may request at the top of your document black-breasted puffleg (Eriocnemis foreign birds under the Act, including that we withhold this information from nigrivestis—a hummingbird native to the black-breasted puffleg that is the public review. However, we cannot Ecuador)—under the Endangered subject of this proposed rule. On guarantee that we will be able to do so. December 16, 1991, we made a positive Species Act of 1973, as amended (Act). We will post all hardcopy comments on This proposal, if made final, would 90-day finding and announced the http://www.regulations.gov. initiation of a status review of the extend the Act’s protection to this Comments and materials we receive, species included in the 1991 petition species. We intend that any final action as well as supporting documentation we (56 FR 65207). On March 28, 1994 (59 resulting from this proposal to list this used in preparing this proposed rule, FR 14496), we published a 12-month species be as accurate and as effective will be available for public inspection finding on the 1991 petition, along with as possible. Therefore, we request from on http://www.regulations.gov, or by a proposed rule to list 30 African birds all interested parties comments or appointment, during normal business under the Act, of which were from the suggestions regarding this proposed hours, at the U.S. Fish and Wildlife 1991 petition. In that document, we rule. Service, Division of Scientific announced our finding that listing the Authority, 4401 N. Fairfax Drive, Room DATES: We will accept comments as remaining 38 species from the 1991 indicated in the SUPPLEMENTARY 110, Arlington, VA 22203; telephone 703–358–1708. petition, including the black-breasted INFORMATION section that are received or puffleg, was warranted but precluded postmarked on or before February 6, Background because of other listing activity. 2009. We must receive requests for Per the Service’s listing priority public hearings, in writing, at the Section 4(b)(3)(A) of the Act requires guidelines (September 21, 1983; 48 FR address shown in the FOR FURTHER us to make a finding (known as a ‘‘90- 43098), we identified the listing priority INFORMATION CONTACT section by January day finding’’) on whether a petition to numbers (LPNs) (ranging from 1 to 12) 22, 2009. add a species to, remove a species from, or reclassify a species on the Federal for all outstanding foreign species in our ADDRESSES: You may submit comments Lists of Endangered and Threatened 2007 ANOR (72 FR 20184), published by one of the following methods: on April 23, 2007. In that notice, the • Wildlife and Plants has presented Federal eRulemaking Portal: http:// substantial information indicating that black-breasted puffleg was designated www.regulations.gov. Follow the the requested action may be warranted. with an LPN 2 and we determined that instructions for submitting comments. listing continued to be warranted but • To the maximum extent practicable, the U.S. mail or hand-delivery: Public finding must be made within 90 days precluded. It should be noted that Comments Processing, Attn: FWS–R9– following receipt of the petition and ‘‘Table 1—Candidate Review,’’ in our IA–2008–0116; Division of Policy and published promptly in the Federal 2007 ANOR, erroneously noted the Directives Management; U.S. Fish and Register. If we find that the petition has black-breasted puffleg with an LPN of 3. Wildlife Service; 4401 N. Fairfax Drive, presented substantial information However, the correct LPN in 2007 was Suite 222; Arlington, VA 22203. indicating that the requested action may ‘‘2,’’ as was discussed in the body of the We will not accept comments by e-mail be warranted (a positive finding), notice (72 FR 20184, p. 20197). or fax. We will post all comments on section 4(b)(3)(A) of the Act requires us On January 12, 1995 (60 FR 2899), we http://www.regulations.gov. This to commence a status review of the reiterated the warranted-but-precluded generally means that we will post any species if one has not already been status of the remaining species from the personal information you provide us initiated under our internal candidate 1991 petition, with the publication of (see the SUPPLEMENTARY INFORMATION assessment process. In addition, section the final rule to list the 30 African birds. section below for more information). 4(b)(3)(B) of the Act requires us to make We made subsequent warranted-but- FOR FURTHER INFORMATION CONTACT: a finding within 12 months following precluded findings for all outstanding Rosemarie Gnam, Chief, Division of receipt of the petition on whether the foreign species from the 1991 petition, Scientific Authority, U.S. Fish and requested action is warranted, not including the black-breasted puffleg, as Wildlife Service, 4401 N. Fairfax Drive, warranted, or warranted but precluded published in our annual notices of Room 110, Arlington, VA 22203; by higher priority listing actions (this review (ANOR) on May 21, 2004 (69 FR

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29354), and April 23, 2007 (72 FR International recognize the species as Ridgely and Greenfield 2001b, p. 280). 20184). Eriocnemis nigrivestis (BLI 2007, p. 1; The species will frequently perch and On January 23, 2008, the United UNEP–WCMC. 2008b, p. 1). Therefore, will infrequently alight on the ground States District Court ordered the Service we accept the species as Eriocnemis (del Hoyo et al. 1999, p. 639). to propose listing rules for five foreign nigrivestis, which also follows the Historical Range and Distribution bird species, actions which had been Integrated Taxonomic Information previously determined to be warranted System (ITIS 2008, p. 1). Historically, the black-breasted puffleg inhabited the elfin forests along but precluded: The Andean flamingo Habitat and Life History (Phoenicoparrus andinus), black- the northern ridge-crests of both Volcań breasted puffleg (Eriocnemis nigrivestis), Black-breasted pufflegs prefer humid Pichincha and Volcań Atacazo in Chilean woodstar (Eulidia yarrellii), temperate and elfin forests (Fjeldsa˚ and northwest Ecuador (BLI 2007, p. 2; medium tree finch (Camarhynchus Krabbe 1990, p. 272; Ridgely and Fjeldsa˚ and Krabbe 1990, p. 272; Krabbe pauper), and the St. Lucia forest thrush Greenfield 2001a, p. 373; Ridgely and et al. 1994, p. 9). The species appears to (Cichlherminia lherminieri Greenfield 2001b, p. 280). This habitat have been extirpated from Volcań sanctaeluciae). The court ordered the is described as grassy ridges surrounded Atacazo (World Land Trust 2007, p. 3). Service to issue proposed listing rules by stunted montane forest with a dense It has not been confirmed on Volcań for these species by the end of 2008. understory (de Hoyo et al. 1999, p. 639), Atacazo since 1902; the possible On July 29, 2008 (73 FR 44062), we where Polylepis trees (no common sighting of a female at treeline (3,500 m; published in the Federal Register a name) predominate (World Land Trust 11,483 ft) in 1983 has never been notice announcing our annual petition 2007, p. 1). Altitudinal migrants, the confirmed (BLI 2007, 2; Collar et al. findings for foreign species (2008 species is found mainly at higher 1992, p. 174; del Hoyo et al. 1999, p. ANOR). In that notice, we announced altitudes—above 10,000 feet (ft) (3,100 639). Habitat loss, specifically the that listing was warranted for 30 foreign meters (m))—during the rainy season felling of Polylepis wood for conversion bird species, including the black- (November–February) and at lower to charcoal, was the primary cause of breasted puffleg, which is the subject of elevations 9,006–10,000 ft (2,745–3,100 historical black-breasted puffleg this proposed rule. The Andean m) the rest of the year (del Hoyo et al. declines (Philips 1998, p. 21) (see Factor flamingo, Chilean woodstar, medium 1999, p. 639; Fjeldsa˚ and Krabbe 1990, A). Following more than 13 years tree finch, and St. Lucia forest thrush p. 272). However, the species has been without any observation of the species, are the subject of separate proposed recorded at elevations as low as 7,874 ft the black-breasted puffleg was rules currently under preparation. (2,400 m) up to 11,483 ft (4,570 m) (del rediscovered on Volcań Pichincha in Hoyo et al. 1999, p. 639; Fjeldsa˚ and 1993 (Phillips 1998, p. 21). The number Species Information Krabbe 1990, p. 272; Ridgely and of specimens in museum collections Species Description Greenfield 2001a, p. 374). taken in the nineteenth century up until As recently as 1990, researchers were 1950 is over 100, suggesting the species The black-breasted puffleg, endemic unaware of the puffleg’s breeding habits was once more common (Collar et al. to Ecuador and a member of the (Fjeldsa˚ and Krabbe 1990, p. 272) and 1992, p. 516). hummingbird family (Trochilidae), is there continues to be little information approximately 3.25 inches (in) (8.5 (BLI 2007, p. 1). Del Hoyo et al. (1999, Current Range and Distribution centimeters (cm)) long (Fjeldsa˚ and p. 639) reported that the species breeds The black-breasted puffleg is Krabbe 1990, p. 272; Ridgely and from October to March, producing a currently known to occur only on the Greenfield 2001a, p. 373; Ridgely and clutch size of 2, and that the female north side of Volcań Pichincha near Greenfield 2001b, p. 280). The species is incubates the eggs. Based on the species’ Quito, Ecuador, in temperate elfin locally known as ‘‘Calzadito seasonal migration (del Hoyo et al. forests at altitudes between 9,350 and pechinegro’’ or ‘‘Zamarrito pichinegro’’ 1999, p. 639; Fjeldsa˚ and Krabbe 1990, 11,483 ft (2,850 and 3,500 m) on the (United Nations Monitoring Programme- p. 272), breeding presumably occurs at (Fjeldsa˚ and Krabbe 1990, p. 272; World Conservation Monitoring Centre altitudes above 10,000 ft (3,100 m). Ridgely and Greenfield 2001a, p. 373; (UNEP–WCMC) 2008b, p. 1). Black- Their altitudinal migration coincides Ridgely and Greenfield 2001b, p. 280) breasted pufflegs have distinctive white with the flowering of certain plants Volcań Pichincha peaks at 15,699 ft leg plumage (ergo, the name ‘‘puffleg’’) during the rainy season, including the (4,785 m) (Phillips 1998, p. 21). The and straight, black bills. Males have small rubiad tree (Palicourea huigrensis current extent of the species’ range is entirely black upperparts, mostly black (no common name)), which serves as its approximately 33 square miles (mi2) (88 underparts, and dark steel-blue forked primary nectar source (Bleiweiss and square kilometers (km2)) (BLI 2004, p. 2; tails. Females have shiny, bronze-green Olalla 1983, pp. 657–658; del Hoyo et Hirschfeld 2007, pp. 178–179). upper plumage, turning blue toward the al. 1999, pp. 530–531; Fjeldsa˚ and tail, with golden-green underparts Krabbe 1990, p. 272). The species also Population Estimates (BirdLife International (BLI) 2007, p. 1). feeds on flower nectar of other shrubs The black-breasted puffleg is and vines, including: Thibaudia currently restricted to a single Taxonomy floribunda (no common name), population, ranging in size from 50 to This species was first taxonomically Disterigma sp. (no common name), no more than 250 adult individuals, described by Bourcier and Mulsant in Rubus sp. (no common name), with a declining trend (BLI 2007, p. 2; 1852 and placed in Trochilidae as Tropaeolum sp. (no common name), del Hoyo et al. 1999, p. 530). BirdLife Eriocnemis nigrivestis (BLI 2007, p. 1). and Psychotria uliginosa (no common International, a global organization that According to the species database for name) (Bleiweiss and Olalla 1983, pp. consults with and assimilates the Convention on International Trade 657–658; Collar et al. 1992, pp. 516– information from species experts, in Endangered Species of Wild Fauna 517; del Hoyo et al. 1999, pp. 530–531; estimated that the species has and Flora (CITES), the black-breasted Phillips 1998, p. 21). Black-breasted experienced a population decline of puffleg is also known by the synonym, pufflegs feed low in the shrubbery along between 50 and 79 percent in the past Trichilus nigrivestis (UNEP–WCMC forest margins, often while perched 10 years, with more than 20 percent of 2008b). Both CITES and BirdLife (Fjeldsa˚ and Krabbe 1990, p. 272; this loss having occurred within the

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past 5 years. This rate of decline is 2004, p. 2; Hirschfeld 2007, pp. 178– basin to Esmeraldas on the Pacific Coast predicted to continue (BLI 2007, p. 4). 179). (The Mindo Working Group 2001, p. 1). Deforestation rates and patterns: The The environmental impact study Conservation Status ridge-crests within the range of the revealed that the proposed route went The black-breasted puffleg is black-breasted puffleg are relatively through black-breasted puffleg habitat identified as a critically endangered level, and local settlers have cleared the (The Mindo Working Group 2001, pp. 5, species under Ecuadorian law (Ecolex majority of forested habitat within the 11). Satellite mapping showed that 2003b, p. 36). The black-breasted puffleg species’ range and converted it to potato much of the area in puffleg habitat was is classified as ‘‘Critically Endangered’’ cultivation and grazing (Bleiweiss and already destroyed, with little remaining in the 2006 IUCN Red List, because it Olalla 1983, p. 656; del Hoyo 1999, pp. habitat above 2,800 m (9,186 ft). The has an extremely small range and the 530–531). Some ridges are almost Black-breasted Puffleg had previously population is restricted to one location completely devoid of natural vegetation, been found at 3,100 m (10,167 ft), in an (BLI 2007, p. 1). and even if black-breasted pufflegs still upper extension from the likely Summary of Factors Affecting the occur in these areas, their numbers are unsuitable forested zone lower down. Species most likely quite low (BLI 2004, p. 2). The pipeline, as proposed, would pass The areas outside the Yanacocha through pasture slightly above this Under section 4(a)(1) of the Act (16 Reserve (see Refugia), but still within patch and would further destroy habitat U.S.C. 1533(a)(1)) and regulations the range of the black-breasted puffleg, with the construction of a road (The promulgated to implement the listing continue to be affected by habitat loss Mindo Working Group 2001, p. 11). The provisions of the Act (50 CFR part and fragmentation. In an analysis of pipeline was recently constructed, 424.11), we may list a species as deforestation rates and patterns using transecting every major ecosystem on threatened and endangered on the basis satellite imagery in the western Andean the Volcań Pichinche, including black- of five threat factors: (A) Present or slopes of Colombia and Ecuador, Vin˜ a et breasted puffleg habitat. The pipeline threatened destruction, modification, or al. (2004, pp. 123–124) found that from also deforested pristine habitat, making curtailment of its habitat or range; (B) 1973 through 1996, a total of 82,924 ha these areas more accessible and opening overutilization for commercial, (204,909 ac) of tropical forests within them up to further human infiltration recreational, scientific, or educational the area studied were converted to other (BLI 2007, p. 12). purposes; (C) disease or predation; (D) uses. This corresponds to a nearly one- Refugia: In 2001, the Yanacocha inadequacy of existing regulatory third total loss of primary forest habitat Reserve (reserve) was established on the mechanisms; or (E) other natural or or a nearly 2 percent mean annual rate slopes of Volcań Pichincha (Bird manmade factors affecting its continued within the study area. More recent Conservation 2005, p. 12; Philips 1998, existence. Listing may be warranted reports identified similar forest habitat p. 20). The Reserve encompasses based on any of the above threat factors, losses in Ecuador. Between the years approximately 1,250 ha (3,100 ac), either singly or in combination. 1990 and 2005, Ecuador lost a total of including approximately 960 ha (2,372 Under the Act, we may determine a 2.96 million ha (7.31 million ac) of ac) of elfin (Polylepis spp.) forest species to be endangered or threatened. primary forest, which represents a 16.7 (Hirschfeld 2007, pp. 178–179; World An endangered species is defined as a percent deforestation rate and a total Land Trust 2007, p. 1). This reserve species which is in danger of extinction loss of 21.5 percent of forested habitat encompasses habitat that is used throughout all or a significant portion of since 1990 (Butler 2006, pp. 1–3; FAO seasonally by the black-breasted puffleg, its range. A threatened species is 2003, p. 1). from March to July, when the species is defined as a species which is likely to Other Anthropogenic Factors: Within migrating up or down the mountain become an endangered species within the range of the black-breasted puffleg, (Bird Conservation 2005, p.12; World the foreseeable future throughout all or numerous human activities are affecting Land Trust 2007, p. 1). Within the a significant portion of its range. the current status of the species, reserve, charcoal production, Therefore, for the black-breasted puffleg, including: Clearance of forested habitat considered the primary cause for the we evaluated the best available for subsistence agriculture or species’ historical decline, was scientific and commercial information commercial use or grazing (Hirschfeld forbidden (Philips 1998, p. 21). The under the five listing factors to 2007, pp. 178–179); habitat destruction Yanacocha Reserve is managed for determine whether it met the definition and alteration as a result of fire (Bird ecotourism, environmental education, of endangered or threatened. Conservation 2005, p. 12; Goodland and conservation initiatives, including 2002, pp. 16–17; Hirschfeld 2007, pp. A. The Present or Threatened restoration of the Polylepis woodland 178–179; Phillips 1998, pp. 20–21); (BLI 2007, p. 8; Fondacion Jocotoco Destruction, Modification, or habitat destruction and pollution due to 2006, p. 1). The Reserve is negatively Curtailment of the Habitat or Range oil development and distribution affected by human population The black-breasted puffleg is (Amazon Watch 2001, pp. 1–16; pressures, including clearing for currently restricted to the elfin forests Ca´rdenas and Rodrı´guez 2004, pp. 355; agricultural expansion and fires caused along the northern ridge-crests of the Goodland 2002, pp. 16–17; Hirschfeld by slash-and-burn agricultural practices Volcań Pichincha in northwest Ecuador 2007, pp. 178–179); and increased (Bird Conservation 2005, p. 12; Philips (BLI 2007, p. 2; Fjeldsa˚ and Krabbe access and habitat destruction resulting 1998, p. 21). Hunting, extraction of non- 1990, p. 272; Krabbe et al. 1994, p. 9). from road development (Hirschfeld timber resources (such as orchids), and The species has not been confirmed in 2007, pp. 178–179). Roads create tourism are considered to have a minor any other known locality on Volcań barriers to animal movement, expose impact within the Reserve (BLI 2007, p. Atacazo since 1902 (BLI 2007, 2; Collar animals to traffic hazards, and increase 12). et al. 1992, p. 174). Within the current human access into habitat, facilitating range of the black-breasted puffleg, further exploitation and habitat Summary of Factor A approximately 93 percent of the habitat destruction (Hunter 1996, 158–159). The black-breasted puffleg prefers has been destroyed, and the current In 2001, the Ecuadorian government elfin forests at altitudes between 2,850– extent of the species’ range is agreed to construct a pipeline to 3,500 m (9,350–11,483 ft) (Fjeldsa˚ and approximately 88 km2 (33 mi2) (BLI transport heavy oil from the Amazon Krabbe 1990, p. 272; Ridgely and

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Greenfield 2001a, p. 373; Ridgely and recreation, scientific, or education ecosystem management and Greenfield 2001b, p. 280). The current purposes that may be affecting the conservation in Ecuador, including population is small and limited to a black-breasted puffleg population. As effective implementation of mechanisms narrow elevational band on Volca´n such, we do not consider overutilization that would protect the black-breasted Pichinche, which contains fragmented, to be a threat to the species. puffleg and its habitat, to be lacking disjunct, and isolated habitat. Although (ITTO 2006, p. 229). C. Disease or Predation the species range is partly included in The governmental institutions a protected area, the habitat within the We are not aware of any occurrence responsible for oversight appear to be reserve continues to be altered or of disease or predation that may be under-resourced, and there is a lack of disturbed by human activities. The causing a decline of the black-breasted law enforcement on the ground. Despite construction of a pipeline through puffleg. As a result, we do not consider the creation of a national forest plan, black-breasted puffleg habitat led to loss disease or predation to be a threat to the there appears to be a lack of capacity to and disturbance of pristine habitat and black-breasted puffleg. implement this plan due to insufficient increased human access into the area D. The Inadequacy of Existing political support, unclear or unrealistic with the development of infrastructure. Regulatory Mechanisms forestry standards, inconsistencies in Habitat destruction, alteration, and application of regulations, discrepancies conversion were key factors in the The black-breasted puffleg is between actual harvesting practices and species’ historical decline and continue identified as a critically endangered forestry regulations, the lack of to be factors affecting the status of the species under Ecuadorian law and management plans for protected areas, species. Therefore, we find that the Decree 3,516 of 2003—Unified Text of and high bureaucratic costs. All these present destruction, modification, and the Secondary Legislation of the inadequacies have facilitated ongoing curtailment of habitat are a threat to the Ministry of Environment (Ecolex 2003b, habitat destruction, such as widespread black-breasted puffleg. p. 36). Decree 3,516 summarizes the law unauthorized logging (ITTO 2006, p. governing environmental policy in 229), forest clearing for conversion to B. Overutilization for Commercial, Ecuador and provides that the country’s agriculture or grazing (Bleiweiss and Recreational, Scientific, or Educational biodiversity be protected and used Olalla 1983, p. 656; del Hoyo 1999, pp. Purposes primarily in a sustainable manner. 530–531; Hirschfeld 2007, pp. 178–179), In 1987, the black-breasted puffleg Appendix 1 of Decree No. 3,516 lists the habitat destruction and alteration as a was listed in CITES Appendix II, which Ecuadorian fauna and flora that are result of fire caused by slash-and-burn includes species that are not necessarily considered endangered. Species are agriculture (Bird Conservation 2005, p. threatened with extinction, but which categorized as critically endangered (En 12; Goodland 2002, pp. 16–17; require regulation of international trade peligro critico), endangered (En peligro), Hirschfeld 2007, pp. 178–179; Phillips in order to ensure that trade of the or vulnerable (Vulnerable) (Ecolex 1998, pp. 20–21), habitat destruction species is compatible with the species’ 2003b, p. 17). Resolution No. 105 of and pollution due to oil development survival. International trade in January 28, 2000, and Agreement No. and distribution (Amazon Watch 2001, specimens of Appendix–II species is 143 of January 23, 2003, regulate and pp. 1–16; BLI 2007, p. 12; Ca´rdenas and authorized through permits or prohibit commercial and sport hunting Rodrı´guez 2004, pp. 355; Goodland certificates under certain circumstances, of all wild bird species, except those 2002, pp. 16–17; Hirschfeld 2007, pp. including verification that trade will not specifically identified by the Ministry of 178–179; The Mindo Working Group be detrimental to the survival of the the Environment or otherwise permitted 2001, p. 1); and increased access and species in the wild and that the (Ecolex 2000, p. 1; Ecolex 2003a, p. 1). habitat destruction resulting from road specimen was legally acquired (UNEP– The Ministry of the Environment does development (Hirschfeld 2007, pp. 178– WCMC 2008a, p. 1). not permit commercial or sport hunting 179). In addition, most of Ecuador’s Since its listing in 1987, there have of the black-breasted puffleg because of forests are privately owned or owned by been five CITES-permitted international its status as a critically endangered communities (ITTO 2006, p. 224) and shipments of the black-breasted puffleg, species (Ecolex 2003b, p. 17). However, the management and administration of consisting of a total of 3 specimens we do not consider hunting (Factor B) Ecuador’s forest resources and forest imported into the United States and 14 to be a current threat to the black- harvest practices is insufficient and re-exported through the United States. breasted puffleg, so this law does not unable to protect against unauthorized According to the World Conservation reduce any threats to the species. forest harvesting, degradation, and Monitoring Centre trade data (UNEP– Ecuador has numerous laws and conversion (ITTO 2006, p. 229). Thus, WCMC 2008c, p. 1), all of these regulations pertaining to forests and Ecuadorian forestry regulations have not transactions involved the transport of forestry management including: The mitigated the threat of habitat specimens; 9 for scientific purposes, 6 Forestry Act (comprised of Law No. 74 destruction (Factor A). for commercial trade, and 2 for personal of 1981—Forest Act and conservation of The Ecuadorian government purposes. This trade occurred between natural areas and wildlife (Faolex 1981, recognizes 31 different legal categories 1996 and 2002, and there has been no p. 1–54)—and Law No. 17 of 2004— of protected lands (e.g., national parks, CITES trade in this species since 2002 Consolidation of the Forest Act and biological reserves, geo-botanical (UNEP–WCMC 2008c, p. 1). Although conservation of natural areas and reserves, bird reserves, wildlife reserves, we are concerned that the species’ small wildlife (Faolex 2004, pp. 1–29)); a etc.). Currently, the amount of protected population size (see Factor E) cannot Forestry Action Plan (1991–1995); the land (both forested and non-forested) in withstand excessive harvest, we believe Ecuadorian Strategy for Forest Ecuador totals approximately 4.67 that this limited amount of international Sustainable Development of 2000 million ha (11.5 million ac) (ITTO 2006, trade, controlled via valid CITES (Estrategia para el Desarrollo Forestal p. 228). However, only 38 percent of permits, is not a threat to the species. Sostenible); and, Decree 346, which these lands have appropriate We are unaware of any other recognizes that natural forests are highly conservation measures in place to be information currently available that vulnerable (ITTO 2006, p. 225). considered protected areas according to addresses the occurrence of However, the International Tropical international standards (i.e., areas that overutilization for commercial, Timber Organization considered are managed for scientific study or

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wilderness protection, for ecosystem Summary of Factor D (Charlesworth & Charlesworth 1987, p. protection and recreation, for The black-breasted puffleg is 231; Shaffer 1981, p. 131). Small, conservation of specific natural features, protected under CITES. However, isolated populations of wildlife species or for conservation through management overutilization (Factor B) is not a threat are also susceptible to demographic intervention (IUCN 1994, pp. 17–20). to this species. Ecuador has adopted problems (Shaffer 1981, p. 131), which Moreover, only 11 percent have numerous laws and regulatory may include reduced reproductive management plans, and less than 1 mechanisms to administer and manage success of individuals and skewed sex percent (13,000 ha (32,125 ac)) have wildlife and their habitat. The black- ratios. Once a population is reduced implemented those management plans breasted puffleg is listed as endangered below a certain number of individuals, it tends to rapidly decline towards (ITTO 2006, p. 228). under Ecuadorian law and ranges partly extinction (Franklin 1980, pp. 147–148; The black-breasted puffleg occurs within a protected area (Yanacocha Gilpin and Soule´ 1986, p. 25; Holsinger within the Yanacocha Reserve (931 ha Reserve). However, on-the-ground (2,300 ac)) at least seasonally, from 2000, pp. 64–65; Soule´ 1987, p. 181). enforcement of these laws and oversight Based on genetic considerations, a March to July, as it migrates from higher of the local jurisdictions implementing to lower altitudes (Bird Conservation generally accepted approximation of and regulating activities is insufficient minimum viable population size is 2005, p. 12; World Land Trust 2007, p. for these measures to be effective in 1). The area is being managed for described by the 50/500 rule, where conserving the black-breasted puffleg or minimum viable population size is ecotourism, environmental education, its habitat. As discussed under Factor A, and conservation initiatives, including defined as the minimum number of habitat destruction, degradation, and individuals that is sufficient to respond restoration of the Polylepis woodland fragmentation continue throughout the (Fondacion Jocotoco 2006, p. 1). over time to unexpected environmental existing range of the black-breasted conditions within the species’ habitat However, within the Reserve, there are puffleg. Therefore, we find that the ongoing human population pressures (Shaffer 1981, pp. 132–3; Soule´ 1980, existing regulatory mechanisms, as pp. 160–162). This rule states that an from expanding agriculture, along with implemented, are inadequate to mitigate slash-and-burn agricultural practices effective population (Ne) of 50 the primary threat of habitat destruction individuals is the minimum size (BLI 2007, p. 12) (Factor A). Thus, to the black-breasted puffleg. regulatory mechanisms associated with required to avoid imminent risks from protected land do not mitigate the E. Other Natural or Manmade Factors inbreeding. Ne represents the number of impact of threats from habitat Affecting the Continued Existence of the animals in a population that actually contribute to reproduction (i.e., the destruction. Species number of breeding individuals), and is The black-breasted puffleg is listed in Small Population Size: The black- often much smaller than the census, or Appendix II of CITES (UNEP–WCMC breasted puffleg population has total number of individuals in the 2008b). CITES is an international treaty declined as a result of habitat population (N). Furthermore, the rule among 173 nations, including Ecuador destruction (Bleiweiss and Olalla 1983, states that the long-term fitness of a and the United States that entered into pp. 656–661; Collar et al. 1992, pp. 516– population requires an Ne of at least 500 force in 1975 (UNEP–WCMC 2008a, p. 517) (Factor A). A large collection of individuals, so that it will not lose its 1). In the United States, CITES is museum specimens (over 100) suggests genetic diversity over time and will implemented through the U.S. that the species was more common and maintain an enhanced capacity to adapt Endangered Species Act (ESA). Under more widespread than the currently to changing conditions. Therefore, an this law, the Secretary of the Interior known populations (BLI 2004, p. 2; analysis of the fitness of this population and the Secretary of Commerce were Collar et al. 1994, p. 121). Between 1950 would be a good indicator of the given the joint responsibility for and 1993, only three confirmed species’ overall survivability. The total determining whether to place animals sightings of the species were made population size of the black-breasted and plants on the Federal list of (Hirschfeld 2007, pp. 178–179). The puffleg is estimated to be between 50 endangered and threatened species and black-breasted puffleg ranges partly and 249 individuals. Fifty just meets the for taking measures to protect and within the Yanacocha Reserve, along a threshold for the minimum effective conserve the listed species. The narrow elevational strip between 2,440 population size required to avoid risks Secretary of the Interior has delegated and 3,700 m (8,000 and 12,100 ft) from inbreeding (Ne = 50 individuals). the Department’s responsibility for (Fjeldsa˚ and Krabbe 1990, p. 272; The upper limit of the population, 249 CITES to the Director of the U.S. Fish Krabbe et al. 1994, pp. 8–9). The total individuals, is well below the minimum and Wildlife Service (FWS) and population size of the black-breasted threshold (Ne = 500 individuals) at established the Scientific and puffleg is estimated to range from 50 to which long-term fitness of a population Management Authorities to implement no more than 250 adult individuals, is likely to lose enough genetic diversity the treaty. Under this treaty, countries with the trend of all the populations over time, thus reducing its capacity to work together to ensure that being in decline (BLI 2007, p. 2). adapt to changing conditions. international trade in animal and plant Small population sizes render species The black-breasted puffleg’s restricted species is not detrimental to the survival vulnerable to any of several risks, range combined with its small of wild populations by regulating the including inbreeding depression, loss of population size (BLI 2007, p. 2; del import, export, re-export, and genetic variation, and accumulation of Hoyo et al. 1999, p. 639; Fjeldsa˚ and introduction from the sea of CITES- new mutations. Inbreeding can have Krabbe 1990, p. 272; Krabbe et al. 1994, listed animal and plant species (USFWS individual or population-level p. 9) makes the species particularly 2008, p. 1). However, as discussed consequences, either by increasing the vulnerable to the threat of adverse under Factor B, we do not consider phenotypic expression (the outward natural (e.g., genetic, demographic, or international trade to be a threat appearance or observable structure, environmental) and manmade (e.g., impacting the black-breasted puffleg. function or behavior of a living deforestation, habitat alteration, Therefore, protection under this Treaty organism) of recessive, deleterious wildfire) events that destroy individuals does not reduce any threats to the alleles or by reducing the overall fitness and their habitat (Holsinger 2000, pp. species. of individuals in the population 64–65; Primack 1998, pp. 279–308;

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Young and Clarke 2000, pp. 361–366). mechanisms is inadequate to protect the listing results in public awareness, and As such, we currently consider the species (Factor D), as they have been encourages and results in conservation single black-breasted puffleg population ineffective in curbing the primary threat actions by Federal and State to be at risk due to lack of short- and to the black-breasted puffleg, which is governments, private agencies and long-term viability. habitat loss or alteration (Factor A). groups, and individuals. The total population size of the black- Section 7(a) of the Act, as amended, Summary of Factor E breasted puffleg is estimated to range and as implemented by regulations at 50 The black-breasted puffleg is from 50 to no more than 250 adult CFR part 402, requires Federal agencies currently limited to one small individuals, with a declining trend. The to evaluate their actions within the population; this reduction in range black-breasted puffleg’s restricted range, United States or on the high seas with makes it vulnerable to genetic and combined with its small population respect to any species that is proposed demographic risks that negatively size, makes the species particularly or listed as endangered or threatened, impact the species’ short- and long-term vulnerable to the threat of adverse and with respect to its critical habitat, viability. The species’ population size natural (e.g., genetic, demographic, or if any is being designated. However, has declined considerably within the environmental) and manmade (e.g., given that the black-breasted puffleg is past 10 years (50–79 percent), and this deforestation, habitat alteration, not native to the United States, no rate of decline is expected to continue. wildfire) events that destroy individuals critical habitat is being proposed for Based on this information, we have and their habitat. designation with this rule. determined that the species is We have carefully assessed the best Section 8(a) of the Act authorizes particularly vulnerable to the threat of available scientific and commercial limited financial assistance for the adverse natural (e.g., genetic, information regarding the past, present, development and management of demographic) and manmade (e.g., slash- and potential future threats faced by the programs that the Secretary of the and-burn agriculture, infrastructural black-breasted puffleg. The population Interior determines to be necessary or development) events that destroy of this species has declined between 50 useful for the conservation of individuals and their habitat, and that and 79 percent in the past 10 years, with endangered and threatened species in the genetic and demographic risks are more than 20 percent of this loss having foreign countries. Sections 8(b) and 8(c) exacerbated by the manmade factors occurred within the past 5 years, of the Act authorize the Secretary to (Factor A) including the possible local extirpation encourage conservation programs for of the species from Volca´n Atacazo. foreign endangered species and to Status Determination for the Black- These rates of decline are expected to provide assistance for such programs in Breasted Puffleg continue. Habitat destruction, alteration, the form of personnel and the training There are three primary factors conversion, and fragmentation (Factor of personnel. impacting the continued existence of A) have been and continue to be factors The Act and its implementing the black-breasted puffleg: (1) Habitat in the black-breasted puffleg’s decline. regulations set forth a series of general destruction, fragmentation, and The impacts of habitat loss are prohibitions and exceptions that apply degradation; (2) limited size and exacerbated by the species’ already to all endangered and threatened isolation of remaining populations; and small population size, making the black- wildlife. As such, these prohibitions (3) inadequate regulatory mechanisms. breasted puffleg particularly vulnerable would be applicable to the black- The black-breasted puffleg, a small to natural and human factors (e.g., breasted puffleg. These prohibitions, hummingbird known to exist in one genetic isolation, wildfire, agricultural pursuant to 50 CFR 17.21, make it population, occupies a narrow range of development, increased human illegal for any person subject to the distribution, preferring temperate elfin settlement, road development, and oil jurisdiction of the United States to forests at altitudes of between 2,850 and pipeline development) (Factor E). We ‘‘take’’ (take includes: Harass, harm, 3,500 m (9,350 and 11,483 ft). The consider the threats to the black- pursue, hunt, shoot, wound, kill, trap, species is an altitudinal migrant, breasted puffleg to be equally present capture, or to attempt any of these) spending the breeding season and of the same magnitude throughout within the United States or upon the (November–February) in the humid the species’ current range. Based on this high seas, import or export, deliver, elfin forest and the rest of the year at information, we conclude that the black- receive, carry, transport, or ship in lower elevations. breasted puffleg is in danger of interstate or foreign commerce in the The primary threat to this species, extinction throughout all of its range. course of a commercial activity; or sell habitat loss, has led to widespread Based on the best available scientific or offer for sale in interstate or foreign deforestation, and conversion of and commercial information regarding commerce, any endangered wildlife primary forests to human settlement and the past, present, and potential future species. It also is illegal to possess, sell, agricultural uses has led to the threats faced by the black-breasted deliver, carry, transport, or ship any fragmentation of habitat throughout the puffleg, we determine that the black- such wildlife that has been taken in range of the black-breasted puffleg and breasted puffleg is endangered violation of the Act. Certain exceptions isolation of the remaining populations. throughout its range. Therefore, on the apply to agents of the Service and State This habitat, which is already disturbed basis of the best available scientific and conservation agencies. and fragmented, continues to be altered commercial information, we are Permits may be issued to carry out by anthropogenic factors such as habitat proposing to list the black-breasted otherwise prohibited activities alteration, destruction, and puffleg as an endangered species. involving endangered and threatened fragmentation as a result of agricultural wildlife species under certain development, oil development and Available Conservation Measures circumstances. Regulations governing distribution, and road development. Conservation measures provided to permits are codified at 50 CFR 17.22 for Although the puffleg is listed as a species listed as endangered or endangered species and 17.32 for critically endangered species under threatened under the Act include threatened species. With regard to Ecuadorian law and part of its range recognition, requirements for Federal endangered wildlife, a permit must be occurs within a protected area, protection, and prohibitions against issued for the following purposes: For implementation of existing regulatory certain practices. Recognition through scientific purposes, to enhance the

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propagation or survival of the species, National Environmental Policy Act Scientific Authority, U.S. Fish and and for incidental take in connection (NEPA) (42 U.S.C. 4321 et seq.) Wildlife Service (see FOR FURTHER with otherwise lawful activities. We have determined that INFORMATION CONTACT). Public Hearings Environmental Assessments and Author(s) Environmental Impact Statements, as The Act provides for one or more defined under the authority of the public hearings on this proposal, if we The primary author(s) of this National Environmental Policy Act of receive any requests for hearings. We proposed rule is the staff of the Division 1969, need not be prepared in must receive your request for a public of Scientific Authority, U.S. Fish and connection with regulations adopted hearing within 45 days after the date of Wildlife Service (see ADDRESSES pursuant to section 4(a) of the Act. A this publication in the Federal Register. section). notice outlining our reasons for this Such requests must be made in writing determination was published in the List of Subjects in 50 CFR Part 17 and be addressed to the Chief of the Federal Register on October 25, 1983 Division of Scientific Authority (see (48 FR 49244). Endangered and threatened species, ADDRESSES section). We will schedule Exports, Imports, Reporting and public hearings on this proposal, if any Clarity of the Rule recordkeeping requirements, are requested, and announce the dates, We are required by Executive Orders Transportation. times, and places of those hearings at 12866 and 12988, and by the least 15 days before the first hearing. Presidential Memorandum of June 1, Proposed Regulation Promulgation Peer Review 1998, to write all rules in plain Accordingly, we propose to amend language. This means that each rule we In accordance with our policy, part 17, subchapter B of chapter I, title publish must: (a) Be logically organized; ‘‘Notice of Interagency Cooperative 50 of the Code of Federal Regulations, (b) Use the active voice to address Policy for Peer Review in Endangered as set forth below: readers directly; (c) Use clear language Species Act Activities,’’ that was rather than jargon; (d) Be divided into published on July 1, 1994 (59 FR PART 17—[AMENDED] short sections and sentences; and, (e) 34270), we will seek the expert opinion Use lists and tables wherever possible. of at least three appropriate 1. The authority citation for part 17 If you feel that we have not met these continues to read as follows: independent specialists regarding this requirements, send us comments by one proposed rule. The purpose of peer of the methods listed in the ADDRESSES Authority: 16 U.S.C. 1361–1407; 16 U.S.C. review is to ensure listing decisions are section. To better help us revise the 1531–1544; 16 U.S.C. 4201–4245; Public Law based on scientifically sound data, rule, your comments should be as 99–625, 100 Stat. 3500; unless otherwise assumptions, and analysis. We will send specific as possible. For example, you noted. copies of this proposed rule to the peer should tell us the numbers of the 2. In § 17.11(h), by adding a new entry reviewers immediately following sections or paragraphs that are unclearly for ‘‘puffleg, black-breasted,’’ in publication in the Federal Register. written, which sections or sentences are alphabetical order under BIRDS to the Required Determinations too long, the sections where you feel lists or tables would be useful, etc. List of Endangered and Threatened Regulatory Planning and Review Wildlife to read as follows: (Executive Order 12866) References Cited § 17.11 Endangered and threatened The Office of Management and Budget A complete list of all references cited wildlife. has determined that this rule is not in this proposed rule is available on the significant under Executive Order Internet at http://www.regulations.gov * * * * * 12866. or upon request from the Division of (h) * * *

Species Vertebrate population Historic range where endangered or Status When Critical Special Common name Scientific name threatened listed habitat rules

******* BIRDS

******* Puffleg, black-breasted Eriocnemis nigrivestis Ecuador, South Amer- Entire ...... E ...... NA NA ica.

*******

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Dated: November 25, 2008. Information Relay Service (FIRS) at the requested action may be warranted. H. Dale Hall, 800–877–8339. To the maximum extent practicable, the Director, U.S. Fish and Wildlife Service. SUPPLEMENTARY INFORMATION: finding must be made within 90 days following receipt of the petition and [FR Doc. E8–29004 Filed 12–5–08; 8:45 am] Public Comments BILLING CODE 4310–55–P published promptly in the Federal We intend that any final action Register. If we find that the petition has resulting from this proposal will be as presented substantial information DEPARTMENT OF THE INTERIOR accurate and as effective as possible. indicating that the requested action may Therefore, we request comments or be warranted (a positive finding), Fish and Wildlife Service suggestions on this proposed rule. We section 4(b)(3)(A) of the Act requires us particularly seek comments concerning: to commence a status review of the 50 CFR Part 17 (1) Biological, commercial trade, or species if one has not already been other relevant data concerning any initiated under our internal candidate [FWS–R9–IA–2008–0108; 96100–1671– 0000–B6] threats (or lack thereof) to this species assessment process. In addition, section and regulations that may be addressing 4(b)(3)(B) of the Act requires us to make RIN 1018–AW01 those threats. a finding within 12 months following (2) Additional information concerning receipt of the petition on whether the Endangered and Threatened Wildlife the range, distribution, and population requested action is warranted, not and Plants; Listing the Medium Tree size of this species, including the warranted, or warranted but precluded Finch (Camarhynchus pauper) as locations of any additional populations by higher priority listing actions (this Endangered Throughout Its Range of this species. finding is referred to as the ‘‘12-month AGENCY: Fish and Wildlife Service, (3) Any information on the biological finding’’). Section 4(b)(3)(C) of the Act Interior. or ecological requirements of the requires that a finding of warranted but species. precluded for petition species should be ACTION: Proposed rule. (4) Current or planned activities in the treated as having been resubmitted on SUMMARY: We, the U.S. Fish and areas occupied by the species and the date of the warranted but precluded Wildlife Service (Service), propose to possible impacts of these activities on finding, and is, therefore, subject to a list the medium tree finch this species. new finding within 1 year and (Camarhynchus pauper) as endangered You may submit your comments and subsequently thereafter until we take under the Endangered Species Act of materials concerning this proposed rule action on a proposal to list or withdraw 1973, as amended (Act). This proposal, by one of the methods listed in the our original finding. The Service if made final, would extend the Act’s ADDRESSES section. We will not publishes an annual notice of protection to this species. The Service consider comments sent by e-mail or fax resubmitted petition findings (annual seeks data and comments from the or to an address not listed in the notice) for all foreign species for which public on this proposed rule. ADDRESSES section. listings were previously found to be If you submit a comment via http:// DATES: warranted but precluded. We will accept comments www.regulations.gov, your entire received or postmarked on or before comment—including any personal Previous Federal Actions February 6, 2009. We must receive identifying information—will be posted On May 6, 1991, we received a requests for public hearings, in writing, on the Web site. If you submit a petition (hereafter referred to as the FOR FURTHER at the address shown in the hardcopy comment that includes 1991 petition) from the International INFORMATION CONTACT section by January personal identifying information, you Council for Bird Preservation (ICBP) to 22, 2009. may request at the top of your document add 53 species of foreign birds to the ADDRESSES: You may submit comments that we withhold this information from List of Endangered and Threatened by one of the following methods: public review. However, we cannot Wildlife (50 CFR 17.11(h)), including • Federal eRulemaking Portal: http:// guarantee that we will be able to do so. the medium tree finch, which is the www.regulations.gov. Follow the We will post all hardcopy comments on subject of this proposed rule. In instructions for submitting comments. response to the 1991 petition, we • http://www.regulations.gov. U.S. mail or hand-delivery: Public Comments and materials we receive, published a positive 90-day finding on Comments Processing, Attn: FWS–R9– as well as supporting documentation we December 16, 1991 (56 FR 65207), for all IA–2008–0108; Division of Policy and used in preparing this proposed rule, 53 species, and announced the initiation Directives Management; U.S. Fish and will be available for public inspection of a status review. On March 28, 1994 Wildlife Service; 4401 N. Fairfax Drive, on http://www.regulations.gov, or by (59 FR 14496), we published a 12-month Suite 222; Arlington, VA 22203. appointment, during normal business finding on the 1991 petition, along with We will not accept comments by e-mail hours, at the U.S. Fish and Wildlife a proposed rule to list 30 African birds or fax. We will post all comments on Service, Division of Scientific under the Act (16 U.S.C. 1531 et seq.). http://www.regulations.gov. This Authority, 4401 N. Fairfax Drive, Room In that document, we proposed listing generally means that we will post any 110, Arlington, VA 22203; telephone 15 of the 53 bird species included in the personal information you provide us 703–358–1708. 1991 petition, and announced our (see the Public Comments section below finding that listing the remaining 38 for more information). Background species from the 1991 petition, FOR FURTHER INFORMATION CONTACT: Section 4(b)(3)(A) of the Act requires including the medium tree finch, was Monica A. Horton, Division of Scientific us to make a finding (known as a ‘‘90- warranted but precluded because of Authority, U.S. Fish and Wildlife day finding’’) on whether a petition to other listing activity. Service, 4401 N. Fairfax Drive, Room add a species to, remove a species from, On May 21, 2004 (69 FR 29354) and 110, Arlington, VA 22203; telephone or reclassify a species on the Federal April 23, 2007 (72 FR 20184), we 703–358–1708; facsimile 703–358–2276. List of Endangered and Threatened published in the Federal Register If you use a telecommunications device Wildlife and Plants has presented notices announcing our annual petition for the deaf (TDD), call the Federal substantial information indicating that findings for foreign species. In those

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