Endangered and Threatened Wildlife and Plants; Listing Seven Brazilian Bird Species as Endangered Throughout Their Range, 81794-81815 [2010-32628]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

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



[[Page 81793]]

-----------------------------------------------------------------------

Part IV





Department of the Interior





-----------------------------------------------------------------------



Fish and Wildlife Service



-----------------------------------------------------------------------



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

[[Page 81794]]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 https://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

[[Page 81795]]

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

[[Page 81796]]

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) (https://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

[[Page 81797]]

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 (https://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 
(https://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 (https://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 (https://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, https://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 (https://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 (https://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