Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Cactus Ferruginous Pygmy-Owl, 72547-72573 [2021-27516]

Download as PDF Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules FEDERAL COMMUNICATIONS COMMISSION DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 47 CFR Part 20 50 CFR Part 17 [GN Docket No. 13–111; Report No. 3183; FR ID 62697] [Docket No. FWS–R2–ES–2021–0098; FF09E21000 FXES1111090FEDR 223] Petition for Reconsideration of Action in Rulemaking Proceeding RIN 1018–BF25 Federal Communications Commission. AGENCY: ACTION: Petition for Reconsideration. Petition for Reconsideration (Petition) has been filed in the Commission’s rulemaking proceeding by Thomas C. Power, on behalf of CTIA. Oppositions to the Petition must be filed on or before January 6, 2022. Replies to oppositions must be filed on or before January 18, 2022. DATES: Federal Communications Commission, 45 L Street NE, Washington, DC 20554. ADDRESSES: FOR FURTHER INFORMATION CONTACT: Halie Peacher, Attorney-Advisor, Mobility Division, Wireless Telecommunications Bureau, (202) 418– 0514 or via email at halie.peacher@ fcc.gov. This is a summary of the Commission’s document, Report No. 3183, released December 13, 2021. The full text of the Petition can be accessed online via the Commission’s Electronic Comment Filing System at: http://apps.fcc.gov/ ecfs/. The Commission will not send a Congressional Review Act (CRA) submission to Congress or the Government Accountability Office pursuant to the CRA, 5 U.S.C. 801(a)(1)(A), because no rules are being adopted by the Commission. Subject: In the Matter of Promoting Technological Solutions to Combat Contraband Wireless Device Use in Correctional Facilities, Second Report and Order, published at 86 FR 44635, August 13, 2021, in GN Docket No. 13– 111. This document is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1) and 1.429(f), (g). Number of Petitions Filed: 1. khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Communications Commission. Katura Jackson, Federal Register Liaison Officer. [FR Doc. 2021–27727 Filed 12–21–21; 8:45 am] BILLING CODE 6712–01–P VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: SUMMARY: SUPPLEMENTARY INFORMATION: Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Cactus Ferruginous Pygmy-Owl We, the U.S. Fish and Wildlife Service (Service), propose to list the cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum), a subspecies found in Mexico, southern Arizona, and southern Texas, as a threatened species under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12-month finding on a petition to list the cactus ferruginous pygmy-owl. After a review of the best available scientific and commercial information, we find that listing the subspecies is warranted. Accordingly, we propose to list the cactus ferruginous pygmy-owl as a threatened species with a rule issued under section 4(d) of the Act (‘‘4(d) rule’’). If we finalize this rule as proposed, it would add this subspecies to the List of Endangered and Threatened Wildlife and extend the Act’s protections to the subspecies. The finalization of this rule as proposed would include the issuance of a 4(d) rule. Designation of critical habitat was found to be prudent, but not determinable at this time. We also are notifying the public that we have scheduled an informational meeting followed by a public hearing on the proposed rule. DATES: We will accept comments received or postmarked on or before February 22, 2022. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. Public informational meeting and public hearing: We will hold a public informational session from 4:00 p.m. to 5:30 p.m., Mountain Standard Time, followed by a public hearing from 6:00 p.m. to 7:30 p.m., Mountain Standard Time, on January 25, 2022. ADDRESSES: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: http:// SUMMARY: PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 72547 www.regulations.gov. In the Search box, enter the docket number or RIN for this rulemaking (presented above in the document headings). For best results, do not copy and paste either number; instead, type the docket number or RIN into the Search box using hyphens. Then, click on the Search button. On the resulting page, in the panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on ‘‘Comment.’’ (2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS–R2–ES–2021–0098, U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041– 3803. We request that you send comments only by the methods described above. We will post all comments on http:// www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information). Public informational meetings and public hearings: The public informational meetings and the public hearings will be held virtually using the Zoom platform. See Public Hearing, below, for more information. FOR FURTHER INFORMATION CONTACT: Jeff Humphrey, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, 9828 N 31st Ave., Phoenix, AZ, 85051; telephone 602– 242–0210. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800–877–8339. SUPPLEMENTARY INFORMATION: Executive Summary Why we need to publish a rule. Under the Act, a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become endangered in the foreseeable future throughout all or a significant portion of its range). We have determined that the cactus ferruginous pygmy-owl meets the definition of a threatened species; therefore, we are proposing to list it as such. To the maximum extent prudent and determinable, we must designate critical habitat for any species that we determine to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designation of critical habitat can be completed only by issuing a rule. E:\FR\FM\22DEP1.SGM 22DEP1 72548 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules What this document does. We propose to list the cactus ferruginous pygmy-owl as a threatened species under the Act with a rule issued under section 4(d) of the Act. As explained in this document, we find that the designation of critical habitat for the cactus ferruginous pygmy-owl is not determinable at this time. The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that threats to the cactus ferruginous pygmy-owl include: (1) Habitat loss and fragmentation from urbanization, invasive species, and agricultural or forest production; and (2) climate change (effects from future changes in climate) and climate conditions (effects from current and past climate), resulting in hotter, more arid conditions throughout much of the subspecies’ geographic range. The proposed 4(d) rule would generally prohibit the same activities as prohibited for an endangered species but would allow exemptions for specific types of education and outreach activities already permitted under a Migratory Bird Treaty Act permit and habitat restoration and enhancement activities that improve habitat conditions for the cactus ferruginous pygmy-owl. Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. As explained later in this proposed rule, we find that the designation of critical habitat for the cactus ferruginous pygmy-owl is not determinable at this time. khammond on DSKJM1Z7X2PROD with PROPOSALS Information Requested We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning: VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 (1) The subspecies’ biology, range, and population trends, including: (a) Biological or ecological requirements of the subspecies, including habitat requirements for feeding, breeding, and sheltering; (b) Genetics and taxonomy; (c) Historical and current range, including distribution patterns; (d) Historical and current population levels, and current and projected trends; and (e) Past and ongoing conservation measures for the subspecies, its habitat, or both, and the effectiveness of such measures. (2) Factors that may affect the continued existence of the subspecies, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors. We are also seeking information indicating where threats are disproportionately affecting the cactus ferruginous pygmy-owl within specific portions of its geographical range. (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this subspecies and existing regulations that may be addressing those threats. (4) Additional information concerning the historical and current status, range, distribution, and population size of this subspecies, including the locations of any additional populations of this subspecies. (5) Information on regulations that are necessary and advisable to provide for the conservation of the cactus ferruginous pygmy-owl and that the Service can consider in developing a 4(d) rule for the subspecies. In particular, we are seeking information concerning the extent to which we should include any of the section 9 prohibitions in the 4(d) rule or whether we should consider any additional exceptions from the prohibitions in the 4(d) rule. We encourage public and agency comments related to our consideration of using the State permitting process, if required, in the 4(d) rule as the basis of an exception to the prohibitions on take related to certain pygmy-owl survey and monitoring activities. We are also specifically seeking documentation of the effects and benefits of properly managed grazing on cactus ferruginous pygmy-owl habitat, as well as the threat of current and historical improper grazing in both the United States and Mexico. (6) The reasons why we should or should not designate habitat as ‘‘critical habitat’’ under section 4 of the Act (16 U.S.C. 1531 et seq.), including PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 information to inform the following factors that the regulations identify as reasons why designation of critical habitat may be not prudent: (a) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (b) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (c) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; or (d) No areas meet the definition of critical habitat. (7) Specific information on: (a) Demographic information for the cactus ferruginous pygmy-owl, including dispersal patterns, prey relationships, survival, reproduction, sources of mortality, updated occurrence records, and population trends; (b) The amount and distribution of cactus ferruginous pygmy-owl habitat, including habitat connectivity, patch size, geographic range, and future climate change effects on the subspecies’ habitat; (c) Which areas, that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the subspecies, should be included in the designation and why; (d) Any additional areas occurring within the range of the species, [i.e., Yuma, Maricopa, Pinal, Pima, Santa Cruz, Cochise, Graham, Gila counties in Arizona and Kleberg, Kenedy, Willacy, Cameron, Hidalgo, Brooks, Jim Wells, Duval, Jim Hogg, Starr, Zapata, and Webb counties in Texas], that should be included in the designation because they (1) are occupied at the time of listing and contain the physical or biological features that are essential to the conservation of the species and may require special management considerations, or (2) are unoccupied at the time of listing and are essential for the conservation of the species; (e) Special management considerations or protection that may be needed in critical habitat areas, including managing for the potential effects of climate change; and (f) Which areas, not occupied at the time of listing, are essential for the E:\FR\FM\22DEP1.SGM 22DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules conservation of the subspecies. We particularly seek comments: (i) Regarding whether occupied areas are adequate for the conservation of the subspecies; and (ii) Providing specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the subspecies and contain at least one physical or biological feature essential to the conservation of the species; and (iii) Explaining whether or not unoccupied areas fall within the definition of ‘‘habitat’’ at 50 CFR 424.02 and why. Please include sufficient information with your submission (such as scientific journal articles, research reports, survey results, maps, or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made ‘‘solely on the basis of the best scientific and commercial data available.’’ You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES. If you submit information via http:// www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov. Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on any new information we receive (and any comments on that new information), we may conclude that the subspecies is endangered instead of threatened, or we may conclude that the subspecies does not warrant listing as either an endangered species or a VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 threatened species. We may also conclude that the subspecies is not warranted for listing rangewide, but is warranted in one of the petitioned Distinct Population Segments (DPSs) (see Previous Federal Actions, below). In addition, we may change the parameters of the prohibitions or the exceptions to those prohibitions in the 4(d) rule if we conclude it is appropriate in light of comments and new information received. For example, we may expand the prohibitions to include prohibiting additional activities if we conclude that those additional activities are not compatible with conservation of the species. Conversely, we may establish additional exceptions to the prohibitions in the final rule if we conclude that the activities would facilitate or are compatible with the conservation and recovery of the species. Public Hearing We have scheduled a public informational meeting and public hearing on this proposed rule to list the cactus ferruginous pygmy-owl as a threatened species. We will hold the public informational meeting and public hearing on the date and at the times listed above under Public informational meeting and public hearing in DATES. We are holding the public informational meeting and public hearing via the Zoom online video platform and via teleconference so that participants can attend remotely. For security purposes, registration is required. To listen and view the meeting and hearing via Zoom, listen to the meeting and hearing by telephone, or provide oral public comments at the public hearing by Zoom or telephone, you must register. For information on how to register, or if you encounter problems joining Zoom the day of the meeting, visit https:// www.fws.gov/southwest/. Registrants will receive the Zoom link and the telephone number for the public informational meeting and public hearing. If applicable, interested members of the public not familiar with the Zoom platform should view the Zoom video tutorials (https:// support.zoom.us/hc/en-us/articles/ 206618765-Zoom-video-tutorials) prior to the public informational meeting and public hearing. The public hearing will provide interested parties an opportunity to present verbal testimony (formal, oral comments) regarding this proposed rule. The public informational meeting will be an opportunity for dialogue with the Service. The public hearing is a forum for accepting formal verbal testimony. In the event there is a large attendance, the time allotted for PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 72549 oral statements may be limited. Therefore, anyone wishing to make an oral statement at the public hearing for the record is encouraged to provide a prepared written copy of their statement to us through the Federal eRulemaking Portal, or U.S. mail (see ADDRESSES, above). There are no limits on the length of written comments submitted to us. Anyone wishing to make an oral statement at the public hearings must register before the hearing (https:// www.fws.gov/southwest/). The use of a virtual public hearing is consistent with our regulations at 50 CFR 424.16(c)(3). Reasonable Accommodation The Service is committed to providing access to the public informational meeting and public hearing for all participants. Closed captioning will be available during the public informational meeting and public hearing. Further, a full audio and video recording and transcript of the public hearing will be posted online at https:// www.fws.gov/southwest/ after the hearing. Participants will also have access to live audio during the public informational meeting and public hearing via their telephone or computer speakers. Persons with disabilities requiring reasonable accommodations to participate in the meeting and/or hearing should contact the person listed under FOR FURTHER INFORMATION CONTACT at least 5 business days prior to the date of the meeting and hearing to help ensure availability. An accessible version of the Service’s public informational meeting presentation will also be posted online at https://www.fws.gov/southwest/ prior to the meeting and hearing (see DATES, above). See https://www.fws.gov/ southwest/ for more information about reasonable accommodation. Previous Federal Actions A thorough summary of previous Federal actions related to the pygmyowl can be found in the March 10, 1997, final rule (62 FR 10730) to list the cactus ferruginous pygmy-owl in Arizona as endangered; the April 14, 2006, final rule (71 FR 19452) removing the listing promulgated in the March 10, 1997, final rule; the June 2, 2008, 90-day finding (73 FR 31418); and the October 5, 2011, 12-month finding on a petition to list (76 FR 61856). On March 20, 2007, we received a petition dated March 15, 2007, from the Center for Biological Diversity and Defenders of Wildlife (CBD, DOW; petitioners) requesting that we list the cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) (pygmy-owl) as an endangered or E:\FR\FM\22DEP1.SGM 22DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 72550 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules threatened species under the Act (CBD and DOW 2007, entire). The petitioners described three potentially listable entities of the pygmy-owl: (1) An Arizona DPS of the pygmy-owl; (2) a Sonoran Desert DPS of the pygmy-owl; and (3) the western subspecies of the pygmy-owl, which they identified as Glaucidium ridgwayi cactorum. On October 5, 2011, we published in the Federal Register (76 FR 61856) a 12month finding on the petition to list the pygmy-owl as endangered or threatened. We found that Glaucidium ridgwayi cactorum was not a valid taxon and, therefore, not a listable entity under the Act. Additionally, using the currently accepted taxonomic classification of the pygmy-owl (Glaucidium brasilianum cactorum), we found that listing the pygmy-owl was not warranted throughout all or a significant portion of its range, including the petitioned and other potential DPS configurations. In 2014, the Center for Biological Diversity and Defenders of Wildlife challenged our determination that listing the pygmy-owl was not warranted under the Act (Ctr. For Biological Diversity v. Jewell, 248 F. Supp. 3d 946). The challenge centered on whether we had correctly defined language in the Act authorizing listing of a species that is endangered or threatened in either ‘‘all or a significant portion of its range’’ (SPR). The plaintiffs challenged our final policy interpreting this SPR language (SPR Policy) and how it was applied in listing determinations. In its decision on March 28, 2017, the court reasoned that ‘‘if a portion of a species’ range is ’significant’ only ’if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction,’ and the species is endangered or threatened in that portion (as would be required for listing), then the species is necessarily endangered or threatened overall’’ (248 F.Supp.3d at 959). The court thus found the SPR Policy invalid because it defined ‘‘significant’’ in such a way as to limit the SPR language to situations in which it is unnecessary. The court vacated and remanded the definition of ‘‘significant’’ in the SPR Policy. The not-warranted finding for the cactus ferruginous pygmy-owl relied on a draft of this SPR Policy, which was slightly different than the final policy. The draft SPR Policy interpretation defined a range portion as ‘‘significant’’ ‘‘if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction [i.e., endangered]’’ (76 FR 76987, December VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 9, 2011; p. 77002). The court also found this interpretation of SPR impermissible by limiting the SPR language to situations in which it is unnecessary, and the court vacated our not-warranted finding for the pygmy-owl. On November 14, 2019, the parties to the lawsuit agreed that the Service would submit a 12-month finding to the Federal Register no later than August 5, 2021. On July 6, 2021, the court granted an extension to allow additional time to review new data provided by the Arizona Game and Fish Department. The new deadline requires that the Service submit the 12-month finding to the Federal Register no later than December 16, 2021. This document complies with the court’s deadline. Distinct Population Segment Analysis Regarding the petitioned DPSs in Arizona and the Sonoran Desert included in the 2007 petition, we reaffirm our October 5, 2011, 12-month finding (76 FR 61856). Specifically, we considered a DPS for the Sonoran Desert population of the pygmy-owl and concluded that this population does not meet the discreteness conditions of the Service’s policy regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (61 FR 4722, February 7, 1996). We also considered a DPS for the Arizona population of the pygmy-owl and concluded that, while the discreteness criteria for the DPS were met, we could not show that this DPS was significant to the taxon as a whole. For information regarding our rationale, please see Analysis of Potential Distinct Population Segments in our previous 12-month finding (76 FR 61856, October 5, 2011, pp. 61885– 61889). We will accept comments related to these DPS decisions during the public comment period on this proposed rule (see DATES, above). Supporting Documents A species status assessment (SSA) team prepared an SSA report for the cactus ferruginous pygmy-owl. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the subspecies, including the impacts of past, present, and future factors (both negative and beneficial) affecting the subspecies. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 we sought the expert opinions of five appropriate specialists regarding the SSA report. We received three responses. We also sent the SSA report to 13 partners, including Tribes and scientists with expertise in land management, pygmy-owl and raptor ecology, and climate science, for review. We received review from 11 partners, including State and Federal agencies, universities, and nonprofit organizations. I. Proposed Listing Determination Background A thorough review of the taxonomy, life history, and ecology of the cactus ferruginous pygmy-owl is presented in the SSA report. We summarize this information here. The cactus ferruginous pygmy-owl is a diurnal, nonmigratory subspecies of ferruginous pygmy-owl (Glaucidium brasilianum) and is found from central Arizona south to Michoaca´n, Mexico, in the west and from south Texas to Tamaulipas and Nuevo Leon, Mexico, in the east. Pygmy-owls eat a variety of prey including birds, insects, lizards, and small mammals, with the relative importance of prey type varying throughout the year. The pygmy-owl is a small bird, approximately 17 centimeters (cm) (6.7 inches (in)) long. Generally, male pygmy-owls average 58 grams (g) to 66 g (2.0 to 2.3 ounces (oz)) and females average 70 g to 75 g (2.4 to 2.6 oz). The pygmy-owl is reddish brown overall, with a cream-colored belly streaked with reddish brown. The crown is lightly streaked, and a pair of dark brown or black spots outlined in white occurs on the nape, suggesting eyes (Oberholser 1974, p. 451). The species lacks obvious ear tufts (Santillan et al. 2008, p. 154), and the eyes are yellow. The tail is relatively long for an owl and is reddish brown in color, with darker brown bars. Males have pale bands between the dark bars on the tail, while females have darker reddish bands between the dark bars. Cactus ferruginous pygmy-owls are secondary cavity nesters, nesting in cavities of trees and columnar cacti, with nesting substrate varying throughout its range. Pygmy-owls can breed in their first year and typically mate for life, with both sexes breeding annually. Clutch size can vary from two to seven eggs with the female incubating the eggs for 28 days (Johnsgard 1988, p. 162; Proudfoot and Johnson 2000, p. 11). Fledglings disperse from their natal sites about 8 weeks after they fledge (Flesch and Steidl 2007, p. 36). Pygmyowls live on average 3 to 5 years, but E:\FR\FM\22DEP1.SGM 22DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules have been documented to live 7 to 9 years in the wild (Proudfoot 2009, pers. comm.) and 10 years in captivity (AGFD 2009, pers. comm.). Pygmy-owls are found in a variety of vegetation communities, including Sonoran desertscrub and semidesert grasslands in Arizona and northern Sonora, thornscrub and dry deciduous forests in southern Sonora south to Michoaca´n, Tamaulipan brushland in northeastern Mexico, and live oak forest in Texas. At a finer scale, the pygmyowl is a creature of edges found in semiopen areas of thorny scrub and woodlands in association with giant cacti and in scattered patches of woodlands in open landscapes, such as dry deciduous forests and riparian communities along ephemeral, intermittent, and perennial drainages (Ko¨nig et al. 1999, p. 373). It is often found at the edges of riparian and xeroriparian drainages and even habitat edges created by villages, towns, and cities (Abbate et al. 1999, pp. 14–23; Proudfoot and Johnson 2000, p. 5). The taxonomy of Glaucidium is complicated and has been the subject of much discussion and investigation. Following delisting of the pygmy-owl in 2006 (71 FR 19452; April 14, 2006), the Service was petitioned to relist the pygmy-owl (CBD and DOW 2007, entire). The petitioners requested a revised taxonomic consideration for the pygmy-owl based on Proudfoot et al. (2006a, p. 9; 2006b, p. 946) and Ko¨nig et al. (1999, pp. 160, 370–373), classifying the northern portion of Glaucidium brasilianum’s range as an entirely separate species, G. ridgwayi and recognizing two subspecies of G. ridgwayi: G. r. cactorum in western Mexico and Arizona and G. r. ridgwayi in eastern Mexico and Texas. Other recent studies proposing or supporting the change to G. ridgwayi for the northern portion of G. brasilianum’s range have been published in the past 20 years (Navarro-Sigu¨enza and Peterson 2004, p. 5; Wink et al. 2008, pp. 42–63; Enrı´quez et al. 2017, p. 15). As we evaluated the cactus ferruginous pygmy-owl’s current status, we found that, although there is genetic differentiation at the far ends of the pygmy-owl’s distribution represented by Arizona and Texas, there continues to be uncertainty in the southern portion of the range. This area represents the boundary between the two proposed subspecies, which raises the question of whether there is adequate data to support a change in species classification and define the eastern and western distributions as separate subspecies. While future work and studies may clarify and resolve these VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 issues, we will continue to use the currently accepted distribution of G. brasilianum cactorum as described in the 1957 American Ornithologists’ Union (now the American Ornithological Society) checklist and various other publications (Friedmann et al. 1950, p. 145; Oberholser 1974, p. 452; Johnsgard 1988, p. 159; Millsap and Johnson 1988, p. 137). Regulatory and Analytical Framework Regulatory Framework Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an endangered species or a threatened species. The Act defines an ‘‘endangered species’’ as a species that is in danger of extinction throughout all or a significant portion of its range, and a ‘‘threatened species’’ as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species’ continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. We use the term ‘‘threat’’ to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term ‘‘threat’’ includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term ‘‘threat’’ may encompass—either together or separately—the source of the action or condition or the action or condition itself. However, the mere identification of any threat(s) does not necessarily mean PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 72551 that the species meets the statutory definition of an ‘‘endangered species’’ or a ‘‘threatened species.’’ In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an ‘‘endangered species’’ or a ‘‘threatened species’’ only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future. The Act does not define the term ‘‘foreseeable future,’’ which appears in the statutory definition of ‘‘threatened species.’’ Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term ‘‘foreseeable future’’ extends only so far into the future as the Service can reasonably determine that both the future threats and the species’ responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. ‘‘Reliable’’ does not mean ‘‘certain’’; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions. It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species’ likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species’ biological response include speciesspecific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors. Analytical Framework The SSA report documents the results of our comprehensive biological review of the best scientific and commercial E:\FR\FM\22DEP1.SGM 22DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 72552 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules data regarding the status of the cactus ferruginous pygmy-owl, including an assessment of the potential threats to the subspecies. The SSA report does not represent a decision by the Service on whether the subspecies should be proposed for listing as an endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found under Docket No. FWS–R2–ES– 2021–0098 at http:// www.regulations.gov and at https:// www.fws.gov/southwest/es/arizona/. To assess the cactus ferruginous pygmy-owl’s viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306–310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species’ ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species’ viability. The SSA process can be categorized into three sequential stages. During the first stage, we evaluate the individual species’ life-history needs. The next stage involves an assessment of the historical and current condition of the species’ demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involves making predictions about the species’ responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we use the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision. VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 Summary of Biological Status and Threats In this discussion, we review the biological condition of the cactus ferruginous pygmy-owl and its resources, and the threats that influence the subspecies’ current and future condition, in order to assess the subspecies’ overall viability and the risks to that viability. The overall geographic range of the pygmy-owl is very large (approximately 140,625 square miles [364,217 square kilometers]) and covers two countries, the United States and Mexico. To assist in our analysis, we divided the overall geographic range of the pygmy-owl into five analysis units based upon biological, vegetative, political, climatic, geographical, and conservation differences. The five analysis units are: Arizona, northern Sonora, western Mexico, Texas, and northeastern Mexico. We analyzed each of these analysis units individually and looked at a combined outcome across the entire range of the subspecies. Threats We reviewed the potential risk factors that could be affecting the pygmy-owl now and in the future including: Climate change and climate condition (Factor E), habitat loss and fragmentation (Factor A), human activities and disturbance (Factors B and E), human-caused mortality (Factors B and E), disease and predation (Factor C), and small population size (Factor E). In this proposed rule, we will discuss only those factors in detail that could meaningfully impact the status of the subspecies. Those risks that are not known to have effects on pygmy-owl populations, such as disease, are not discussed here but are evaluated in the SSA report. The primary risk factors affecting the current and future status of the pygmy-owl are: (1) Habitat loss and fragmentation (Factor A), and (2) climate change and climate conditions (Factor E). For a detailed description of the threats analysis, please refer to the Species Status Assessment report (USFWS 2021, entire). Habitat Loss and Fragmentation Pygmy-owls require habitat elements, such as mature woodlands, that include appropriate cavities for nest sites, adequate structural diversity and cover, and a diverse prey base. Urbanization, invasive species, and agricultural or forest production are all leading to a reduction in the extent of habitat and an increase in habitat fragmentation throughout the geographic range of the subspecies. PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 Urbanization Urbanization causes permanent impacts on the landscape that potentially result in the loss and alteration of pygmy-owl habitat. Residential, commercial, and infrastructure development replace and fragment areas of native vegetation resulting in the loss of available pygmyowl habitat and habitat connectivity needed to support pygmy-owl dispersal and demographic support (exchange of individuals and rescue effect) of population groups. Urbanization can also have detrimental effects on wildlife habitat by increasing the channelization or disruption of riverine corridors, the proliferation of exotic species, and the fragmentation of remaining patches of natural vegetation into smaller and smaller pieces that are unable to support viable populations of native plants or animals (Ewing et al. 2005, pp. 1–2; Nabhan and Holdsworth 1998, p. 2). Human-related mortality (e.g., shooting, collisions, and predation by pets) also increases as urbanization increases (Banks 1979, pp. 1–2; Churcher and Lawton 1987, p. 439). Development of roadways and their contribution to habitat loss and fragmentation is a particularly widespread impact of urbanization (Nickens 1991, p. 1). Data from Arizona and Mexico indicate that roadways and other open areas lacking cover affect pygmy-owl dispersal (Flesch and Steidl 2007, pp. 6–7; Abbate et al. 1999, p. 54). Nest success and juvenile survival were also lower at pygmy-owl nest sites closer to large roadways, suggesting that habitat quality may be reduced in those areas (Flesch and Steidl 2007, pp. 6–7). From 2010 to 2020, population growth rates increased in all Arizona counties where the pygmy-owl occurs: Pima (9.3 percent); Pinal (25.7 percent); and Santa Cruz (13 percent) (OEO 2021, unpaginated). Many cities and towns within the historical distribution of the pygmy-owl in Arizona experienced substantial growth between April 2010 and July 2019: Casa Grande (20.7 percent); City of Eloy (17.8 percent); City of Florence (7.7 percent); Town of Marana (41.9 percent); Town of Oro Valley (12.2 percent); and the Town of Sahuarita (20.9 percent) (U.S. Census Bureau 2021, unpaginated).Urban expansion and human population growth trends in Arizona are expected to continue into the future. The Maricopa-Pima-Pinal County areas of Arizona are expected to grow by as much as 132 percent between 2005 and 2050, creating rural-urban edge effects across thousands of acres of pygmy-owl E:\FR\FM\22DEP1.SGM 22DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules habitat (AECOM 2011, p. 13). Additionally, a wide area from the international border in Nogales, through Tucson, Phoenix, and north into Yavapai County (called the Sun Corridor ‘‘Megapolitan’’ Area) is projected to have 11,297,000 people by 2050, a 132 percent increase from 2005 (AECOM 2011, p. 13). If build-out occurs as expected, it will encompass a substantial portion of the current and historical distribution of the pygmy-owl in Arizona. In Texas, the pygmy-owl occurred in good numbers until approximately 90 percent of the mesquite-ebony woodlands of the Rio Grande delta were cleared in 1910–1950 (Oberholser 1974, p. 452). Currently, most of the pygmyowl habitat occurs on private ranch lands and therefore the threat of habitat loss and fragmentation of the remaining pygmy-owl habitat due to urbanization is reduced. However, urbanization and agriculture along the United StateMexico border are likely to continue to isolate the Texas population of pygmyowls by restricting movements between Texas and northeastern Mexico. The United States-Mexico border region has a distinct demographic pattern of permanent and temporary development related to warehouses, exports, and other border-related activities, and patterns of population growth in this area of northern Mexico has accelerated relative to other Mexican States (Pineiro 2001, pp. 1–2). The Sonoran border population has been increasing faster than that State’s average and faster than Arizona’s border population; between 1990 and 2000, the population in the Sonoran border municipios increased by 33.4 percent, compared to Sonora’s average (21.6 percent) and the average increase of Arizona’s border counties (27.8 percent). Urbanization has increased habitat conversion and fragmentation, which, along with immigration, population growth, and resource consumption, were ranked as the highest threats to the Sonoran Desert Ecoregion (Nabhan and Holdsworth 1998, p. 1). This pattern focuses development, and potential barriers or impediments to pygmy-owl movements, in a region that is important for demographic support (immigration events and gene flow) of pygmy-owl population groups, including movements such as dispersal. When looking specifically at the United StatesMexico border region extending from Texas to California, the human population is approximately 15 million inhabitants and this population is expected to double by 2025 (HHS 2017, p. 1). VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 Significant human population expansion and urbanization in the Sierra Madre foothill corridor may represent a long-term risk to pygmyowls in northeastern Mexico. From 2010 to 2015 the population in Tamaulipas increased by 8 percent to 3,527,735 and the population in Nuevo Leo´n increased by 24 percent to 5,784,442 (DataMexico 2021, unpaginated). Such increasing urbanization results in the permanent removal of pygmy-owl habitat reducing habitat availability and, more significantly, increases habitat fragmentation affecting the opportunity for pygmy-owl movements within northeastern Mexico and between Mexico and Texas. Habitat removal in northeastern Mexico is widespread and nearly complete in northern Tamaulipas (Hunter 1988, p. 8). Demographic support (rescue effect) of pygmy-owl population groups is threatened by ongoing loss and fragmentation of habitat in this area. Urbanization has the potential to permanently alter the last major landscape linkage between the pygmy-owl population in Texas and those in northeastern Mexico (Tewes 1993, pp. 28–29). Human population growth in Sinaloa, Nayarit, Colima, and Jalisco, Mexico are relatively slow compared to Sonora and northeastern Mexico. From 2010 to 2015, the population in Sinaloa grew at a rate of 9.3 percent, Nayarit grew at a rate of 13.9 percent, Jalisco grew at a rate of 13.6 percent, and Colima grew at a rate of 12.4 percent (DataMexico 2021, unpaginated). These areas of Mexico are not experiencing the very high growth rates of Sonora and other border regions of Mexico, but will likely have some concurrent spread of urbanization. In addition, most of the growth is taking place in the large cities, and rather than in the rural areas that likely support pygmy-owl habitat (Brinkhoff 2016, unpaginated). However, these Mexican states have other threats to pygmy-owl habitat occurring such as agricultural development and deforestation that, in combination with habitat lost to urbanization, represent threats to the continued viability of the pygmy-owl in this area. Invasive Species The invasion of nonnative vegetation, particularly nonnative grasses, has altered the natural fire regime over the Sonoran Desert ecoregion of the pygmyowl range (Esque and Schwalbe 2002, p. 165). In areas comprised entirely of native species, ground vegetation density is mediated by barren spaces that do not allow fire to carry across the landscape. However, in areas where nonnative species have become PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 72553 established, the fine fuel load is continuous, and fire is capable of spreading quickly and efficiently (Esque and Schwalbe 2002, p. 175). As a result, fire has become a significant threat to the native vegetation of the Sonoran Desert. Nonnative annual plants prevalent within the Sonoran range of the pygmyowl include Bromus rubens and B. tectorum (brome grasses), Schismus spp. (Mediterranean grasses), and Sahara mustard (Brassica tournefortii) (Esque and Schwalbe 2002, p. 165; ASDM 2021, entire). However, the nonnative species that is currently the greatest threat to vegetation communities in Arizona and northern Sonora, Mexico is the perennial Cenchrus ciliaris (buffelgrass), which is prevalent and increasing throughout much of the Sonoran range of the pygmy-owl (Burquez and Quintana 1994, p. 23; Van Devender and Dimmit 2006, p. 5). Buffelgrass is not only fire-tolerant (unlike native Sonoran Desert plant species), but is actually fire-promoting (Halverson and Guertin 2003, p. 13). Invasion sets in motion a grass-fire cycle where nonnative grass provides the fuel necessary to initiate and promote fire. Nonnative grasses recover more quickly than native grass, tree, and cacti species and cause a further susceptibility to fire (D’Antonio and Vitousek 1992, p. 73; Schmid and Rogers 1988, p. 442). While a single fire in an area may or may not produce long-term reductions in plant cover or biomass, repeated wildfires in a given area, due to the establishment of nonnative grasses, are capable of ecosystem type-conversion from native desertscrub to nonnative annual grassland. These repeated fires may render the area unsuitable for pygmyowls and other native wildlife due to the loss of trees and columnar cacti, and reduced diversity of cover and prey species (Brooks and Esque 2002, p. 336). The distribution of buffelgrass has been supported and promoted by governments on both sides of the United States-Mexico border as a resource to increase range productivity and forage production. A 2006 publication estimates that 1.8 million ha (4.5 million ac) have been converted to buffelgrass in Sonora, and that between 1990 and 2000, there was an 82 percent increase in buffelgrass coverage (Franklin et al. 2006, pp. 62, 66). Following establishment, buffelgrass fuels fires that destroy Sonoran desertscrub, thornscrub, and, to a lesser extent, tropical deciduous forest; the disturbed areas are quickly converted to open savannas composed entirely of buffelgrass which removes pygmy-owl nest substrates and generally renders E:\FR\FM\22DEP1.SGM 22DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 72554 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules areas unsuitable for future occupancy by pygmy-owls. Buffelgrass is now fully naturalized in most of Sonora, southern Arizona, and some areas in central and southern Baja California (BurquezMontijo et al. 2002, p. 131), and now commonly spreads without human cultivation (Arriaga et al. 2004, pp. 1509–1511; Perramond 2000, p. 131; Burquez et al. 1998, p. 26). Similar issues occur in Texas. Buffelgrass is now one of the most abundant nonnative grasses in South Texas, and a prevalent invasive grass within the range of the pygmy-owl. During the 1950’s, federal and state land management agencies promoted buffelgrass as a forage grass in South Texas (Smith 2010, p. 113). Buffelgrass is very well adapted to the hot, semiarid climate of South Texas due to its drought resistance and ability to aggressively establish in heavily grazed landscapes (Smith 2010, p. 113). Despite increasing awareness of the ecological damage caused by nonnative grasses, buffelgrass is still planted in areas affected by drought and overgrazing to stabilize soils and to increase rangeland productivity. Prescribed burning used for brush control typically promotes buffelgrass forage production in South Texas (Hamilton and Scifres 1982, p. 11). Buffelgrass often creates homogeneous monocultures by outcompeting native plants for essential resources (Lyons et al. 2013, p. 8). Furthermore, buffelgrass produces phytotoxins in the soil that inhibit the growth of neighboring native plants (Vo 2013, unpaginated). With regard to pygmy-owl habitat, the loss of trees and canopy cover and the creation of dense ground cover resulting from buffelgrass conversion reduces nest cavity availability, cover for predator avoidance and thermoregulation, and prey availability. Overall, buffelgrass is the dominant herbaceous cover on 10 million ha in southern Texas and northeastern Mexico (Wied et al. 2020, p. 47). The impacts of buffelgrass establishment and invasion are substantial for the pygmy-owl in the United States and Mexico because conversion results in the loss of important habitat features, particularly columnar cacti and trees that provide nest sites. Buffelgrass invasion and the subsequent fires eliminate most columnar cacti, trees, and shrubs of the desert (Burquez-Montijo et al. 2002, p. 138). This elimination of trees, shrubs, and columnar cacti from these areas is a potential threat to the survival of the pygmy-owl in the northern part of its range, as these vegetation components are necessary for roosting, nesting, VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 protection from predators, and thermal regulation. Invasion and conversion to buffelgrass also negatively affect the diversity and availability of prey species in these areas (Franklin et al. 2006, p. 69; Avila-Jimenez 2004, p. 18; BurquezMontijo et al. 2002, pp. 130, 135). Buffelgrass is adapted to dry, arid conditions and does not grow in areas with high rates of precipitation or high humidity, above elevations of 1,265 m (4,150 ft), or in areas with freezing temperatures. Areas that support pygmy-owls south of Sonora and northern Sinaloa typically are wetter and more humid, and the best available information does not indicate that buffelgrass is invading the southern portion of the pygmy-owl’s range. Surveys completed in Sonora and Sinaloa in 2006 noted buffelgrass was present in Sonora and northern Sinaloa, but the more southerly locations were noted as sparse or moderate (Van Devender and Dimmitt 2006, p. 7). As such, this nonnative species only affects the northern parts of the pygmy-owl’s range. Agricultural Production and Wood Harvesting Agricultural development and wood harvesting can result in substantial impacts to the availability and connectivity of pygmy-owl habitat. Conversion of native vegetation communities to agricultural fields or pastures for grazing has occurred within historical pygmy-owl habitat in both the United States and Mexico, and not only removes existing pygmy-owl habitat elements, but also can affect the longterm ability of these areas to return to native vegetation communities once agricultural activities cease. Wood harvesting has a direct effect on the amount of available cover and nest sites for pygmy-owls and is often associated with agricultural development. Wood harvesting also occurs to supply firewood and charcoal, and to provide material for cultural and decorative wood carvings. In Arizona, although new agricultural development is limited, the effects to historical habitat are still evident. Many areas that historically supported mesoand xeri-riparian habitat have been converted to agricultural lands and associated groundwater pumping has affected the hydrology of these valleys (Jackson and Comus 1999, pp. 233, 249). These riparian areas are important pygmy-owl habitat, especially within drier upland vegetation communities like Sonoran desertscrub and semidesert grasslands. Habitat fragmentation as a result of agricultural development has also PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 occurred within Texas. Brush clearing, pesticide use, and irrigation practices associated with agriculture have had detrimental effects on the Lower Rio Grande Valley (Jahrsdoerfer and Leslie 1988, p. 1). From the 1920’s until the early 1970’s, over 90 percent of pygmyowl habitat in the Lower Rio Grande Valley of Texas was cleared for agricultural and urban expansion (Oberholser 1974, p. 452). The Norias Division of the King Ranch in southern Texas has been isolated by agricultural expansion, which has restricted pygmyowl dispersal (Oberholser 1974). This has resulted in loss of pygmy-owl habitat connectivity between pygmyowl population groups in Texas and in Mexico. Historically, agriculture in Sonora, Mexico, was restricted to small areas with shallow water tables, but it had, nonetheless, seriously affected riparian areas by the end of the nineteenth century. For example, in the Rio Mayo and Rio Yaqui coastal plains, nearly one million ha (2.5 million ac) of mesquite, cottonwood, and willow riparian forests and coastal thornscrub disappeared after dams upriver started to operate (Burquez and Martinez-Yrizar 2007, p. 543). Other Mexican states within the range of the pygmy-owl show similar potential for habitat loss. For example, in Tamaulipas, area under irrigation increased from 174,400 to 494,472 ha (431,000 to 1.22 million ac) between 1998 and 2004, with an area of 668,872 ha (1.65 million ac) equipped for irrigation. However, agricultural development in the States of Colima, Jalisco, Nayarit, and Nuevo Leon had substantial decreases in the amount of irrigated lands over the same period (FAO 2007, unpaginated). Although land continues to be converted to agriculture within the geographic range of the pygmy-owl, we do not know if the areas being converted currently support pygmy-owl habitat. Continuing destruction of pygmy-owl habitat for agricultural production is not occurring with the same intensity throughout the range of the pygmy-owl, and the area in agricultural production may be declining in some parts of its southern range. Wood harvesting is also a potential threat to pygmy-owl habitat. Ironwood (Olneya tesota) and mesquite (Prosopis spp.) are harvested throughout the Sonoran Desert for use as charcoal, fuelwood, and carving (Burquez and Martinez Yrizar 2007, p. 545). For instance, by 1994, 202,000 ha (500,000 ac) of mesquite had been cleared in northern Mexico to meet the growing demand for mesquite charcoal (Haller 1994, p. 1). Unfortunately, woodcutters E:\FR\FM\22DEP1.SGM 22DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules and charcoal makers utilize large, mature mesquite and ironwood trees growing in riparian areas (Taylor 2006, p. 12), which is the tree class that is of most value as pygmy-owl habitat. Loss of leguminous trees results in long-term effects to the soil as they add organic matter, fix nitrogen, and add sulfur and soluble salts, affecting overall habitat quality and quantity (Rodriguez Franco and Aguirre 1996, p. 6–47). Ironwood and mesquite trees are important nurse species for saguaros, the primary nesting substrate for pygmy-owls in the northern portion of their range (Burquez and Quintana 1994, p. 11). Declining tree populations in the Sonoran Desert as a result of commercial uses and land conversion threatens other plant species and may alter the structure and composition of the vertebrate and invertebrate communities as well (Bestelmeyer and Schooley 1999, p. 644). This has implications for pygmyowl prey availability because pygmyowls rely on a seasonal diversity of vertebrate and invertebrate prey species; loss of tree structure and diversity reduces prey diversity and availability. Once common in areas of the Rio Grande delta, significant habitat loss and fragmentation due to woodcutting have now caused the pygmy-owl to be a rare occurrence in this area of Texas. Oberholser (1974, p. 452) concluded that agricultural expansion and subsequent loss of native woodland and thornscrub habitat, begun in the 1920’s, preceded the rapid demise of pygmyowl populations in the Lower Rio Grande Valley of southern Texas. Because much of the suitable pygmyowl habitat in Texas occurs on private ranches, habitat areas are subject to potential impacts that are associated with ongoing ranch activities such as grazing, herd management, fencing, pasture improvements, construction of cattle pens and waters, road construction, and development of hunting facilities. Brush clearing, in particular, has been identified as a potential factor in present and future declines in the pygmy-owl population in Texas (Oberholser 1974, p. 452). However, relatively speaking, the current loss of habitat is much reduced in comparison to the historical loss of habitat in Texas. Conversely, ranch practices that enhance or increase pygmy-owl habitat to support ecotourism can contribute to conservation of the pygmy-owl in Texas (Wauer et al. 1993, p. 1076). The best available information does not indicate that current ranching practices are significantly affecting pygmy-owl habitat in Texas. VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 Habitat fragmentation in northeastern Mexico is extensive, with only about two percent of the ecoregion remaining intact, and no habitat blocks larger than 250 square km (96.5 square mi), and no significant protected areas (Cook et al. 2000, p. 4). Fire is often used to clear woodlands for agriculture in this area of Mexico, and many of these fires are not adequately controlled. There may be fire-extensive related effects to native plant communities (Cook et al. 2000, p. 4); however, there is no available information of how much area may be affected by this activity. Areas of dry subtropical forests, important habitat for pygmy-owls in southwestern Mexico, have been used by humans through time for settlement and various other activities (Trejo and Dirzo 2000, p. 133). The long-term impact of this settlement has converted these dry subtropical forests into shrublands and savannas lacking large trees, columnar cacti, and cover and prey diversity that are important pygmyowl habitat elements. In Mexico, dry tropical forest is the major type of tropical vegetation in the country, covering over 60 percent of the total area of tropical vegetation. About 8 percent (approximately 160,000 square km (61,776 square mi)) of this forest remained intact by the late 1970s, and an assessment made at the beginning of the present decade suggested that 30 percent of these tropical forests have been altered and converted to agricultural lands and cattle grasslands (Trejo and Drizo 2000, p. 134). However, the best available information indicates that there are still expanses of dry tropical forest along the Pacific coast in Mexico, including some areas below 1,200 m (4,000 ft) where pygmy-owls are found. Summary of Habitat Loss and Fragmentation In summary, pygmy-owls require habitat elements such as mature woodlands that include appropriate cavities for nest sites, adequate structural diversity and cover, and a diverse prey base. These habitat elements need to be available across the geographic range of the pygmy-owl and spatially arranged to allow connectivity between habitat patches. Pygmy-owl habitat loss and fragmentation are affecting pygmy-owl viability throughout its range. These threats vary in scope and intensity throughout the pygmy-owl’s geographic range and specific threats are a more significant issue in certain parts of the range than in others. For example, in Arizona and Northern Sonoran, pygmy-owl habitat loss and fragmentation resulting from PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 72555 urbanization, changing fire regimes due to the invasion of buffelgrass, and agricultural development and woodcutting are significant threats that have negatively affected pygmy-owl habitat. In Texas, historical loss of habitat has reduced the pygmy-owl range, but current impacts are reduced from historical levels in their magnitude and severity. However, in Texas and other areas of the pygmy-owl’s range, these past impacts continue to affect the current extent of available pygmy-owl habitat, because of the extended time it takes for these lands to recover. Therefore, even if habitat destruction ceases, the negative effects of past land use are expected to continue in many of these areas into the future. For the remainder of the pygmy-owl’s range and habitat in Mexico (northeastern Mexico and south of Sonora), data available for our analysis were limited. The rate of growth in these southern Mexican States appears to be lower than in Sonora and the Arizona border region. Historical loss of pygmy-owl habitat in northeastern Mexico has occurred, but the extent to which significant habitat destruction is currently taking place is not available. In addition, pygmy-owls are still considered common in the southern part of their range (Enriquez-Rocha et al. 1993, p. 154; Cartron et al. 2000, p. 5; GBIF 2020). This information indicates that the impacts to pygmy-owl habitat discussed herein may be having different levels of effects on the populations of pygmyowls throughout their range, and habitat effects may not have the impacts to pygmy-owl population groups in the southern portion of the pygmy-owl’s range due to increased pygmy-owl numbers. Nonetheless, Enrı´quez and Vazquez-Perez (2017, p. 546) indicate that during the last 50 years, Mexico has seen drastic changes in land uses due to rapid urbanization and industrialization, which has been poorly planned. The result has been impacts to the natural environment, including the degradation and loss of biological diversity in Mexico. There has been limited work in Mexico, however, to understand what the direct impacts of these threats are on owl population losses and changes in distribution and abundance of subspecies in long term (Enrı´quez and Vazquez-Perez 2017, p. 546). Climate Change and Climate Conditions Climate change projections within the geographic range of the pygmy-owl show that increasing temperatures, decreasing precipitation, and increase intensity of weather events are likely E:\FR\FM\22DEP1.SGM 22DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 72556 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules (Karmalkar et al. 2011, entire; Bagne and Finch 2012, entire; Coe et al. 2012, entire; and Jiang and Yang 2012, entire). Climate influences pygmy-owl habitat conditions and availability through the loss of vegetation cover, reduced prey availability, increased predation, reduced nest site availability, and vegetation community change. The majority of the current range of the pygmy-owl occurs in tropical or subtropical vegetation communities, which may be reduced in coverage if climate change results in hotter, more arid conditions. Additionally, models predict that the distribution of suitable habitat for saguaros, the primary pygmyowl nesting substrate within the Sonoran Desert ecoregion, will substantially decrease over the next 50 years under a moderate climate change scenario (Weiss and Overpeck 2005, p. 2074; Thomas et al. 2012, p. 43). Climate change scenarios project that drought will occur more frequently and increase in severity, with a decrease in the frequency and increase in severity of precipitation events (Seager et al. 2007, p. 9; Cook et al. 2015, p. 6; Pascale et al. 2017, p. 806; Williams et al. 2020, p. 317). Drought and changes to the timing and intensity of precipitation events may reduce available cover and prey for pygmy-owls adjacent to riparian areas through scouring flood events and reduced moisture retention. Although the extent to which changing climatic patterns will affect the pygmy-owl is better understood following the past decade of observations in the field, there remains uncertainty with regard to the overall extent and timing of impacts. Synergistic interactions are likely to occur between the effects of climate change and habitat fragmentation and loss. Climate change projections indicate that conditions will likely favor increased occurrence and distribution of nonnative, invasive species and alteration of historical fire regimes. Climate change may also affect the viability of the pygmy-owl through precipitation-driven changes in plant and insect biomass, which in turn influence abundance of lizards, small mammals, and birds (Jones 1981, p. 111; Flesch 2008, p. 5; Flesch et al. 2015, p. 26). Decreased precipitation generally reduces plant cover and insect productivity, which in turn reduce the abundance and availability of pygmyowl prey species. Similarly, increased temperatures reduce pygmy-owl prey activity due to increased energetic demands of thermoregulation and a decreased availability of prey and cover (Flesch et al. 2015, p. 26). These indirect effects on prey availability and direct VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 effects on prey activity affect nestling growth, development, and survival. When decreased precipitation affects food supply and increased temperature affects prey activity, reduced pygmyowl productivity is likely to result in reduced pygmy-owl resiliency (Flesch et al. 2015, p. 26). Climate change can also influence natural events, such as hurricanes and tropical storms, which can modify and fragment habitats, primarily through loss of woody cover. Historical and ongoing threats to the pygmy-owl from habitat loss and fragmentation as well as from climate change and climate conditions, have shaped the current habitat and population conditions of the subspecies throughout its range. Current Condition To assess resiliency, we evaluated six components that broadly related to the subspecies’ population demography or physical environment and for which we had data sufficient to conduct the analysis. We assessed each analysis unit’s physical environment by examining three components determined to have the most influence on the subspecies: Habitat intactness, prey availability, and vegetation health and cover. We also assessed each analysis unit’s demography through abundance, occupancy, and evidence of reproduction. We established parameters for each component by evaluating the range of existing data and separating those data into categories based on our understanding of the subspecies’ demographics and habitat. Using the demographic and habitat parameters, we then categorized the overall condition of each analysis unit. We provide a summary of each of the six factors below and describe them in detail in the SSA report (Service 2021, entire). Demographic Factors Abundance: Larger populations have a lower risk of extinction than smaller populations (Pimm et al. 1988, pp. 773– 775; Trombulak et al. 2004, p. 1183). In contrast, small populations are less resilient and more vulnerable to the effects of demographic, environmental, and genetic stochasticity, and have a higher risk of extinction than larger populations (Trombulak et al. 2004, p. 1183). Small populations may experience increased inbreeding, loss of genetic variation, and ultimately a decreased potential to adapt to environmental change (Trombulak et al. 2004, p. 1183; Harmon and Braude 2010, p. 125; Benson et al. 2016, pp. 1– 2). The abundance of pygmy-owls within each analysis unit must be high PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 enough to support persistence of pygmy-owl population groups (multiple breeding pairs of pygmy-owls within relatively discrete geographic areas) within the analysis unit. This is accomplished by having adequate patches of habitat to support multiple nesting pairs of pygmy-owls and their offspring, have adequate habitat connectivity to support establishment of additional territories by dispersing young, and supply floaters (unpaired individuals of breeding age) within each pygmy-owl population group to offset loss of breeding adults and to provide potential mates for dispersing juveniles. Occupancy: Sufficiently resilient pygmy-owl populations must occupy large enough areas such that stochastic events and environmental fluctuations that affect individual pygmy-owls, or population group of pygmy-owls, do not eliminate the entire population. Pygmyowls are patchily distributed across the landscape in population groups of nesting owls. Each of these population groups must be occupied by large enough numbers of pygmy-owls to enable the population group to persist on the landscape over time. Enough occupied population groups of pygmyowls must also exist on the landscape, with interconnected habitat supporting movement among population groups, so that each population group can receive or exchange individuals with any given adjacent population group. Pygmy-owl occupancy is an indicator of habitat conditions as well as demographic factors, such as reproduction and survival. Habitats that support large numbers of pygmy-owls are better able to provide floaters and available mates to dispersing pygmyowls from adjacent populations. These floaters are able to serve as replacement breeders if either or both members of an existing breeding pair are lost. Observations indicate that if a site is occupied by a breeding pair, they will breed. Survival of adults also affects occupancy, as some occupied sites will be abandoned if one of the adult breeders perishes. These sites can be reoccupied in the future when floaters or dispersing birds move into the area. Evidence of reproduction: Resilient pygmy-owl populations must also reproduce and produce a sufficient number of young such that recruitment equals or exceeds mortality. Current population size and abundance reflects previous influences on the population and habitat, while reproduction and recruitment reflect population trends that may be stable, increasing, or decreasing in the future. Adequately resilient populations of the pygmy-owl must have sufficient numbers of E:\FR\FM\22DEP1.SGM 22DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules individuals to replace members of breeding pairs that have been lost and to support persistent population groups of nesting pygmy-owls through dispersal. However, the necessary reproductive rate needed for a selfsustaining population is unknown. Additionally, key demographic parameters of pygmy-owl populations (e.g., survival, life expectancy, lifespan, productivity, etc.) are unknown throughout most of the geographic range. Due to the lack of information on demographic parameters of reproduction, recruitment, and survival, we broadly considered evidence of reproduction to include any evidence of reproduction (e.g., active nests, presence of eggs or nestlings, fledglings, etc.), as well as persistence of occupied territories and population groups in an area over a sufficient amount of time to indicate evidence of reproduction. Thus, evidence of reproduction on a consistent basis over time likely indicates a sufficiently resilient population. Habitat intactness: Adequately resilient pygmy-owl populations need intact habitat that is large enough to support year-round occupancy, as well as connectivity between habitat patches to enable dispersal. Pygmy-owls are patchily distributed across much of their geographic range. These pygmyowl population groups are dependent on interchange of individuals in order to maintain adequate numbers and genetic diversity on the landscape. Habitat connectivity is crucial to maintaining pathways for the interchange of individuals among pygmy-owl population groups. Prey availability: Adequate prey availability is a key component for maintaining resiliency in pygmy-owl populations. Year-round prey availability is essential throughout the range of the pygmy-owl, with portions of the geographic range characterized by seasonal variability in available prey resources. The abundance of many of these prey species is influenced by annual and seasonal precipitation through increases and decreases in vegetation cover and diversity, which also influences insect abundance and availability. Sufficiently resilient pygmy-owl populations require adequate precipitation to support yearround prey availability. This includes appropriately timed precipitation to support seasonally available prey such as lizard, insects, and small mammals. Vegetation cover: Sufficiently resilient pygmy-owl populations require adequate vegetation to provide cover for predator avoidance, thermoregulation, hunting, and nest cavities. Of primary VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 importance for cover is the presence of woody vegetation canopy. Maintenance of the health and vigor of this woody cover is a key component to maintaining resiliency of pygmy-owl populations. Summary of Current Condition of the Subspecies Currently, the cactus ferruginous pygmy-owl occurs from southern Arizona, south to Michoaca´n in the western portion of its range, and from southern Texas to Tamaulipas and Nuevo Leon in the eastern portion of its range. For our analysis, we divided the pygmy-owl’s overall range into five analysis units: Arizona, northern Sonora, western Mexico, Texas, and northeastern Mexico (see Figure 1, below). The primary factors currently affecting the condition of cactus ferruginous pygmy-owl populations include climate conditions, and habitat fragmentation and loss. Resiliency The Arizona analysis unit currently has the lowest pygmy-owl abundance of all analysis units, which is estimated to be in the low hundreds. Habitat fragmentation and loss from urbanization and increases in invasive species such as buffelgrass, have reduced the availability and connectivity of habitat in this analysis unit. Additionally, climate conditions have reduced prey availability and vegetative cover through increased temperatures and drought. These factors result in a reduced capacity for this analysis unit to withstand stochastic events and result in a low resiliency currently. The northern Sonora analysis unit has an estimated pygmy-owl abundance in the high hundreds. However, this analysis unit is affected by habitat fragmentation from urbanization, agricultural development, and associated infrastructure. These stressors increase water use and, in conjunction with climate conditions, result in a reduction in the quality and availability of pygmy-owl habitat. Due to moderate owl abundance and some decrease in habitat availability and connectivity, the northern Sonora analysis unit has a moderate level of population resiliency. The western Mexico analysis unit is estimated to have tens of thousands of pygmy-owls. This analysis unit has some habitat fragmentation from urbanization, agricultural development, and deforestation of the tropical deciduous forests. Overall, the western Mexico analysis unit has high population resiliency due to high abundance of pygmy-owls and healthy PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 72557 vegetation cover, likely as a result of high levels of precipitation in the region. The Texas analysis unit has an estimated pygmy-owl abundance in the high hundreds. Land ownership within this analysis unit has resulted in habitat fragmentation and, due to agricultural development and wood harvesting within the Rio Grande Valley, this analysis unit is somewhat genetically isolated from the rest of the geographic range of the subspecies. Due to moderate pygmy-owl abundance, fragmentation of habitat, and some genetic isolation, the Texas analysis unit has a moderate level of population resiliency. The northeast Mexico analysis unit is estimated to have tens of thousands of pygmy-owls. However, this unit has high levels of habitat fragmentation due to urbanization and agricultural development. Overall, the northeast Mexico analysis unit has a moderate level of population resiliency with some capacity to withstand stochastic events. Rangewide, current condition of the pygmy-owl populations indicate that three analysis units are maintaining a moderate level of population resiliency, one analysis has low resiliency, and one analysis unit has high resiliency. Representation Resiliency, and the factors that drive resiliency, also contribute to the pygmyowl’s representation on the landscape. Pygmy-owls occupy a diversity of habitat types throughout the geographic range of the subspecies and maintain substantial genetic diversity. The subspecies’ adaptive potential (representation) is currently high due to genetic and ecological variability across the range. There is substantial genetic diversity across the range (Proudfoot et al. 2006a, entire; 2006b, entire) due to isolation-by-distance and geographic barriers. Additionally, across the range, the pygmy-owl occupies a diverse range of ecological settings as a result of geographic gradients of vegetation, climate, elevation, topography, and other landscape elements. Such ecological diversity could help the pygmy-owl adapt to and survive future environmental changes, such as warming temperatures or decreased precipitation from climate change. Redundancy We assessed the number and distribution of populations across the pygmy-owl’s geographic range as a measure of its redundancy. While the numbers and densities of pygmy-owls are lower in some analysis units, these portions of the range still contribute in E:\FR\FM\22DEP1.SGM 22DEP1 72558 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS a meaningful way to the overall pygmyowl population. Each analysis unit within the geographic range of the subspecies maintains a network of population groups that are connected both within and between analysis units. These population groups have the potential to recolonize areas where other population groups are lost to catastrophic events. All analysis units contribute to the total rangewide population, and population groups within each analysis unit provide population support for that analysis unit and adjacent portions of the range. If an analysis unit is self-sustaining, it provides redundancy across the range, and may provide emigrants to support adjacent analysis units. Research and monitoring have documented exchange VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 of individual cactus ferruginous pygmyowls among population groups within the Arizona, northern Sonora, and Texas analysis units, and between the Arizona and northern Sonora analysis units (Abbate et al. 2000, p. 30; Flesch and Steidl 2007, p. 37; Proudfoot et al. 2020, unpaginated; AGFD unpublished data). Habitat fragmentation and reduced vegetation health as a result of ongoing drought have resulted in the extirpation of population groups in Arizona and Texas, but redundancy was exhibited in the northern Sonora analysis unit when drought conditions eased and historically occupied areas were reoccupied (Flesch et al. 2017, p. 12). Despite existing habitat fragmentation, research and monitoring have documented that exchange of individual PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 pygmy-owls between population groups and between some analysis units is still occurring. Habitat types used by pygmyowls vary across the range, with some vegetation types being restricted to certain portions of the geographic range. It is important to maintain pygmy-owl populations throughout the range to provide redundancy to adjacent populations in similar habitat conditions. Due to the broad geographic distribution and network of populations groups that are connected within and between some analysis units throughout most of its range, the pygmy-owl has some ability to recolonize following catastrophic events and is considered to have adequate redundancy. BILLING CODE 4333–15–P E:\FR\FM\22DEP1.SGM 22DEP1 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules 72559 Gulf of Mexico Pacific Ocean Legend [S:SJ Arizona ~ Texas Northeastern Mexico N ~ Northern Sonora. A [ [ ] ] Western Mexico • ., lntema.tiona.l Boundary 0 25 50 Slate Boundary 100 150 200 ■ ■ Miles BILLING CODE 4333–15–C Future Scenarios In our SSA report, we defined viability as the ability of a species to sustain populations in the wild over time. To help address uncertainty associated with the degree and extent of VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 potential future stressors and their impacts on species’ needs, the concepts of resiliency, redundancy, and representation were assessed using three plausible future scenarios. We developed these scenarios by identifying information on the following PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 primary factors anticipated to affect the cactus ferruginous pygmy-owl in the future: Climate change, habitat loss and fragmentation, and conservation activity. The three scenarios capture the range of uncertainty in the changing landscape and how the pygmy-owl E:\FR\FM\22DEP1.SGM 22DEP1 EP22DE21.002</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS Figure 1. Cactus ferruginous pygmy-owl's range in the United States and Mexico, including the five analysis units used in the SSA. khammond on DSKJM1Z7X2PROD with PROPOSALS 72560 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules would respond to the changing conditions. We used the best available data and models to project out 30 years into the future (i.e., 2050). We chose this timeframe based on the subspecies’ life span and observed cycles in population abundance, as well as the time period where we could reasonably project certain land use changes and urbanization patterns relevant to the pygmy-owl and its habitat. The majority of the projections of urbanization and population growth within the geographic range of the pygmy-owl extend to 2050. Since urbanization and development are some of the primary drivers of habitat loss and fragmentation, we extended our analysis only as far as we could reasonably project these changes and the species response to those changes. Additionally, the average lifespan of a pygmy-owl is 3 to 5 years. Thus, over a 30-year timeframe, we would expect eight to ten generations of pygmy-owls to be produced which should be adequate to assess the effects of both threats and conservation actions. Because the primary avenue through which pygmy-owls move across the landscape is through the dispersal of juveniles, it can take multiple generations to provide adequate exchange of individuals to elicit detectable change at the population group and analysis unit scale. Including multiple generations of pygmy-owls also allows adequate time to account for lags in demographic factors resulting from changes in environmental conditions. Therefore, this number of generations is sufficient to assess the effective levels of resiliency, redundancy and representation. Monitoring of pygmyowl occupancy and productivity also indicates that, at least in Arizona and northern Sonora, 30 years was an adequate time period to document abundance cycles driven by climate conditions. Monitoring in both Arizona and northern Sonora from the mid1990s to present showed a period of decline in occupancy and productivity, primarily due to drought, followed by an increase in productivity and occupancy during years of better precipitation such that abundance and occupancy recovered to nearly the original levels (Flesch et al. 2017, p. 12; Service 2021, entire). For more information on the models and their projections, please see the SSA report (Service 2021, entire). Under Scenario 1 (continuation of current trends), we projected there would be no significant changes to the rate of habitat loss and fragmentation within the subspecies’ range. For this scenario, we considered that climate VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 change would track Representative Concentration Pathway (RCP) 4.5, which is one of four alternative trajectories for carbon dioxide emissions set forth by the International Panel on Climate Change. Specifically, RCP4.5 is an intermediate scenario where carbon dioxide emissions continue to increase through the mid-21st century, but then decline. This scenario would result in atmospheric carbon dioxide levels between 580 and 720 parts per million (ppm) between 2050 and 2100 and would represent an approximately 2.5 °C increase in global mean temperature relative to the period 1861–1880 (IPCC 2014, p. 9). We also considered that conservation efforts that are currently underway, such as captive rearing, would continue to be limited in their efficacy, due to limited resources and the continued efforts to identify appropriate and effective methodologies and protocols. Additionally, climate change will continue to affect the suitability of conditions at release sites for captive-reared pygmy-owls, potentially limiting the effectiveness of pygmy-owl releases. Under these conditions, we do not anticipate that any of the factors used to evaluate resiliency would improve and, in fact, vegetation intactness would be reduced due to continued development. Northeastern Mexico is projected to maintain its current level of high pygmy-owl abundance because significant changes to habitat conditions are not expected. Because of this, the northeastern Mexico analysis unit is expected to maintain a moderate level of population resiliency under this scenario. Conditions in the Arizona analysis unit would continue to decline due to continued habitat fragmentation and climate change, and resiliency would remain low. Resiliency in the remaining three analysis units, northern Sonora, western Mexico, and Texas, would decline due to continued loss of cactus ferruginous pygmy-owl habitat, reduced habitat intactness, and a reduction in cover and prey availability for cactus ferruginous pygmy-owls. Overall, current levels of population redundancy and representation would be maintained rangewide because all analysis units would remain occupied; however, representation within each analysis unit would likely decline at the population-group scale. Under Scenario 2 (worsening or increased effects scenario), we projected increased rates of habitat loss and fragmentation leading to a decline in pygmy-owl habitat conditions. For this scenario, we considered that climate change would track RCP8.5, which is the highest greenhouse gas emission PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 scenario. Under this scenario, atmospheric carbon dioxide concentrations are projected to exceed 1,000 ppm between 2050 and 2100 and would represent a 4.5 °C increase in global mean temperature (IPCC 2014, p. 9). We also considered that conservation efforts that are currently underway would not be effective or would not be implemented. Increased habitat loss and fragmentation would result in the greatest effect to overall resiliency through a reduction in abundance and occupancy of pygmy-owls. Increased development and urbanization would result in a permanent loss of habitat. Indirect effects to vegetation and prey availability as a result of climate change would also be expected. Due to increased habitat fragmentation, such as agricultural development, as well as a reduction in vegetation health from drought, resiliency in the western Mexico analysis unit is projected to decline. Under this scenario, climate change and increased habitat fragmentation from urbanization and agricultural development lead to the loss of some population groups within the Texas, Arizona, and northern Sonora analysis units. The resultant decline would decrease representation and redundancy within these analysis units. In particular, the Texas and Arizona analysis units would become more vulnerable to extirpation because of low pygmy-owl abundance and occupancy driven by reduced habitat quality as a result of drought and high levels of habitat fragmentation from ongoing urbanization and agricultural development. Genetic representation would be reduced through the loss of population groups or analysis units and the subsequent reduction of gene flow. Overall, there would be a reduction in resiliency, representation, and redundancy within most analysis units and the likelihood of maintaining longterm viability would be considerably reduced. Under Scenario 3 (improving or reduced effects scenario), we project that habitat loss and fragmentation would continue, but at a reduced rate. For this scenario, we considered that climate change would track RCP4.5, and conservation efforts that are currently underway would be effective. We did not include other planned conservation efforts in this scenario because we are not aware of any that would significantly influence the viability of the species. Despite effective conservation actions in portions of the range, the viability of pygmy-owl populations would continue to decline within all five analysis units E:\FR\FM\22DEP1.SGM 22DEP1 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS due to the ongoing effects of habitat loss, fragmentation, and climate change. Resiliency would remain low in the Arizona analysis unit and would decline in both the northern Sonora and western Mexico analysis units due to a reduction in habitat quality as a result of climate change. Pygmy-owl habitat fragmentation from urbanization, deforestation, and agricultural development are expected to continue under this scenario, though at a slower rate. Resiliency would remain in moderate condition for the Texas and northeastern Mexico analysis units. Although habitat conditions are expected to continue to decline due to drought and climate change, we do not expect a large decline in pygmy-owl occupancy and abundance in Texas and northeastern Mexico. Under this scenario, each analysis unit remains occupied and contributes to the representation and redundancy across the range of the pygmy-owl. However, within each analysis unit, threats continue, albeit at a reduced rate, and the resiliency of population groups would decline in three of the five analysis units. Thus, within analysis units, representation and redundancy is likely to decrease at the populationgroup scale. factors affecting its viability, here we will discuss regulatory mechanisms and conservation actions that potentially have or will influence the current and future viability of the cactus ferruginous pygmy-owl. Cumulative Effects We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the subspecies, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the subspecies. To assess the current and future condition of the subspecies, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors that may be influencing the subspecies, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire subspecies, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis. Federal Protections Although the pygmy-owl in Arizona is considered nonmigratory, it is included on the list of birds protected under the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703–712). The MBTA prohibits ‘‘take’’ of any migratory bird. However, unlike the Endangered Species Act, there are no provisions in the MBTA preventing habitat destruction unless direct mortality or destruction of an active nest occurs. Approximately 31 percent of the pygmyowl’s historical geographic range in the United States is federally owned, with Federally-owned lands making up approximately 40 percent of pygmy-owl habitat in Arizona. However, a substantial extent of the known currently occupied habitats occur on State Trust lands in Arizona and on private lands in Texas. Other Federal regulations and policies such as the Clean Water Act (33 U.S.C. 1251 et seq.), the military’s integrated natural resources management plans (INRMPs, such as the one for the Barry M. Goldwater Range) (Uken 2008, pers. comm.), and National Park Service policy provide varying levels of protection, but they have not been effective in protecting the pygmy-owl from further decline in Arizona. As a result of the implementation of the 2005 Real ID Act (Division B of Pub. L. 109– 13), the U.S. Department of Homeland Security (DHS) has waived application of the Act and other environmental laws in the construction of border infrastructure, including areas occupied by the pygmy-owl (73 FR 5272; January 29, 2008). As recently as 2020, DHS waived environmental compliance for the construction of border walls along the U.S.-Mexico border in Arizona and Texas (Fischer 2019, entire; USCBP 2020, entire). Consequently, pygmy-owl habitat has been lost and fragmented along most of the border area in Arizona and, to a lesser extent, Texas. Of particular concern is the potential for border infrastructure to reduce habitat connectivity into occupied pygmy-owl habitat in Mexico. Conservation Efforts and Regulatory Mechanisms Because we are considering the best available information and because the discussion above primarily addresses the viability of the cactus ferruginous pygmy-owl in relation to the threats and State Protections The pygmy-owl is included on the State of Arizona’s list of species of concern (AGFD 2021, p. 16). Arizona statute does not address the root causes leading to destruction or alteration of pygmy-owl habitat. The State of Texas VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 72561 lists the pygmy-owl as threatened (Texas Administrative Code, title 31, part 2, chapter 65, subchapter G, rule 65.175; TPWD 2009, p. 1). This designation allows permits to be issued for the taking, possession, propagation, transportation, sale, importation, or exportation of pygmy-owls if necessary to properly manage that species, but does not provide any habitat protections (Texas Park and Wildlife Code, chapter 67, section 67.0041). Protections in Mexico Within Mexico, the distribution of owls is large and includes multiple States. The administration of land use in Mexico depends on the national government, which implements Natural Protected Areas and other Federal programs, and also the policies of each State and even municipal governments (Enrı´quez 2021, pers. comm.). This system represents a wide range of management, conservation, and natural resource use approaches that affect pygmy-owl conservation, resulting in inconsistent policies and implementation of conservation activities. Similar to state laws in the United States, there are currently no laws or regulations in Mexico that specifically protect pygmy-owls and pygmy-owl habitat. As is the case throughout the geographic range of the pygmy-owl, with so many entities involved in how lands in Mexico are used and managed, it is complicated and, sometimes, unrealistic to implement widespread, consistent application of regulations that promote the conservation of pygmy-owls in Mexico. Conservation Efforts Cactus ferruginous pygmy-owl conservation activities have occurred sporadically over the past three decades in both the United States and in northern Sonora in Mexico. Initial conservation efforts developed effective and safe protocols for studying the cactus ferruginous pygmy-owl and on gathering basic life-history information. Efforts expanded in the late 1990s and early 2000s to include important pygmy-owl work in Arizona, Texas, and northern Sonora. For the past two decades, studies have been irregular and focused on monitoring of known territories. Surveying and Monitoring The Arizona Game and Fish Department (AGFD) initiated surveys to determine the extent of cactus ferruginous pygmy-owl occurrences in Arizona in 1992, when the cactus ferruginous pygmy-owl was first E:\FR\FM\22DEP1.SGM 22DEP1 72562 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS petitioned to be listed under the Act. Survey and monitoring work by a variety of entities continued through 2006, when the species was delisted. Prior to delisting, survey and monitoring efforts were focused in Pima and Pinal Counties to document the occupancy pattern of cactus ferruginous pygmy-owls in areas of land use changes, primarily urban development. After the pygmy-owl was delisted in 2006, a small number of monitoring surveys continued to be conducted by Service and AGFD biologists. In 2020, AGFD coordinated a comprehensive survey effort, with the help of numerous partners, to gather data on the current numbers and distribution of the cactus ferruginous pygmy-owl in Arizona to inform this listing decision. Specifically, this effort included surveys to document distribution, territory occupancy monitoring, and some nest searches to document reproduction. This latest effort provided data on current distribution of the pygmy-owl in Arizona and the number of occupied territories, as well as some information on the number of active nesting territories (AGFD 2020, pers. comm.). These data are incorporated into the SSA report. However, these efforts did not provide any information on productivity or survival at these sites. Nest Box Trials Because cactus ferruginous pygmyowls are secondary cavity nesters, the number of available cavities may influence the viability of cactus ferruginous pygmy-owls on the landscape (Proudfoot 1996, p. 68). Using nest boxes as a management tool may enhance the viability of cactus ferruginous pygmy-owls by increasing cavity availability and reducing predation. Nest boxes also enhance access to the owls during nesting and facilitate our ability to conduct research. Research in Texas demonstrated successful use of artificial nest structures by cactus ferruginous pygmyowls (Proudfoot et al. 1999, pp. 5–6). In response to concerns about cavity availability, two nest box trials were conducted in Arizona in 1998 and 2006. No cactus ferruginous pygmy-owls used the nest boxes in these studies, but low cavity availability was confirmed based on high use of the nest boxes by other species, including screech owls. No additional nest box studies have been undertaken in Arizona, and the nest box study in Texas is no longer active. Captive Breeding and Population Augmentation A pygmy-owl captive-breeding feasibility study was initiated by the VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 AGFD in partnership with the Wild at Heart raptor care facility in Cave Creek, Arizona, in 2006. Since then, Wild at Heart has been researching and testing protocols for a managed breeding program for cactus ferruginous pygmyowls. In 2017, the Phoenix Zoo became the second captive breeding site for pygmy-owls in Arizona and part of the managed breeding program when it entered into partnership with the Service and the AGFD. Both the AGFD and the Service oversee this program. The goal of the managed breeding program for the cactus ferruginous pygmy-owl is to develop appropriate protocols for the husbandry and breeding of captive pygmy-owls to provide individuals to augment existing population groups or establish new population groups in areas where suitable habitat exists in Arizona (AGFD 2015, entire). To date, these efforts have demonstrated: (a) Successful capture and transport of wild cactus ferruginous pygmy-owls; (b) safe, healthy, and stress-free captive facilities; (c) the development of appropriate care, feeding, and maintenance protocols; (d) successful breeding; and (e) appropriate care and development of young-of-theyear birds. Three pilot releases of captive-bred pygmy-owls have been implemented since the inception of this program. This effort establishes the first formal captive-breeding for the subspecies and provides the groundwork for evaluation of this strategy in wild cactus ferruginous pygmy-owl population augmentation. These pilot releases have not resulted in the establishment of new pygmy-owl territories or population groups, but have contributed valuable information to developing appropriate release strategies and protocols to improve the potential for conservation benefits to the pygmy-owl in the future. Conservation Planning When the pygmy-owl was listed previously, several municipalities located within current or historical pygmy-owl activity areas explored or implemented habitat conservation plans (HCPs) under the Act to address potential conflicts between development projects and requirements of the Act. These HCP plans included the Sonoran Desert Conservation Plan (Multi-Species Conservation Plan) developed by Pima County (Pima County 2016, entire), the Town of Marana HCP (Town of Marana 2009, entire), and the City of Tucson’s Avra Valley (City of Tucson 2019, entire) and Southlands HCPs (City of Tucson 2013, entire). Each of these four HCP efforts identified the cactus ferruginous pygmy- PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 owl as one of the covered species within their plans. However, most of these plans have yet to be completed: To date, only the Pima County HCP has been completed and is being implemented. Pima County is currently conducting ongoing surveys and monitoring of pygmy-owl territories on countymanaged lands and has set aside pygmyowl habitat as part of their conservation lands system in compliance with their HCP. The establishment of these conservation lands is an important contribution to pygmy-owl conservation in Pima County, but continuing efforts are needed to address other threats such as habitat impacts from climate change. Pima County’s efforts are expected to continue for the 30-year life of their permit (through 2046) and longer if the County renews the permit. Another ongoing conservation planning effort that has the potential to support pygmy-owl conservation in the Altar Valley of southern Arizona is the Altar Valley Watershed Management Plan. This plan being developed by the Altar Valley Conservation Alliance with numerous partners and participants builds upon existing efforts within the Altar Valley to restore and enhance the watershed. The plan will describe stewardship practices and identify a series of high-priority projects that maximize positive impacts on the land. While this planning effort has yet to be completed, projects related to watershed restoration have been implemented at three ranches in the Altar Valley. These projects have included one-rock dams and other structures to stabilize waterways, road grading to promote water harvesting, and enhancement of grasslands through invasive species control to promote infiltration and reduce runoff and sedimentation. These actions improve vegetation health through increased water infiltration and reduce loss of soil and vegetation due to erosion. Specific benefits occur to riparian vegetation along drainages enhancing pygmy-owl habitat conditions and connectivity. In Mexico, there are Federal, State, or municipal protected areas which comprise approximately 11 percent of the historical pygmy-owl range in Mexico. These areas can work well as conservation strategies for the cactus ferruginous pygmy-owl. There is now a new option for protected areas called ´ reas Voluntary Conservation Areas (A Destinadas Voluntariamente a la Conservacio´n; ADVA), which are areas identified for conservation. These ADVA could be a potential conservation strategy for the pygmy-owl in the future (Enrı´quez 2021, pers. comm.). E:\FR\FM\22DEP1.SGM 22DEP1 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules Determination of Cactus Ferruginous Pygmy-Owl’s Status Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an ‘‘endangered species’’ or a ‘‘threatened species.’’ The Act defines an ‘‘endangered species’’ as a species in danger of extinction throughout all or a significant portion of its range, and a ‘‘threatened species’’ as a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of an ‘‘endangered species’’ or a ‘‘threatened species’’ because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. khammond on DSKJM1Z7X2PROD with PROPOSALS Status Throughout All of Its Range We examined the following threats to the cactus ferruginous pygmy-owl: Climate change and climate condition (Factor E), habitat loss and fragmentation (Factor A), human activities and disturbance (Factors B and E), human-caused mortality (Factors B and E), disease and predation (Factor C), and small population size (Factor E), and we determined that the primary threats to the subspecies are climate change and climate condition, and habitat loss and fragmentation. Existing regulatory mechanisms (Factor D) and conservation efforts do not address the threats to the cactus ferruginous pygmyowl to the extent that listing the subspecies is not warranted. Population resiliency is highly variable across the range of the pygmyowl. Overall, three analysis units maintain a moderate level of resiliency, with western Mexico maintaining a high level of resiliency and Arizona with a low level of resiliency. Therefore, the majority of the analysis units we examined maintain some ability to withstand stochastic events. Additionally, the western Mexico and northeast Mexico analysis units are estimated to support tens of thousands of pygmy-owls. Due to the broad geographic distribution and network of population groups that are connected within and between some analysis units throughout most of its range, the pygmy- VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 owl has some ability to recolonize following catastrophic events and is considered to have adequate redundancy. Additionally, the cactus ferruginous pygmy-owl currently has high genetic and ecological variability across the range. This ecological diversity provides the subspecies with sufficient representation and may allow the pygmy-owl to adapt to, and survive, future environmental change. After evaluating threats to the subspecies and assessing the cumulative effect of the threats under the Act’s section 4(a)(1) factors, we conclude that the risk factors acting on the cactus ferruginous pygmy-owl and its habitat, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate that the subspecies is in danger of extinction now (an endangered species) throughout all of its range. Despite current stressors, the subspecies currently maintains adequate resiliency, redundancy, and representation across the range such that the subspecies is currently able to withstand stochastic and catastrophic events and maintain adequate genetic and ecological variation throughout its range. However, our analysis of the cactus ferruginous pygmy-owl’s future conditions shows that the threats to the subspecies are likely to continue into the future, resulting in continued loss and fragmentation of habitat putting the species at risk of extinction within the foreseeable future. Under all future scenarios, we project a continued reduction in species viability throughout the range of the subspecies due to climate change, habitat loss, and habitat fragmentation. In 30 years, even under our most optimistic scenario, the reduced effects scenario, there will be no analysis units in high condition. This represents a decrease from current conditions with one analysis unit declining from high to moderate condition, and one analysis unit declining from moderate to low condition. Additionally, despite maintaining their current condition categories over the next 30 years, habitat and demographic conditions within the other three analysis units continue to decline. Over the next 30 years, many of the analysis units will become increasingly vulnerable to extirpation through the degradation of habitat conditions. We anticipate that urbanization and development will continue under all future scenarios and in all analysis units. Invasive species will continue to spread into pygmy-owl habitat in most analysis units and deforestation and wood harvesting will continue in all three analysis units in PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 72563 Mexico. Continued loss and degradation of pygmy-owl habitat will reduce overall species resiliency, impeding the ability of the subspecies to withstand stochastic events and increasing the risk of extirpation following such events. The loss of population groups will lead to a reduction in representation, reducing the subspecies’ ability to adapt over time to changes in the environment, such as climate changes. This expected reduction in both the number and distribution of sufficiently resilient population groups will reduce redundancy and impede the ability of the subspecies to recolonize following catastrophic disturbance. Thus, after assessing the best available information, we conclude that the cactus ferruginous pygmy-owl is not currently in danger of extinction but is likely to become in danger of extinction within the foreseeable future throughout all of its range. Status Throughout a Significant Portion of Its Range Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. The court in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological Diversity), vacated the aspect of the Final Policy on Interpretation of the Phrase ‘‘Significant Portion of Its Range’’ in the Endangered Species Act’s Definitions of ‘‘Endangered Species’’ and ‘‘Threatened Species’’ (79 FR 37578; July 1, 2014) that provided that the Service does not undertake an analysis of significant portions of a species’ range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species’ range for which both (1) the portion is significant; and (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the ‘‘significance’’ question or the ‘‘status’’ question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species’ range. Following the court’s holding in Center for Biological Diversity, we now consider whether there are any significant portions of the species’ range where the species is in danger of E:\FR\FM\22DEP1.SGM 22DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 72564 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules extinction now (i.e., endangered). In undertaking this analysis for cactus ferruginous pygmy-owl, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species is endangered. The statutory difference between an endangered species and a threatened species is the timeframe in which the species becomes in danger of extinction; an endangered species is in danger of extinction now while a threatened species is not in danger of extinction now but is likely to become so in the foreseeable future. Thus, we reviewed the best scientific and commercial data available regarding the time horizon for the threats that are driving the cactus ferruginous pygmy-owl to warrant listing as a threatened species throughout all of its range. We considered whether the threats are geographically concentrated in any portion of the species’ range in a way that would accelerate the time horizon for the species’ exposure or response to the threats. We examined the following threats: Climate change and climate condition (Factor E) and habitat loss and fragmentation (Factor A), including cumulative effects. We found a concentration of threats, i.e., the impacts of climate change, urbanization, and invasive species, in the Sonoran Desert Ecoregion, which extends from Arizona south into Sonora, Mexico. Climate change impacts to the pygmy-owl in the Sonoran Desert Ecoregion are likely to include loss of vegetation cover, reduced prey availability, increased predation, reduced nest site availability, and vegetation community change. For example, models predict that the distribution of suitable habitat for saguaros, the primary pygmy-owl nesting substrate within the Sonoran Desert Ecoregion, will substantially decrease over the next 50 years under a moderate climate change scenario (Weiss and Overpeck 2005, p. 2074; Thomas et al. 2012, p. 43). Climate models project that, by the end of the 21st century, the Sonoran Desert will experience an increase in drought conditions with a transition to a drier and more arid climate (Seager et al. 2007, p. 9; Cook et al. 2015, p. 6; Pascale et al. 2017, p. 806; Williams et al. 2020, p. 317). Given that this portion of the pygmy-owl’s overall range is already characterized by arid and hot conditions and is in the midst of an extended drought, the effects from climate change represent a higher concentration of effects than in other VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 portions of the pygmy-owl’s range, which generally are characterized by higher precipitation and lower temperatures resulting in a baseline of higher greenness and vegetation health. In general, annual precipitation in the Sonoran Desert is positively correlated to pygmy-owl productivity (Flesch et al. 2015, p. 26). Timing and quantity of precipitation affects lizard and rodent abundance in ways that suggest rainfall is an important driver of prey population and community dynamics. In general, cool-season rainfall is positively correlated with rodent populations and warm-season rainfall is positively correlated with lizard populations. Projected increases in variability and decreases in quantity of precipitation will likely lead to a decrease in prey abundance for the pygmy-owl (Jones 1981, p. 111; Flesch 2008, p. 5; Flesch et al. 2015, p. 26). Urban expansion and human population growth trends are expected to continue in the Sonoran Desert Ecoregion. The Maricopa-Pima-Pinal County areas of Arizona are expected to see the population grow by as much as 132 percent between 2005 and 2050, creating rural-urban edge effects across thousands of acres of pygmy-owl habitat (AECOM 2011, p. 13). The population along the U.S.-Mexico border region from Texas to California is expected to double by 2025 (HHS 2017, p. 1). In Arizona, the border counties are projected to increase by 60 percent to 2.5 million by 2050 (OEO 2021, unpaginated). In Sonora the population is projected to reach 3.5 million by 2030 (CONAPO 2014, p. 25). Development is focused along the border and this area of northern Mexico has faster population growth than other Mexican states (Pineiro 2001, pp. 1–2). This development focuses potential barriers or impediments to pygmy-owl movements in a region that is important for demographic support (immigration events and gene flow) of pygmy-owl population groups, including movements such as dispersal. If urban expansion and development continues as expected, it will encompass a substantial portion of the current distribution of the pygmy-owl in the Sonoran Desert Ecoregion. The invasion of nonnative vegetation, particularly nonnative grasses, has altered the natural fire regime over the Sonoran Desert Ecoregion portion of the pygmy-owl’s range. Buffelgrass is prevalent and increasing throughout much of this portion of the pygmy-owl’s range, leading to increased fire frequency in a system that is not adapted to fire (Schmid and Rogers 1988, p. 442; D’Antonio and Vitousek PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 1992, p. 73; Burquez and Quintana 1994, p. 23; Halverson and Guertin 2003, p. 13; Van Devender and Dimmit 2006, p. 5). While a single fire in an area may or may not produce long-term reductions in plant cover or biomass, repeated wildfires in a given area are capable of ecosystem type-conversion from native desertscrub to nonnative annual grassland. These repeated fires may render the area unsuitable for pygmy-owls and other native wildlife due to the loss of trees and columnar cacti, and reduced diversity of cover and prey species (Brooks and Esque 2002, p. 336). Despite the current concentration of threats and their increasing effects to pygmy-owls and pygmy-owl habitat, the Sonoran Desert Ecoregion currently supports an abundance of pygmy-owls in the high hundreds and a moderate amount of intact, suitable vegetation. Consequently, these factors are currently maintaining an overall moderate level of resiliency in this portion of the range. Additionally, there is currently habitat connectivity with evidence of pygmy-owl movement among population groups, providing redundancy throughout the Sonoran Desert Ecoregion. Representation is also currently being maintained through pygmy-owl occupancy of a variety of vegetation types throughout the Sonoran Desert Ecoregion with gene flow among these population groups. However, under all three future scenarios, this portion of the range is expected to become less resilient due to continued habitat fragmentation and the effects of climate change on habitat conditions, resulting in a reduction of pygmy-owl abundance and occupancy. These deteriorating conditions are also anticipated to result in declines in redundancy and representation through the loss of population groups within the Ecoregion. Although some threats to the cactus ferruginous pygmy-owl are concentrated in the Sonoran Desert Ecoregion, the best scientific and commercial data available does not indicate that the concentration of threats, or the species’ responses to the concentration of threats, are likely to accelerate the time horizon in which the species becomes in danger of extinction in that portion of its range. As a result, the cactus ferruginous pygmy-owl is not in danger of extinction now in the Sonoran Desert Ecoregion. However, we do find that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This finding is consistent with the courts’ holdings in Desert Survivors v. Department of the Interior, No. 16–cv–01165–JCS, 2018 E:\FR\FM\22DEP1.SGM 22DEP1 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017). khammond on DSKJM1Z7X2PROD with PROPOSALS Determination of Status Our review of the best available scientific and commercial information indicates that the cactus ferruginous pygmy-owl meets the Act’s definition of a threatened species. Therefore, we propose to list the cactus ferruginous pygmy-owl as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act. Available Conservation Measures Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below. The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species’ decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, selfsustaining, and functioning components of their ecosystems. Recovery planning consists of preparing draft and final recovery plans, beginning with the development of a recovery outline and making it available to the public within 30 days of a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (‘‘downlisting’’) or removal from protected status (‘‘delisting’’) and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. If we adopt this rule as proposed, when completed, the recovery outline, draft recovery plan, and the final recovery plan for the cactus ferruginous pygmy-owl will be available on our website (http://www.fws.gov/ endangered), or from our Arizona Ecological Services Office (see FOR FURTHER INFORMATION CONTACT). Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Arizona and Texas would be eligible for Federal funds to implement management actions that promote the protection or recovery of the cactus ferruginous pygmy-owl. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants. Section 8(a) of the Act (16 U.S.C. 1537(a)) authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered or threatened species in foreign countries. Sections 8(b) and 8(c) of the Act (16 U.S.C. 1537(b) and (c)) authorize the Secretary to encourage PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 72565 conservation programs for foreign listed species, and to provide assistance for such programs, in the form of personnel and the training of personnel. Although the cactus ferruginous pygmy-owl is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this subspecies. Additionally, we invite you to submit any new information on this subspecies whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT). Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service. Federal agency actions within the species’ habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered, or on private lands seeking funding, by Federal agencies, which may include, but are not limited to, the Department of the Interior’s U.S. Fish and Wildlife Service, Bureau of Land Management, and National Park Service (Organ Pipe Cactus National Monument and Ironwood Forest National Monument); the Department of Defense’s (Barry M. Goldwater Air Force Range) and U.S. Army Corps of Engineers (for issuance of section 404 Clean Water permits); the U.S. Department of Agriculture’s U.S. Forest Service, Natural Resources Conservation Service, and Farm Service Agency; and construction and maintenance of roads or highways by the Federal Highway Administration. It is our policy, as published in the Federal Register on July 1, 1994 (59 FR E:\FR\FM\22DEP1.SGM 22DEP1 72566 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. The discussion below regarding protective regulations under section 4(d) of the Act complies with our policy. khammond on DSKJM1Z7X2PROD with PROPOSALS II. Proposed Rule Issued Under Section 4(d) of the Act Background Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as he [or she] deems necessary and advisable to provide for the conservation of species listed as threatened. The U.S. Supreme Court has noted that statutory language like ‘‘necessary and advisable’’ demonstrates a large degree of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4(d) of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants. Thus, the combination of the two sentences of section 4(d) provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion to the Service when adopting the prohibitions under section 9. The courts have recognized the extent of the Secretary’s discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibited take of threatened wildlife, or include a limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces (see State of VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, ‘‘once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him [or her] with regard to the permitted activities for those species. He [or she] may, for example, permit taking, but not importation of such species, or he [or she] may choose to forbid both taking and importation but allow the transportation of such species’’ (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973). Exercising this authority under section 4(d), we have developed a proposed rule that is designed to address the cactus ferruginous pygmyowl’s conservation needs. Although the statute does not require us to make a ‘‘necessary and advisable’’ finding with respect to the adoption of specific prohibitions under section 9, we find that this proposed rule as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the cactus ferruginous pygmy-owl. Because of the large geographic range of the cactus ferruginous pygmy-owl, different portions of the geographic range are affected by different types and extent of threats and stressors. Therefore, it is feasible that exceptions under this proposed 4(d) rule may be different for the different analysis units described in the SSA report. We encourage public comment providing support for the potential application of different exceptions in different portions of the cactus ferruginous pygmy-owl’s geographic range. As discussed above under Summary of Biological Status and Threats, we have concluded that the cactus ferruginous pygmy-owl is likely to become in danger of extinction within the foreseeable future primarily due to a loss of vegetation cover, reduced prey availability, increased predation, reduced nest site availability, and vegetation community change resulting from ongoing climate change, particularly increases in drought conditions, as well as due to habitat loss and fragmentation stemming from urbanization, agriculture, deforestation, and invasive species. This proposed 4(d) rule identifies the prohibitions needed to conserve the cactus ferruginous pygmy-owl. We considered the range of potential activities that may potentially affect the cactus ferruginous pygmy-owl’s status and viability. There is a very wide range of such potential activities including, but not limited to, commercial and PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 residential development, infrastructure development and maintenance, utility work, activities related to border infrastructure and enforcement, grazing and ranching activities, activities conducted under Clean Water Act permits, mining, flood control activities, recreation, and activities conducted under land management plans. There is also a wide range of factors that affect the implementation of each of these activity types resulting in unique circumstances that we considered in developing proposed 4(d) rule exceptions. Ultimately, we find that it is appropriate to extend the standard section 9 prohibitions for endangered species to the cactus ferruginous pygmyowl in order to conserve the subspecies. However, while developing this proposed 4(d) rule, the Service considered exceptions to the standard section 9 prohibitions for endangered species that would facilitate essential conservation actions needed for the cactus ferruginous pygmy-owl. We consider essential conservation efforts to include facilitating surveys and monitoring of cactus ferruginous pygmy-owl population groups; enabling research to better understand cactus ferruginous pygmy-owl’s needs and stressors (including the use of nest boxes and captive breeding); conducting education and outreach activities to increase public awareness and support of cactus ferruginous pygmy-owl conservation and recovery; and encouraging management of the landscape in ways that meet both land management considerations and the conservation needs of the cactus ferruginous pygmy-owl. Such land management considerations potentially include restoration and habitat improvement actions (including nonnative, invasive species management), watershed improvements, and grazing management that is compatible with cactus ferruginous pygmy-owl habitat enhancement and restoration, provided pygmy-owl habitat enhancement and restoration is identified as a significant outcome of the management actions and such actions are coordinated with the Service. For the purposes of this proposed rule and our SSA analysis, we consider surveying and monitoring activities necessary to understand and implement cactus ferruginous pygmy-owl conservation and recovery. We currently lack data on the current numbers, density, and distribution of the cactus ferruginous pygmy-owl across its defined geographic range in both the United States and Mexico. We also lack comprehensive data on the productivity, E:\FR\FM\22DEP1.SGM 22DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules survival, mortality, and other naturalhistory characteristics of the cactus ferruginous pygmy-owl. Such data have been gathered historically, but only in local areas and primarily only in the United States and northern Sonora. Where we have data on occurrence, numbers, density, and natural-history variables, they allow us to better understand the status of the cactus ferruginous pygmy-owl and what actions are necessary to conserve population groups and enhance status and viability. Surveying and monitoring activities can result in short-term effects to cactus ferruginous pygmy-owls and, potentially, in the take of individuals and nest sites. We want to encourage more comprehensive and widespread surveying and monitoring activities across the geographic range of the cactus ferruginous pygmy-owl, and thus, we are considering providing an exception for this action in the 4(d) rule. This exception could occur by recognizing State authority to issue a permit to conduct call broadcast surveys and monitoring and nest monitoring for listed species. This state permitting would ensure oversight for surveyor and monitor qualifications, as well as data submission to the State agencies. Thus, an exception to the prohibitions of take could be granted under the 4(d) rule if the surveyors and monitors possessed a valid state permit, if required. If a State permit is not required to conduct call broadcast surveys and monitoring and nest monitoring, such activities could require a Federal 10(a)(1)(A) permit. We are considering this approach to recognize State authorities and streamline permitting processes. This exception would not cover any activities that involve the handling of pygmyowls. We encourage public and agency comments related to our consideration of using the State permitting process in the 4(d) rule as the basis of an exception to the prohibitions on take related to pygmy-owl survey and monitoring activities. Similar to surveying and monitoring, research related to all aspects of cactus ferruginous pygmy-owl natural history are needed to fill in information gaps and improve our understanding of the needs and stressors of the cactus ferruginous pygmy-owl to be able to identify and implement effective conservation and recovery actions. This includes research into the effectiveness of a managed breeding program for the pygmy-owl. Because research that involves the capture, handling, marking, human care, tissue sample collection, etc., of pygmyowls may result in the direct take of cactus ferruginous pygmy-owls, it is VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 necessary to require those implementing these actions to have the appropriate background, expertise, and equipment and materials to implement these activities. We find that these activities are best administered through our section 10 permitting process (under the Act’s section 10(a)(1)(A)). This permitting process allows us to assess the appropriateness of the proposed projects and activities with regard to promoting the conservation of the cactus ferruginous pygmy-owl; ensure the competency of those conducting the activities; reduce the potential for redundancy of effort and overlapping effects to cactus ferruginous pygmyowls; and facilitate the opportunity to receive, analyze, and incorporate the most current information into conservation and recovery actions. Restoration and habitat improvement actions are those actions that convert areas that are otherwise not habitat for the cactus ferruginous pygmy-owl to areas that are cactus ferruginous pygmyowl habitat or actions that improve areas of lesser quality cactus ferruginous pygmy-owl habitat to areas of higher quality cactus ferruginous pygmy-owl habitat. These actions are essential for the subspecies, as this is the only way to offset habitat loss and fragmentation. For the cactus ferruginous pygmy-owl, the primary restoration or habitat improvement actions include, but are not limited to, placement of nest boxes, restoration of native species, establishment or protection of nesting substrates (large trees and columnar cacti), invasive species control, riparian enhancement, water developments, watershed improvements, improved habitat connectivity, and fire management. Because we want to encourage the implementation of cactus ferruginous pygmy-owl habitat restoration and enhancement, we are proposing in the 4(d) rule an exemption to the take of cactus ferruginous pygmyowls that may result from such activities, as described below. In order to receive this exemption, the habitat restoration and improvement projects must be coordinated with, and receive approval from, the Service prior to work commencing. Education and outreach activities allow cactus ferruginous pygmy-owl conservation partners to present information to various segments of the public related to ongoing conservation and management activities and programs. Public awareness of the cactus ferruginous pygmy-owl’s biology, ecology, and threats helps foster support for recovery program activities across the geographic range of the cactus ferruginous pygmy-owl. Increasing the PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 72567 prevailing understanding of how recovery activities for the cactus ferruginous pygmy-owl improve the health, function, and quality of the environments where they are found, as well as the human communities located in proximity to occupied cactus ferruginous pygmy-owl habitat, will strengthen support for continued conservation of the pygmy-owl and for the habitats upon which it depends. Education and outreach will also serve to counteract incorrect narratives that conservation of the cactus ferruginous pygmy-owl is responsible for preventing activities and development that positively affect the area’s social and economic well-being. Allowing the public to personally see pygmy-owls through the use of educational animals can result in take of individuals. The potential for this type of take is already addressed through the issuance of a Migratory Bird Treaty Act (MBTA) permit and we are proposing to streamline permitting by acknowledging the existing MBTA process in this proposed 4(d) rule. Such education and outreach programs can increase public awareness, engagement, and support for cactus ferruginous pygmy-owl conservation and recovery. Such benefits outweigh the effects to individual pygmy-owls. Finally, we considered the need for compatibly managed grazing activities that result in the vegetation structure and composition needed to support the cactus ferruginous pygmy-owl. The habitat needs for the cactus ferruginous pygmy-owl vary across the subspecies’ geographic range, and grazing can affect these habitats in different ways. It is important that grazing is managed at a given site to account for a variety of factors specific to the local ecological site, including past management, soils, precipitation, and other factors, to ensure that the resulting vegetative composition and structure will support the cactus ferruginous pygmy-owl. Grazing management that has altered the vegetation community to a point where the composition and structure are no longer suitable for cactus ferruginous pygmy-owls can contribute to habitat loss and fragmentation within the landscape, even though these areas may remain as open space on the landscape. Livestock grazing, however, is not inherently detrimental to the cactus ferruginous pygmy-owl, provided that grazing management results in a plant community with species and structural diversity suitable for the cactus ferruginous pygmy-owl. When livestock grazing is managed compatibly, it can be an invaluable tool for managing healthy E:\FR\FM\22DEP1.SGM 22DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 72568 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules vegetation communities benefiting the cactus ferruginous pygmy-owl. While developing this proposed 4(d) rule, we determined that grazing management has to occur on the local level, and thus broad determinations within this proposed 4(d) rule would not be beneficial to the species or local land managers. While the 4(d) rule was one approach considered to promote conservation of the cactus ferruginous pygmy-owl by encouraging management of vegetation communities in ways that support both long-term viability of livestock enterprises and concurrent conservation of pygmy-owls, we determined that other mechanisms under our authorities would be more appropriate to support this action. Besides a 4(d) rule, other mechanisms supporting conservation opportunities exist in other portions of the Act and our policies, including under the Act’s section 7(a) (Federal Agency Actions and Consultations), the Act’s section 10(a) (Permits), and our conservation banking program. We recognize the value of compatibly managed grazing for the cactus ferruginous pygmy-owl, and we look forward to working with our partners and local land managers to ensure there are viable conservation options that provide regulatory coverage for interested landowners. We encourage public comments related to the issue of properly managed grazing and the appropriate best approach for addressing livestock grazing and management within the range of tools available. As indicated above, the provisions of this proposed 4(d) rule are one of many tools that we would use to promote the conservation of the cactus ferruginous pygmy-owl. This proposed 4(d) rule would apply only if and when we make final the listing of the cactus ferruginous pygmy-owl as a threatened species. Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat—and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation. This obligation does not change in any way for a threatened species with a species-specific 4(d) rule. Actions that result in a determination by a Federal agency of ‘‘not likely to adversely affect’’ continue to require the Service’s written concurrence and actions that are ‘‘likely to adversely affect’’ a species require formal consultation and the formulation of a biological opinion. Provisions of the Proposed 4(d) Rule This proposed 4(d) rule would provide for the conservation of the cactus ferruginous pygmy-owl by prohibiting the following activities, except as otherwise authorized or permitted: Importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce. In addition, anyone taking, attempting to take, or otherwise possessing a cactus ferruginous pygmyowl, or parts thereof, in violation of section 9 of the Act would be subject to a penalty under section 11 of the Act, with certain exceptions (discussed below). Under the Act, ‘‘take’’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Regulating take that occurs incidental to otherwise lawful activities (section 7 consultations with Federal action agencies) would help to conserve and recover the cactus ferruginous pygmyowl by evaluating the potential of various activities to adversely affect or PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 otherwise decrease the viability of the cactus ferruginous pygmy-owl. As mentioned above, a wide variety of lawful activities and projects have the potential to negatively affect the viability of this subspecies: Disturbance, loss and fragmentation of habitat, reduction of prey species, loss of nesting substrates, introduction of nonnative predators and competitors, and other similar effects. By regulating these types of activities and projects, we can conserve the subspecies’ remaining habitat and populations; slow the rate of habitat loss and fragmentation; slow the subspecies’ rate of decline; and decrease synergistic, negative effects from other ongoing future threats. Conversely, allowing incidental and intentional take for certain activities allow us to promote pygmy-owl conservation and improve pygmy-owl habitat. For example, habitat restoration and improvement works to offset losses and fragmentation of habitat from factors related to climate change and human land uses on the landscape. Education and outreach efforts help to increase public awareness and understanding and to garner support for conservation and recovery of the cactus ferruginous pygmy-owl. Thus, benefits to the cactus ferruginous pygmy-owl are derived both from regulating certain sources of potential take and by excepting certain take for activities where benefits outweigh the short-term effects of the take on cactus ferruginous pygmy-owl populations. As discussed above under Summary of Biological Status and Threats, the loss of vegetation cover, reduced prey availability, increased predation, reduced nest site availability, and vegetation community change resulting from ongoing climate change, particularly increases in drought conditions, and habitat loss and fragmentation stemming from urbanization, agriculture, deforestation, and invasive species are affecting the status of the cactus ferruginous pygmyowl. We have identified various activities that have the potential to help us understand and offset the activities affecting the cactus ferruginous pygmyowl’s viability. Therefore, a range of conservation activities, including education and outreach related to cactus ferruginous pygmy-owl recovery, and management of the landscape in ways that meet both land management considerations and the conservation needs of the cactus ferruginous pygmyowl, have the potential to benefit the cactus ferruginous pygmy-owl. Such land management considerations potentially include restoration and habitat improvement actions, watershed E:\FR\FM\22DEP1.SGM 22DEP1 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS improvements, and grazing management that is compatible with cactus ferruginous pygmy-owl habitat enhancement and restoration, provided such habitat enhancement and restoration is identified as a significant outcome of the management actions and such actions are coordinated with the Service and appropriate State and Tribal agencies and landowners. Accordingly, this proposed 4(d) rule addresses activities to facilitate conservation and management of the cactus ferruginous pygmy-owl where the activities currently occur and may occur in the future by excepting the activities from the Act’s take prohibition under certain specific conditions. These activities are intended to increase management flexibility and encourage support for conservation of, habitat restoration for, and habitat improvement for the cactus ferruginous pygmy-owl. Under this proposed 4(d) rule, most take would be prohibited. Exceptions to the prohibitions on take would include some of the general exceptions allowed for take of endangered wildlife as set forth is 50 CFR 17.21 (see the rule portion of this document) and certain other specific activities that we propose for exception, as described below. The excepted activities would require approval by the Service or would have to be conducted under an existing, appropriate, valid permit issued under part 21 of title 50 of the Code of Federal Regulations, which governs species protected under the MBTA, as described below. These activities should be conducted in coordination with appropriate land management agencies; State, Tribal, and local agencies; and private landowners, as appropriate, and in support of any existing or future designated recovery programs guiding the conservation and recovery of the cactus ferruginous pygmy-owl. The following activities would be excepted from the take prohibitions for the pygmy-owl (i.e., take would be allowed for these activities) under this proposed 4(d) rule. Education and Outreach Education and outreach are a vital part of cactus ferruginous pygmy-owl recovery and progress towards achieving and maintaining viable populations of cactus ferruginous pygmy-owls. This proposed 4(d) rule excepts from take prohibitions those cactus ferruginous pygmy-owl education and outreach activities undertaken for the purposes of increasing public awareness of cactus ferruginous pygmy-owl biology, ecology, or recovery needs, as well as of the positive effects of having pygmy- VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 owls as a viable part of the local ecosystems on the local society, economy, and quality of life for communities. Such educational activities may include use of educational captive-reared cactus ferruginous pygmy-owls, pygmy-owl skins, or parts of pygmy-owls. These activities raptors are typically covered by a permit issued under 50 CFR part 21, which governs species protected under the MBTA. To remove redundant permitting, this proposed 4(d) rule will cover incidental take resulting from educational and outreach activities, provided the researcher already holds an appropriate and valid MBTA permit issued under 50 CFR part 21. These activities can increase public awareness, engagement, and support for cactus ferruginous pygmy-owl conservation and recovery. Education and outreach activities must be coordinated with the Service prior to commencing work. Coordination can occur in person, by phone, or through written communications. Education and outreach activities covered by this proposed 4(d) rule would have to be consistent with an existing designated recovery program, such as a final recovery plan, and benefit cactus ferruginous pygmy-owl conservation through increased public awareness and engagement, which supports cactus ferruginous pygmy-owl recovery. Education and outreach qualifying under this exception would not require a permit issued under section 10(a) of the Act. Habitat Restoration and Enhancement Incidental take resulting from habitat restoration or enhancement projects that improve the viability of cactus ferruginous pygmy-owl populations and population groups, and have been coordinated and approved by the Service, is excepted from the take prohibitions under this proposed 4(d) rule. Habitat restoration and enhancement projects are needed to increase nest site (cavity) availability; improve habitat connectivity among cactus ferruginous pygmy-owl population groups; increase prey availability; improve vegetation structure and health; and decrease nonnative species, watershed degradation and erosion, and habitat loss or reduction due to extreme weather events and wildfire. This proposed 4(d) rule excepts from take prohibitions those habitat restoration or enhancement activities with the primary or secondary purpose of improving cactus ferruginous pygmyowl habitat conditions across the PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 72569 subspecies’ geographical range. Specific habitat restoration or enhancement actions could include nest box installation; establishment or protection of nesting substrates (large trees or columnar cacti) to increase the availability of nest cavities; restoration or enhancement of native vegetation structure and species; control or eradication of invasive, nonnative species; riparian enhancement or restoration; water developments; watershed improvements; improved habitat connectivity; and fire management. Prescribed fire within Sonoran Desert vegetation communities is not excepted in the proposed 4(d) rule. Fire can be an effective tool in maintaining ecosystem health, which is beneficial to the cactus ferruginous pygmy-owl, but Sonoran Desert vegetation communities are not fire-adapted, and use of fire in these vegetation communities must be carefully implemented or important pygmy-owl habitat elements can be lost or altered. Therefore, because of the risks associated with the loss or alteration of pygmy-owl habitat, the use of fire in Sonoran Desert vegetation communities is not excepted from the take prohibitions under this proposed 4(d) rule. Woody vegetation communities provide the most important pygmy-owl habitat factors, particularly woodland tree canopy cover. Pygmy-owl habitat is not typically enhanced by actions that would remove woodland tree cover. Such actions would normally reduce vegetation cover diversity, pygmy-owl prey diversity, and important predator avoidance and thermoregulatory cover for the pygmy-owl. Therefore, any action that would result in more than a minimal reduction or removal of tree cover (as determined during coordination with the Service) is not included under the habitat restoration or enhancement take exception in the proposed 4(d) rule. Actions that promote the use of, or encourage the growth of, nonnative vegetation species are not exempted in the proposed 4(d) rule. Nonnative vegetation species can outcompete and replace native species that provide important habitat factors for the pygmyowl. This outcome is particularly true when nonnative species form monocultures, resulting in low diversity and dense ground cover that alters natural fire regimes and reduces pygmyowl prey diversity and availability. In order to fall under the activities included under the habitat restoration or enhancement take exception in the proposed 4(d) rule, those persons implementing cactus ferruginous E:\FR\FM\22DEP1.SGM 22DEP1 72570 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS pygmy-owl habitat enhancement and restoration activities need written approval from the Service. Prior to approving proposed activities, the Service will coordinate with the appropriate entities (land management agencies, Tribal entities, private landowners, etc.). For all forms of allowable take in the proposed 4(d) rule, reasonable care will be practiced to minimize the impacts from the actions. Reasonable care means limiting the impacts to cactus ferruginous pygmy-owl individuals and populations by complying with all applicable Federal, State, and Tribal regulations for the activity in question; using methods and techniques that result in the least harm, injury, or death, as feasible; undertaking activities at the least impactful times (e.g., conducting activities that might impact nesting cactus ferruginous pygmy-owls or nesting habitat only after nesting is concluded for the year) and locations, as feasible; procuring and implementing technical assistance from a qualified biologist on projects regarding all methods prior to the implementation of those methods; minimizing the number of individuals disturbed in the existing wild population; implementing best management practices to ensure no disease or parasites are introduced or spread in pygmy-owl populations, including the proper use of quarantine and health evaluations; and preserving the genetic diversity of wild populations. Permitting and Other Regulations To Cover Take We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act. We recognize the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 authorities and their close working relationships with local governments and landowners, are in a unique position to assist the Service in implementing all aspects of the Act. In this regard, section 6 of the Act provides that the Service shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, would be able to conduct activities designed to conserve cactus ferruginous pygmy-owl that may result in otherwise prohibited take without additional authorization. As described above, take can result by direct and indirect impacts, intentionally or incidentally. Section 7 of the Act regulates incidental take that occurs incidental to otherwise lawful activities, which have a nexus to a Federal action agency. Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. The Section 7 process helps to conserve and recover the cactus ferruginous pygmy-owl by evaluating the potential of various activities to adversely affect the cactus ferruginous pygmy-owl. Section 7 consultations ensure that Federal actions do not jeopardize the continued existence of the pygmy-owl and that proposed project activities include appropriate conservation measures or that reasonable and prudent measures are included to minimize the impacts of incidental take that is anticipated to result from implementing a project. Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the cactus ferruginous pygmy-owl. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between Federal agencies and the Service, where appropriate. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that the Service PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 could provide or use, respectively, to streamline the implementation of this proposed 4(d) rule (see Information Requested, above). III. Critical Habitat Background Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features. (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species’ occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species’ life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals). Additionally, our regulations at 50 CFR 424.02 define the word ‘‘habitat,’’ for the purposes of designating critical habitat only, as the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies E:\FR\FM\22DEP1.SGM 22DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by nonFederal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement ‘‘reasonable and prudent alternatives’’ to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act’s definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features that occur in specific occupied areas, we focus on the specific features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 Under the second prong of the Act’s definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. The implementing regulations at 50 CFR 424.12(b)(2) further delineate unoccupied critical habitat by setting out three specific parameters: (1) When designating critical habitat, the Secretary will first evaluate areas occupied by the species; (2) the Secretary will consider unoccupied areas to be essential only where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species; and (3) for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts’ opinions or personal knowledge. PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 72571 As the regulatory definition of ‘‘habitat’’ (50 CFR 424.02) reflects, habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, HCPs, or other species conservation planning efforts if new information available at the time of those planning efforts calls for a different outcome. Prudency Determination Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances: (i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (ii) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through E:\FR\FM\22DEP1.SGM 22DEP1 72572 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS management actions resulting from consultations under section 7(a)(2) of the Act; (iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; (iv) No areas meet the definition of critical habitat; or (v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available. As discussed earlier in this document, there is currently no imminent threat of collection or vandalism identified under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our SSA report and proposed listing determination for the cactus ferruginous pygmy-owl, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to cactus ferruginous pygmy-owl and that those threats in some way can be addressed by section 7(a)(2) consultation measures. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met and because the Secretary has not identified other circumstances for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the cactus ferruginous pygmy-owl. Critical Habitat Determinability Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the cactus ferruginous pygmy-owl is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Data sufficient to perform required analyses are lacking, or (ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of ‘‘critical habitat.’’ When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)). We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is located. Careful assessments of the economic and environmental impacts that may occur due to a critical habitat designation are not yet complete, and VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 we are in the process of working with the States and other partners in acquiring the complex information needed to perform those assessments. The information sufficient to perform a required analysis of the impacts of the designation is lacking. Therefore, we conclude that the designation of critical habitat for the cactus ferruginous pygmy-owl is not determinable at this time. As mentioned above, the Act allows the Service an additional year to publish a critical habitat designation that is not determinable at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)). Required Determinations Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (1) Be logically organized; (2) Use the active voice to address readers directly; (3) Use clear language rather than jargon; (4) Be divided into short sections and sentences; and (5) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. National Environmental Policy Act (42 U.S.C. 4321 et seq.) It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). Government-to-Government Relationship With Tribes In accordance with the President’s memorandum of April 29, 1994 PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior’s manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We contacted the Ak Chin Indian Community, Apache Tribe of Oklahoma, Cocopah Indian Tribe, Comanche Nation, Gila River Indian Community, Hopi Tribe, Pascua Yaqui Tribe, San Carlos Apache Tribe, Salt River PimaMaricopa Indian Community, Tohono O’odam Nation, Tonkawa Tribe of Indians, White Mountain Apache Tribe, Wichita and Affiliated Tribes, and Yavapai Apache Nation regarding the SSA process by mail and invited them to provide information and comments to inform the SSA. Our interactions with these Tribes are part of our governmentto-government consultation with Tribes regarding the pygmy-owl and the Act. The Tohono O’odham Nation was invited to participate as a member of the SSA team because they have historically participated on issues related to the cactus ferruginous pygmy-owl and they have extensive acreage of pygmy-owl habitat. They accepted the invitation and have participated in development of the SSA, as well as with pygmy-owls surveys and monitoring. We will continue to work with Tribal entities during the rulemaking process. References Cited A complete list of references cited in this rulemaking is available on the internet at http://www.regulations.gov and upon request from the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service’s Species Assessment Team and the Arizona Ecological Services Field Office. E:\FR\FM\22DEP1.SGM 22DEP1 72573 Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules List of Subjects in 50 CFR Part 17 50 of the Code of Federal Regulations, as set forth below: Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS ■ Proposed Regulation Promulgation 1. The authority citation for part 17 continues to read as follows: § 17.11 Endangered and threatened wildlife. Accordingly, we propose to amend part 17, subchapter B of chapter I, title Authority: 16 U.S.C. 1361–1407; 1531– 1544; and 4201–4245, unless otherwise noted. * Common name * * Scientific name * * Pygmy-owl, cactus ferruginous. * * Glaucidium brasilianum cactorum. * Special rules—birds. * * * * * (l) Cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum). (1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to cactus ferruginous pygmy-owl. Except as provided under paragraphs (l)(2) and (3) of this section and §§ 17.4, 17.5, and 17.7, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or cause to be committed, any of the following acts in regard to this species: (i) Import or export, as set forth at § 17.21(b) for endangered wildlife. (ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife. (iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife. (iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife. (v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife. (2) General exceptions from prohibitions. In regard to this species, you may: (i) Conduct activities as authorized by a permit under § 17.32. (ii) Take, as set forth at § 17.21(c)(2) through (4) for endangered wildlife, and VerDate Sep<11>2014 16:13 Dec 21, 2021 Jkt 256001 Status * BIRDS * Wherever found ............ * 3. As proposed to be amended at 83 FR 50560 (October 9, 2018), 85 FR 63474 (October 8, 2020), 86 FR 15855 (March 25, 2021), 86 FR 31668 (June 15, 2021), and 86 FR 41917 (August 4, 2021), § 17.41 is further amended by adding paragraph (l) to read as follows: § 17.41 Where listed * ■ khammond on DSKJM1Z7X2PROD with PROPOSALS 2. Amend § 17.11(h) by adding an entry for ‘‘Pygmy-owl, cactus ferruginous’’ to the List of Endangered and Threatened Wildlife, in alphabetical order under Birds, to read as follows: ■ * Frm 00038 Fmt 4702 * * T * * * * * [Federal Register citation when published as a final rule]; 50 CFR 17.41(l).4d * Sfmt 9990 * Listing citations and applicable rules (c)(6) and (7) for endangered migratory birds. (iii) Take as set forth at § 17.31(b). (iv) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife, and (d)(3) and (4) for endangered migratory birds. (3) Exceptions from prohibitions for specific types of incidental take. You may take cactus ferruginous pygmy-owl while carrying out the following legally conducted activities in accordance with this paragraph (l)(3): (i) Educational and outreach activities, provided the researcher already holds an appropriate, valid permit issued under part 21 of this chapter, which governs species protected under the Migratory Bird Treaty Act, for educational activities involving the use of live pygmy-owls, pygmy-owl skins, or parts of pygmyowls or other raptors. (ii) Habitat restoration and enhancement activities and projects that are approved by the Service prior to commencing work. (A) These activities and projects may include activities that enhance cactus ferruginous pygmy-owl habitat conditions; improve habitat connectivity; increase availability of nest cavities; increase prey availability; reduce invasive, nonnative plant species; and enhance native plant communities, particularly woodland riparian communities. (B) These activities and projects do not include prescribed fire within Sonoran Desert vegetation communities, any actions that would result in more than a minimal reduction or removal of tree cover (as determined by the PO 00000 * * (h) * * * * * Service), and actions that use or promote nonnative vegetation species. (iii) For all forms of allowable take, reasonable care must be practiced to minimize the impacts from the actions. Reasonable care means: (A) Limiting the impacts to cactus ferruginous pygmy-owl individuals and populations by complying with all applicable Federal, State, and Tribal regulations for the activity in question; (B) Using methods and techniques that result in the least harm, injury, or death, as feasible; (C) Undertaking activities at the least impactful times (e.g., conducting activities that might impact nesting cactus ferruginous pygmy-owls or nesting habitat only after nesting is concluded for the year) and locations, as feasible; (D) Procuring and implementing technical assistance from a qualified biologist on projects regarding all methods prior to the implementation of those methods; (E) Minimizing the number of individuals disturbed in the existing wild population; (F) Implementing best management practices to ensure no diseases or parasites are introduced into existing cactus ferruginous pygmy-owl populations; and (G) Preserving the genetic diversity of wild populations. Martha Williams, Principal Deputy Director, Exercising the Delegated Authority of the Director, U.S. Fish and Wildlife Service. [FR Doc. 2021–27516 Filed 12–21–21; 8:45 am] BILLING CODE 4333–15–P E:\FR\FM\22DEP1.SGM 22DEP1

Agencies

[Federal Register Volume 86, Number 243 (Wednesday, December 22, 2021)]
[Proposed Rules]
[Pages 72547-72573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27516]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2021-0098; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BF25


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for Cactus Ferruginous Pygmy-Owl

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the cactus ferruginous pygmy-owl (Glaucidium brasilianum 
cactorum), a subspecies found in Mexico, southern Arizona, and southern 
Texas, as a threatened species under the Endangered Species Act of 
1973, as amended (Act). This determination also serves as our 12-month 
finding on a petition to list the cactus ferruginous pygmy-owl. After a 
review of the best available scientific and commercial information, we 
find that listing the subspecies is warranted. Accordingly, we propose 
to list the cactus ferruginous pygmy-owl as a threatened species with a 
rule issued under section 4(d) of the Act (``4(d) rule''). If we 
finalize this rule as proposed, it would add this subspecies to the 
List of Endangered and Threatened Wildlife and extend the Act's 
protections to the subspecies. The finalization of this rule as 
proposed would include the issuance of a 4(d) rule. Designation of 
critical habitat was found to be prudent, but not determinable at this 
time. We also are notifying the public that we have scheduled an 
informational meeting followed by a public hearing on the proposed 
rule.

DATES: We will accept comments received or postmarked on or before 
February 22, 2022. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date.
    Public informational meeting and public hearing: We will hold a 
public informational session from 4:00 p.m. to 5:30 p.m., Mountain 
Standard Time, followed by a public hearing from 6:00 p.m. to 7:30 
p.m., Mountain Standard Time, on January 25, 2022.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter the docket number or RIN 
for this rulemaking (presented above in the document headings). For 
best results, do not copy and paste either number; instead, type the 
docket number or RIN into the Search box using hyphens. Then, click on 
the Search button. On the resulting page, in the panel on the left side 
of the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R2-ES-2021-0098, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Public informational meetings and public hearings: The public 
informational meetings and the public hearings will be held virtually 
using the Zoom platform. See Public Hearing, below, for more 
information.

FOR FURTHER INFORMATION CONTACT: Jeff Humphrey, Field Supervisor, U.S. 
Fish and Wildlife Service, Arizona Ecological Services Field Office, 
9828 N 31st Ave., Phoenix, AZ, 85051; telephone 602-242-0210. Persons 
who use a telecommunications device for the deaf (TDD) may call the 
Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become endangered in the foreseeable 
future throughout all or a significant portion of its range). We have 
determined that the cactus ferruginous pygmy-owl meets the definition 
of a threatened species; therefore, we are proposing to list it as 
such. To the maximum extent prudent and determinable, we must designate 
critical habitat for any species that we determine to be an endangered 
or threatened species under the Act. Listing a species as an endangered 
or threatened species and designation of critical habitat can be 
completed only by issuing a rule.

[[Page 72548]]

    What this document does. We propose to list the cactus ferruginous 
pygmy-owl as a threatened species under the Act with a rule issued 
under section 4(d) of the Act. As explained in this document, we find 
that the designation of critical habitat for the cactus ferruginous 
pygmy-owl is not determinable at this time.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.
    We have determined that threats to the cactus ferruginous pygmy-owl 
include: (1) Habitat loss and fragmentation from urbanization, invasive 
species, and agricultural or forest production; and (2) climate change 
(effects from future changes in climate) and climate conditions 
(effects from current and past climate), resulting in hotter, more arid 
conditions throughout much of the subspecies' geographic range. The 
proposed 4(d) rule would generally prohibit the same activities as 
prohibited for an endangered species but would allow exemptions for 
specific types of education and outreach activities already permitted 
under a Migratory Bird Treaty Act permit and habitat restoration and 
enhancement activities that improve habitat conditions for the cactus 
ferruginous pygmy-owl.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. As explained later in this 
proposed rule, we find that the designation of critical habitat for the 
cactus ferruginous pygmy-owl is not determinable at this time.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) The subspecies' biology, range, and population trends, 
including:
    (a) Biological or ecological requirements of the subspecies, 
including habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the subspecies, its 
habitat, or both, and the effectiveness of such measures.
    (2) Factors that may affect the continued existence of the 
subspecies, which may include habitat modification or destruction, 
overutilization, disease, predation, the inadequacy of existing 
regulatory mechanisms, or other natural or manmade factors. We are also 
seeking information indicating where threats are disproportionately 
affecting the cactus ferruginous pygmy-owl within specific portions of 
its geographical range.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this subspecies and existing 
regulations that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this subspecies, 
including the locations of any additional populations of this 
subspecies.
    (5) Information on regulations that are necessary and advisable to 
provide for the conservation of the cactus ferruginous pygmy-owl and 
that the Service can consider in developing a 4(d) rule for the 
subspecies. In particular, we are seeking information concerning the 
extent to which we should include any of the section 9 prohibitions in 
the 4(d) rule or whether we should consider any additional exceptions 
from the prohibitions in the 4(d) rule. We encourage public and agency 
comments related to our consideration of using the State permitting 
process, if required, in the 4(d) rule as the basis of an exception to 
the prohibitions on take related to certain pygmy-owl survey and 
monitoring activities. We are also specifically seeking documentation 
of the effects and benefits of properly managed grazing on cactus 
ferruginous pygmy-owl habitat, as well as the threat of current and 
historical improper grazing in both the United States and Mexico.
    (6) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including information to inform the following factors that the 
regulations identify as reasons why designation of critical habitat may 
be not prudent:
    (a) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (b) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (c) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States; or
    (d) No areas meet the definition of critical habitat.
    (7) Specific information on:
    (a) Demographic information for the cactus ferruginous pygmy-owl, 
including dispersal patterns, prey relationships, survival, 
reproduction, sources of mortality, updated occurrence records, and 
population trends;
    (b) The amount and distribution of cactus ferruginous pygmy-owl 
habitat, including habitat connectivity, patch size, geographic range, 
and future climate change effects on the subspecies' habitat;
    (c) Which areas, that were occupied at the time of listing and that 
contain the physical or biological features essential to the 
conservation of the subspecies, should be included in the designation 
and why;
    (d) Any additional areas occurring within the range of the species, 
[i.e., Yuma, Maricopa, Pinal, Pima, Santa Cruz, Cochise, Graham, Gila 
counties in Arizona and Kleberg, Kenedy, Willacy, Cameron, Hidalgo, 
Brooks, Jim Wells, Duval, Jim Hogg, Starr, Zapata, and Webb counties in 
Texas], that should be included in the designation because they (1) are 
occupied at the time of listing and contain the physical or biological 
features that are essential to the conservation of the species and may 
require special management considerations, or (2) are unoccupied at the 
time of listing and are essential for the conservation of the species;
    (e) Special management considerations or protection that may be 
needed in critical habitat areas, including managing for the potential 
effects of climate change; and
    (f) Which areas, not occupied at the time of listing, are essential 
for the

[[Page 72549]]

conservation of the subspecies. We particularly seek comments:
    (i) Regarding whether occupied areas are adequate for the 
conservation of the subspecies; and
    (ii) Providing specific information regarding whether or not 
unoccupied areas would, with reasonable certainty, contribute to the 
conservation of the subspecies and contain at least one physical or 
biological feature essential to the conservation of the species; and
    (iii) Explaining whether or not unoccupied areas fall within the 
definition of ``habitat'' at 50 CFR 424.02 and why.
    Please include sufficient information with your submission (such as 
scientific journal articles, research reports, survey results, maps, or 
other publications) to allow us to verify any scientific or commercial 
information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or a 
threatened species must be made ``solely on the basis of the best 
scientific and commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov.
    Because we will consider all comments and information we receive 
during the comment period, our final determinations may differ from 
this proposal. Based on any new information we receive (and any 
comments on that new information), we may conclude that the subspecies 
is endangered instead of threatened, or we may conclude that the 
subspecies does not warrant listing as either an endangered species or 
a threatened species. We may also conclude that the subspecies is not 
warranted for listing rangewide, but is warranted in one of the 
petitioned Distinct Population Segments (DPSs) (see Previous Federal 
Actions, below). In addition, we may change the parameters of the 
prohibitions or the exceptions to those prohibitions in the 4(d) rule 
if we conclude it is appropriate in light of comments and new 
information received. For example, we may expand the prohibitions to 
include prohibiting additional activities if we conclude that those 
additional activities are not compatible with conservation of the 
species. Conversely, we may establish additional exceptions to the 
prohibitions in the final rule if we conclude that the activities would 
facilitate or are compatible with the conservation and recovery of the 
species.

Public Hearing

    We have scheduled a public informational meeting and public hearing 
on this proposed rule to list the cactus ferruginous pygmy-owl as a 
threatened species. We will hold the public informational meeting and 
public hearing on the date and at the times listed above under Public 
informational meeting and public hearing in DATES. We are holding the 
public informational meeting and public hearing via the Zoom online 
video platform and via teleconference so that participants can attend 
remotely. For security purposes, registration is required. To listen 
and view the meeting and hearing via Zoom, listen to the meeting and 
hearing by telephone, or provide oral public comments at the public 
hearing by Zoom or telephone, you must register. For information on how 
to register, or if you encounter problems joining Zoom the day of the 
meeting, visit https://www.fws.gov/southwest/. Registrants will receive 
the Zoom link and the telephone number for the public informational 
meeting and public hearing. If applicable, interested members of the 
public not familiar with the Zoom platform should view the Zoom video 
tutorials (https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials) prior to the public informational meeting and public 
hearing. The public hearing will provide interested parties an 
opportunity to present verbal testimony (formal, oral comments) 
regarding this proposed rule. The public informational meeting will be 
an opportunity for dialogue with the Service. The public hearing is a 
forum for accepting formal verbal testimony. In the event there is a 
large attendance, the time allotted for oral statements may be limited. 
Therefore, anyone wishing to make an oral statement at the public 
hearing for the record is encouraged to provide a prepared written copy 
of their statement to us through the Federal eRulemaking Portal, or 
U.S. mail (see ADDRESSES, above). There are no limits on the length of 
written comments submitted to us. Anyone wishing to make an oral 
statement at the public hearings must register before the hearing 
(https://www.fws.gov/southwest/). The use of a virtual public hearing 
is consistent with our regulations at 50 CFR 424.16(c)(3).

Reasonable Accommodation

    The Service is committed to providing access to the public 
informational meeting and public hearing for all participants. Closed 
captioning will be available during the public informational meeting 
and public hearing. Further, a full audio and video recording and 
transcript of the public hearing will be posted online at https://www.fws.gov/southwest/ after the hearing. Participants will also have 
access to live audio during the public informational meeting and public 
hearing via their telephone or computer speakers. Persons with 
disabilities requiring reasonable accommodations to participate in the 
meeting and/or hearing should contact the person listed under FOR 
FURTHER INFORMATION CONTACT at least 5 business days prior to the date 
of the meeting and hearing to help ensure availability. An accessible 
version of the Service's public informational meeting presentation will 
also be posted online at https://www.fws.gov/southwest/ prior to the 
meeting and hearing (see DATES, above). See https://www.fws.gov/southwest/ for more information about reasonable accommodation.

Previous Federal Actions

    A thorough summary of previous Federal actions related to the 
pygmy-owl can be found in the March 10, 1997, final rule (62 FR 10730) 
to list the cactus ferruginous pygmy-owl in Arizona as endangered; the 
April 14, 2006, final rule (71 FR 19452) removing the listing 
promulgated in the March 10, 1997, final rule; the June 2, 2008, 90-day 
finding (73 FR 31418); and the October 5, 2011, 12-month finding on a 
petition to list (76 FR 61856).
    On March 20, 2007, we received a petition dated March 15, 2007, 
from the Center for Biological Diversity and Defenders of Wildlife 
(CBD, DOW; petitioners) requesting that we list the cactus ferruginous 
pygmy-owl (Glaucidium brasilianum cactorum) (pygmy-owl) as an 
endangered or

[[Page 72550]]

threatened species under the Act (CBD and DOW 2007, entire). The 
petitioners described three potentially listable entities of the pygmy-
owl: (1) An Arizona DPS of the pygmy-owl; (2) a Sonoran Desert DPS of 
the pygmy-owl; and (3) the western subspecies of the pygmy-owl, which 
they identified as Glaucidium ridgwayi cactorum. On October 5, 2011, we 
published in the Federal Register (76 FR 61856) a 12-month finding on 
the petition to list the pygmy-owl as endangered or threatened. We 
found that Glaucidium ridgwayi cactorum was not a valid taxon and, 
therefore, not a listable entity under the Act. Additionally, using the 
currently accepted taxonomic classification of the pygmy-owl 
(Glaucidium brasilianum cactorum), we found that listing the pygmy-owl 
was not warranted throughout all or a significant portion of its range, 
including the petitioned and other potential DPS configurations.
    In 2014, the Center for Biological Diversity and Defenders of 
Wildlife challenged our determination that listing the pygmy-owl was 
not warranted under the Act (Ctr. For Biological Diversity v. Jewell, 
248 F. Supp. 3d 946). The challenge centered on whether we had 
correctly defined language in the Act authorizing listing of a species 
that is endangered or threatened in either ``all or a significant 
portion of its range'' (SPR). The plaintiffs challenged our final 
policy interpreting this SPR language (SPR Policy) and how it was 
applied in listing determinations. In its decision on March 28, 2017, 
the court reasoned that ``if a portion of a species' range is 
'significant' only 'if its contribution to the viability of the species 
is so important that, without that portion, the species would be in 
danger of extinction,' and the species is endangered or threatened in 
that portion (as would be required for listing), then the species is 
necessarily endangered or threatened overall'' (248 F.Supp.3d at 959). 
The court thus found the SPR Policy invalid because it defined 
``significant'' in such a way as to limit the SPR language to 
situations in which it is unnecessary. The court vacated and remanded 
the definition of ``significant'' in the SPR Policy. The not-warranted 
finding for the cactus ferruginous pygmy-owl relied on a draft of this 
SPR Policy, which was slightly different than the final policy. The 
draft SPR Policy interpretation defined a range portion as 
``significant'' ``if its contribution to the viability of the species 
is so important that, without that portion, the species would be in 
danger of extinction [i.e., endangered]'' (76 FR 76987, December 9, 
2011; p. 77002). The court also found this interpretation of SPR 
impermissible by limiting the SPR language to situations in which it is 
unnecessary, and the court vacated our not-warranted finding for the 
pygmy-owl. On November 14, 2019, the parties to the lawsuit agreed that 
the Service would submit a 12-month finding to the Federal Register no 
later than August 5, 2021. On July 6, 2021, the court granted an 
extension to allow additional time to review new data provided by the 
Arizona Game and Fish Department. The new deadline requires that the 
Service submit the 12-month finding to the Federal Register no later 
than December 16, 2021. This document complies with the court's 
deadline.

Distinct Population Segment Analysis

    Regarding the petitioned DPSs in Arizona and the Sonoran Desert 
included in the 2007 petition, we reaffirm our October 5, 2011, 12-
month finding (76 FR 61856). Specifically, we considered a DPS for the 
Sonoran Desert population of the pygmy-owl and concluded that this 
population does not meet the discreteness conditions of the Service's 
policy regarding the Recognition of Distinct Vertebrate Population 
Segments Under the Endangered Species Act (61 FR 4722, February 7, 
1996). We also considered a DPS for the Arizona population of the 
pygmy-owl and concluded that, while the discreteness criteria for the 
DPS were met, we could not show that this DPS was significant to the 
taxon as a whole. For information regarding our rationale, please see 
Analysis of Potential Distinct Population Segments in our previous 12-
month finding (76 FR 61856, October 5, 2011, pp. 61885-61889). We will 
accept comments related to these DPS decisions during the public 
comment period on this proposed rule (see DATES, above).

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the cactus ferruginous pygmy-owl. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the subspecies, including the 
impacts of past, present, and future factors (both negative and 
beneficial) affecting the subspecies. In accordance with our joint 
policy on peer review published in the Federal Register on July 1, 1994 
(59 FR 34270), and our August 22, 2016, memorandum updating and 
clarifying the role of peer review of listing actions under the Act, we 
sought the expert opinions of five appropriate specialists regarding 
the SSA report. We received three responses. We also sent the SSA 
report to 13 partners, including Tribes and scientists with expertise 
in land management, pygmy-owl and raptor ecology, and climate science, 
for review. We received review from 11 partners, including State and 
Federal agencies, universities, and nonprofit organizations.

I. Proposed Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
cactus ferruginous pygmy-owl is presented in the SSA report. We 
summarize this information here.
    The cactus ferruginous pygmy-owl is a diurnal, nonmigratory 
subspecies of ferruginous pygmy-owl (Glaucidium brasilianum) and is 
found from central Arizona south to Michoac[aacute]n, Mexico, in the 
west and from south Texas to Tamaulipas and Nuevo Leon, Mexico, in the 
east. Pygmy-owls eat a variety of prey including birds, insects, 
lizards, and small mammals, with the relative importance of prey type 
varying throughout the year.
    The pygmy-owl is a small bird, approximately 17 centimeters (cm) 
(6.7 inches (in)) long. Generally, male pygmy-owls average 58 grams (g) 
to 66 g (2.0 to 2.3 ounces (oz)) and females average 70 g to 75 g (2.4 
to 2.6 oz). The pygmy-owl is reddish brown overall, with a cream-
colored belly streaked with reddish brown. The crown is lightly 
streaked, and a pair of dark brown or black spots outlined in white 
occurs on the nape, suggesting eyes (Oberholser 1974, p. 451). The 
species lacks obvious ear tufts (Santillan et al. 2008, p. 154), and 
the eyes are yellow. The tail is relatively long for an owl and is 
reddish brown in color, with darker brown bars. Males have pale bands 
between the dark bars on the tail, while females have darker reddish 
bands between the dark bars.
    Cactus ferruginous pygmy-owls are secondary cavity nesters, nesting 
in cavities of trees and columnar cacti, with nesting substrate varying 
throughout its range. Pygmy-owls can breed in their first year and 
typically mate for life, with both sexes breeding annually. Clutch size 
can vary from two to seven eggs with the female incubating the eggs for 
28 days (Johnsgard 1988, p. 162; Proudfoot and Johnson 2000, p. 11). 
Fledglings disperse from their natal sites about 8 weeks after they 
fledge (Flesch and Steidl 2007, p. 36). Pygmy-owls live on average 3 to 
5 years, but

[[Page 72551]]

have been documented to live 7 to 9 years in the wild (Proudfoot 2009, 
pers. comm.) and 10 years in captivity (AGFD 2009, pers. comm.).
    Pygmy-owls are found in a variety of vegetation communities, 
including Sonoran desertscrub and semidesert grasslands in Arizona and 
northern Sonora, thornscrub and dry deciduous forests in southern 
Sonora south to Michoac[aacute]n, Tamaulipan brushland in northeastern 
Mexico, and live oak forest in Texas. At a finer scale, the pygmy-owl 
is a creature of edges found in semi-open areas of thorny scrub and 
woodlands in association with giant cacti and in scattered patches of 
woodlands in open landscapes, such as dry deciduous forests and 
riparian communities along ephemeral, intermittent, and perennial 
drainages (K[ouml]nig et al. 1999, p. 373). It is often found at the 
edges of riparian and xeroriparian drainages and even habitat edges 
created by villages, towns, and cities (Abbate et al. 1999, pp. 14-23; 
Proudfoot and Johnson 2000, p. 5).
    The taxonomy of Glaucidium is complicated and has been the subject 
of much discussion and investigation. Following delisting of the pygmy-
owl in 2006 (71 FR 19452; April 14, 2006), the Service was petitioned 
to relist the pygmy-owl (CBD and DOW 2007, entire). The petitioners 
requested a revised taxonomic consideration for the pygmy-owl based on 
Proudfoot et al. (2006a, p. 9; 2006b, p. 946) and K[ouml]nig et al. 
(1999, pp. 160, 370-373), classifying the northern portion of 
Glaucidium brasilianum's range as an entirely separate species, G. 
ridgwayi and recognizing two subspecies of G. ridgwayi: G. r. cactorum 
in western Mexico and Arizona and G. r. ridgwayi in eastern Mexico and 
Texas. Other recent studies proposing or supporting the change to G. 
ridgwayi for the northern portion of G. brasilianum's range have been 
published in the past 20 years (Navarro-Sig[uuml]enza and Peterson 
2004, p. 5; Wink et al. 2008, pp. 42-63; Enr[iacute]quez et al. 2017, 
p. 15).
    As we evaluated the cactus ferruginous pygmy-owl's current status, 
we found that, although there is genetic differentiation at the far 
ends of the pygmy-owl's distribution represented by Arizona and Texas, 
there continues to be uncertainty in the southern portion of the range. 
This area represents the boundary between the two proposed subspecies, 
which raises the question of whether there is adequate data to support 
a change in species classification and define the eastern and western 
distributions as separate subspecies. While future work and studies may 
clarify and resolve these issues, we will continue to use the currently 
accepted distribution of G. brasilianum cactorum as described in the 
1957 American Ornithologists' Union (now the American Ornithological 
Society) checklist and various other publications (Friedmann et al. 
1950, p. 145; Oberholser 1974, p. 452; Johnsgard 1988, p. 159; Millsap 
and Johnson 1988, p. 137).

Regulatory and Analytical Framework

Regulatory Framework
    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an endangered species or a threatened species. The 
Act defines an ``endangered species'' as a species that is in danger of 
extinction throughout all or a significant portion of its range, and a 
``threatened species'' as a species that is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. The Act requires that we determine 
whether any species is an endangered species or a threatened species 
because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
Analytical Framework
    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial

[[Page 72552]]

data regarding the status of the cactus ferruginous pygmy-owl, 
including an assessment of the potential threats to the subspecies. The 
SSA report does not represent a decision by the Service on whether the 
subspecies should be proposed for listing as an endangered or 
threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies. The following is a summary of 
the key results and conclusions from the SSA report; the full SSA 
report can be found under Docket No. FWS-R2-ES-2021-0098 at http://www.regulations.gov and at https://www.fws.gov/southwest/es/arizona/.
    To assess the cactus ferruginous pygmy-owl's viability, we used the 
three conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy supports the ability of the species to 
withstand catastrophic events (for example, droughts, large pollution 
events), and representation supports the ability of the species to 
adapt over time to long-term changes in the environment (for example, 
climate changes). In general, the more resilient and redundant a 
species is and the more representation it has, the more likely it is to 
sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluate the individual species' life-
history needs. The next stage involves an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involves making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we use the best available information to characterize viability 
as the ability of a species to sustain populations in the wild over 
time. We use this information to inform our regulatory decision.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
cactus ferruginous pygmy-owl and its resources, and the threats that 
influence the subspecies' current and future condition, in order to 
assess the subspecies' overall viability and the risks to that 
viability. The overall geographic range of the pygmy-owl is very large 
(approximately 140,625 square miles [364,217 square kilometers]) and 
covers two countries, the United States and Mexico. To assist in our 
analysis, we divided the overall geographic range of the pygmy-owl into 
five analysis units based upon biological, vegetative, political, 
climatic, geographical, and conservation differences. The five analysis 
units are: Arizona, northern Sonora, western Mexico, Texas, and 
northeastern Mexico. We analyzed each of these analysis units 
individually and looked at a combined outcome across the entire range 
of the subspecies.

Threats

    We reviewed the potential risk factors that could be affecting the 
pygmy-owl now and in the future including: Climate change and climate 
condition (Factor E), habitat loss and fragmentation (Factor A), human 
activities and disturbance (Factors B and E), human-caused mortality 
(Factors B and E), disease and predation (Factor C), and small 
population size (Factor E). In this proposed rule, we will discuss only 
those factors in detail that could meaningfully impact the status of 
the subspecies. Those risks that are not known to have effects on 
pygmy-owl populations, such as disease, are not discussed here but are 
evaluated in the SSA report. The primary risk factors affecting the 
current and future status of the pygmy-owl are: (1) Habitat loss and 
fragmentation (Factor A), and (2) climate change and climate conditions 
(Factor E). For a detailed description of the threats analysis, please 
refer to the Species Status Assessment report (USFWS 2021, entire).
Habitat Loss and Fragmentation
    Pygmy-owls require habitat elements, such as mature woodlands, that 
include appropriate cavities for nest sites, adequate structural 
diversity and cover, and a diverse prey base. Urbanization, invasive 
species, and agricultural or forest production are all leading to a 
reduction in the extent of habitat and an increase in habitat 
fragmentation throughout the geographic range of the subspecies.
Urbanization
    Urbanization causes permanent impacts on the landscape that 
potentially result in the loss and alteration of pygmy-owl habitat. 
Residential, commercial, and infrastructure development replace and 
fragment areas of native vegetation resulting in the loss of available 
pygmy-owl habitat and habitat connectivity needed to support pygmy-owl 
dispersal and demographic support (exchange of individuals and rescue 
effect) of population groups.
    Urbanization can also have detrimental effects on wildlife habitat 
by increasing the channelization or disruption of riverine corridors, 
the proliferation of exotic species, and the fragmentation of remaining 
patches of natural vegetation into smaller and smaller pieces that are 
unable to support viable populations of native plants or animals (Ewing 
et al. 2005, pp. 1-2; Nabhan and Holdsworth 1998, p. 2). Human-related 
mortality (e.g., shooting, collisions, and predation by pets) also 
increases as urbanization increases (Banks 1979, pp. 1-2; Churcher and 
Lawton 1987, p. 439). Development of roadways and their contribution to 
habitat loss and fragmentation is a particularly widespread impact of 
urbanization (Nickens 1991, p. 1). Data from Arizona and Mexico 
indicate that roadways and other open areas lacking cover affect pygmy-
owl dispersal (Flesch and Steidl 2007, pp. 6-7; Abbate et al. 1999, p. 
54). Nest success and juvenile survival were also lower at pygmy-owl 
nest sites closer to large roadways, suggesting that habitat quality 
may be reduced in those areas (Flesch and Steidl 2007, pp. 6-7).
    From 2010 to 2020, population growth rates increased in all Arizona 
counties where the pygmy-owl occurs: Pima (9.3 percent); Pinal (25.7 
percent); and Santa Cruz (13 percent) (OEO 2021, unpaginated). Many 
cities and towns within the historical distribution of the pygmy-owl in 
Arizona experienced substantial growth between April 2010 and July 
2019: Casa Grande (20.7 percent); City of Eloy (17.8 percent); City of 
Florence (7.7 percent); Town of Marana (41.9 percent); Town of Oro 
Valley (12.2 percent); and the Town of Sahuarita (20.9 percent) (U.S. 
Census Bureau 2021, unpaginated).Urban expansion and human population 
growth trends in Arizona are expected to continue into the future. The 
Maricopa-Pima-Pinal County areas of Arizona are expected to grow by as 
much as 132 percent between 2005 and 2050, creating rural-urban edge 
effects across thousands of acres of pygmy-owl

[[Page 72553]]

habitat (AECOM 2011, p. 13). Additionally, a wide area from the 
international border in Nogales, through Tucson, Phoenix, and north 
into Yavapai County (called the Sun Corridor ``Megapolitan'' Area) is 
projected to have 11,297,000 people by 2050, a 132 percent increase 
from 2005 (AECOM 2011, p. 13). If build-out occurs as expected, it will 
encompass a substantial portion of the current and historical 
distribution of the pygmy-owl in Arizona.
    In Texas, the pygmy-owl occurred in good numbers until 
approximately 90 percent of the mesquite-ebony woodlands of the Rio 
Grande delta were cleared in 1910-1950 (Oberholser 1974, p. 452). 
Currently, most of the pygmy-owl habitat occurs on private ranch lands 
and therefore the threat of habitat loss and fragmentation of the 
remaining pygmy-owl habitat due to urbanization is reduced. However, 
urbanization and agriculture along the United State-Mexico border are 
likely to continue to isolate the Texas population of pygmy-owls by 
restricting movements between Texas and northeastern Mexico.
    The United States-Mexico border region has a distinct demographic 
pattern of permanent and temporary development related to warehouses, 
exports, and other border-related activities, and patterns of 
population growth in this area of northern Mexico has accelerated 
relative to other Mexican States (Pineiro 2001, pp. 1-2). The Sonoran 
border population has been increasing faster than that State's average 
and faster than Arizona's border population; between 1990 and 2000, the 
population in the Sonoran border municipios increased by 33.4 percent, 
compared to Sonora's average (21.6 percent) and the average increase of 
Arizona's border counties (27.8 percent). Urbanization has increased 
habitat conversion and fragmentation, which, along with immigration, 
population growth, and resource consumption, were ranked as the highest 
threats to the Sonoran Desert Ecoregion (Nabhan and Holdsworth 1998, p. 
1). This pattern focuses development, and potential barriers or 
impediments to pygmy-owl movements, in a region that is important for 
demographic support (immigration events and gene flow) of pygmy-owl 
population groups, including movements such as dispersal. When looking 
specifically at the United States-Mexico border region extending from 
Texas to California, the human population is approximately 15 million 
inhabitants and this population is expected to double by 2025 (HHS 
2017, p. 1).
    Significant human population expansion and urbanization in the 
Sierra Madre foothill corridor may represent a long-term risk to pygmy-
owls in northeastern Mexico. From 2010 to 2015 the population in 
Tamaulipas increased by 8 percent to 3,527,735 and the population in 
Nuevo Le[oacute]n increased by 24 percent to 5,784,442 (DataMexico 
2021, unpaginated). Such increasing urbanization results in the 
permanent removal of pygmy-owl habitat reducing habitat availability 
and, more significantly, increases habitat fragmentation affecting the 
opportunity for pygmy-owl movements within northeastern Mexico and 
between Mexico and Texas. Habitat removal in northeastern Mexico is 
widespread and nearly complete in northern Tamaulipas (Hunter 1988, p. 
8). Demographic support (rescue effect) of pygmy-owl population groups 
is threatened by ongoing loss and fragmentation of habitat in this 
area. Urbanization has the potential to permanently alter the last 
major landscape linkage between the pygmy-owl population in Texas and 
those in northeastern Mexico (Tewes 1993, pp. 28-29).
    Human population growth in Sinaloa, Nayarit, Colima, and Jalisco, 
Mexico are relatively slow compared to Sonora and northeastern Mexico. 
From 2010 to 2015, the population in Sinaloa grew at a rate of 9.3 
percent, Nayarit grew at a rate of 13.9 percent, Jalisco grew at a rate 
of 13.6 percent, and Colima grew at a rate of 12.4 percent (DataMexico 
2021, unpaginated). These areas of Mexico are not experiencing the very 
high growth rates of Sonora and other border regions of Mexico, but 
will likely have some concurrent spread of urbanization. In addition, 
most of the growth is taking place in the large cities, and rather than 
in the rural areas that likely support pygmy-owl habitat (Brinkhoff 
2016, unpaginated). However, these Mexican states have other threats to 
pygmy-owl habitat occurring such as agricultural development and 
deforestation that, in combination with habitat lost to urbanization, 
represent threats to the continued viability of the pygmy-owl in this 
area.
Invasive Species
    The invasion of nonnative vegetation, particularly nonnative 
grasses, has altered the natural fire regime over the Sonoran Desert 
ecoregion of the pygmy-owl range (Esque and Schwalbe 2002, p. 165). In 
areas comprised entirely of native species, ground vegetation density 
is mediated by barren spaces that do not allow fire to carry across the 
landscape. However, in areas where nonnative species have become 
established, the fine fuel load is continuous, and fire is capable of 
spreading quickly and efficiently (Esque and Schwalbe 2002, p. 175). As 
a result, fire has become a significant threat to the native vegetation 
of the Sonoran Desert.
    Nonnative annual plants prevalent within the Sonoran range of the 
pygmy-owl include Bromus rubens and B. tectorum (brome grasses), 
Schismus spp. (Mediterranean grasses), and Sahara mustard (Brassica 
tournefortii) (Esque and Schwalbe 2002, p. 165; ASDM 2021, entire). 
However, the nonnative species that is currently the greatest threat to 
vegetation communities in Arizona and northern Sonora, Mexico is the 
perennial Cenchrus ciliaris (buffelgrass), which is prevalent and 
increasing throughout much of the Sonoran range of the pygmy-owl 
(Burquez and Quintana 1994, p. 23; Van Devender and Dimmit 2006, p. 5).
    Buffelgrass is not only fire-tolerant (unlike native Sonoran Desert 
plant species), but is actually fire-promoting (Halverson and Guertin 
2003, p. 13). Invasion sets in motion a grass-fire cycle where 
nonnative grass provides the fuel necessary to initiate and promote 
fire. Nonnative grasses recover more quickly than native grass, tree, 
and cacti species and cause a further susceptibility to fire (D'Antonio 
and Vitousek 1992, p. 73; Schmid and Rogers 1988, p. 442). While a 
single fire in an area may or may not produce long-term reductions in 
plant cover or biomass, repeated wildfires in a given area, due to the 
establishment of nonnative grasses, are capable of ecosystem type-
conversion from native desertscrub to nonnative annual grassland. These 
repeated fires may render the area unsuitable for pygmy-owls and other 
native wildlife due to the loss of trees and columnar cacti, and 
reduced diversity of cover and prey species (Brooks and Esque 2002, p. 
336).
    The distribution of buffelgrass has been supported and promoted by 
governments on both sides of the United States-Mexico border as a 
resource to increase range productivity and forage production. A 2006 
publication estimates that 1.8 million ha (4.5 million ac) have been 
converted to buffelgrass in Sonora, and that between 1990 and 2000, 
there was an 82 percent increase in buffelgrass coverage (Franklin et 
al. 2006, pp. 62, 66). Following establishment, buffelgrass fuels fires 
that destroy Sonoran desertscrub, thornscrub, and, to a lesser extent, 
tropical deciduous forest; the disturbed areas are quickly converted to 
open savannas composed entirely of buffelgrass which removes pygmy-owl 
nest substrates and generally renders

[[Page 72554]]

areas unsuitable for future occupancy by pygmy-owls. Buffelgrass is now 
fully naturalized in most of Sonora, southern Arizona, and some areas 
in central and southern Baja California (Burquez-Montijo et al. 2002, 
p. 131), and now commonly spreads without human cultivation (Arriaga et 
al. 2004, pp. 1509-1511; Perramond 2000, p. 131; Burquez et al. 1998, 
p. 26).
    Similar issues occur in Texas. Buffelgrass is now one of the most 
abundant nonnative grasses in South Texas, and a prevalent invasive 
grass within the range of the pygmy-owl. During the 1950's, federal and 
state land management agencies promoted buffelgrass as a forage grass 
in South Texas (Smith 2010, p. 113). Buffelgrass is very well adapted 
to the hot, semi-arid climate of South Texas due to its drought 
resistance and ability to aggressively establish in heavily grazed 
landscapes (Smith 2010, p. 113). Despite increasing awareness of the 
ecological damage caused by nonnative grasses, buffelgrass is still 
planted in areas affected by drought and overgrazing to stabilize soils 
and to increase rangeland productivity. Prescribed burning used for 
brush control typically promotes buffelgrass forage production in South 
Texas (Hamilton and Scifres 1982, p. 11). Buffelgrass often creates 
homogeneous monocultures by out-competing native plants for essential 
resources (Lyons et al. 2013, p. 8). Furthermore, buffelgrass produces 
phytotoxins in the soil that inhibit the growth of neighboring native 
plants (Vo 2013, unpaginated). With regard to pygmy-owl habitat, the 
loss of trees and canopy cover and the creation of dense ground cover 
resulting from buffelgrass conversion reduces nest cavity availability, 
cover for predator avoidance and thermoregulation, and prey 
availability. Overall, buffelgrass is the dominant herbaceous cover on 
10 million ha in southern Texas and northeastern Mexico (Wied et al. 
2020, p. 47).
    The impacts of buffelgrass establishment and invasion are 
substantial for the pygmy-owl in the United States and Mexico because 
conversion results in the loss of important habitat features, 
particularly columnar cacti and trees that provide nest sites. 
Buffelgrass invasion and the subsequent fires eliminate most columnar 
cacti, trees, and shrubs of the desert (Burquez-Montijo et al. 2002, p. 
138). This elimination of trees, shrubs, and columnar cacti from these 
areas is a potential threat to the survival of the pygmy-owl in the 
northern part of its range, as these vegetation components are 
necessary for roosting, nesting, protection from predators, and thermal 
regulation. Invasion and conversion to buffelgrass also negatively 
affect the diversity and availability of prey species in these areas 
(Franklin et al. 2006, p. 69; Avila-Jimenez 2004, p. 18; Burquez-
Montijo et al. 2002, pp. 130, 135).
    Buffelgrass is adapted to dry, arid conditions and does not grow in 
areas with high rates of precipitation or high humidity, above 
elevations of 1,265 m (4,150 ft), or in areas with freezing 
temperatures. Areas that support pygmy-owls south of Sonora and 
northern Sinaloa typically are wetter and more humid, and the best 
available information does not indicate that buffelgrass is invading 
the southern portion of the pygmy-owl's range. Surveys completed in 
Sonora and Sinaloa in 2006 noted buffelgrass was present in Sonora and 
northern Sinaloa, but the more southerly locations were noted as sparse 
or moderate (Van Devender and Dimmitt 2006, p. 7). As such, this 
nonnative species only affects the northern parts of the pygmy-owl's 
range.
Agricultural Production and Wood Harvesting
    Agricultural development and wood harvesting can result in 
substantial impacts to the availability and connectivity of pygmy-owl 
habitat. Conversion of native vegetation communities to agricultural 
fields or pastures for grazing has occurred within historical pygmy-owl 
habitat in both the United States and Mexico, and not only removes 
existing pygmy-owl habitat elements, but also can affect the long-term 
ability of these areas to return to native vegetation communities once 
agricultural activities cease. Wood harvesting has a direct effect on 
the amount of available cover and nest sites for pygmy-owls and is 
often associated with agricultural development. Wood harvesting also 
occurs to supply firewood and charcoal, and to provide material for 
cultural and decorative wood carvings.
    In Arizona, although new agricultural development is limited, the 
effects to historical habitat are still evident. Many areas that 
historically supported meso- and xeri-riparian habitat have been 
converted to agricultural lands and associated groundwater pumping has 
affected the hydrology of these valleys (Jackson and Comus 1999, pp. 
233, 249). These riparian areas are important pygmy-owl habitat, 
especially within drier upland vegetation communities like Sonoran 
desertscrub and semi-desert grasslands.
    Habitat fragmentation as a result of agricultural development has 
also occurred within Texas. Brush clearing, pesticide use, and 
irrigation practices associated with agriculture have had detrimental 
effects on the Lower Rio Grande Valley (Jahrsdoerfer and Leslie 1988, 
p. 1). From the 1920's until the early 1970's, over 90 percent of 
pygmy-owl habitat in the Lower Rio Grande Valley of Texas was cleared 
for agricultural and urban expansion (Oberholser 1974, p. 452). The 
Norias Division of the King Ranch in southern Texas has been isolated 
by agricultural expansion, which has restricted pygmy-owl dispersal 
(Oberholser 1974). This has resulted in loss of pygmy-owl habitat 
connectivity between pygmy-owl population groups in Texas and in 
Mexico. Historically, agriculture in Sonora, Mexico, was restricted to 
small areas with shallow water tables, but it had, nonetheless, 
seriously affected riparian areas by the end of the nineteenth century. 
For example, in the Rio Mayo and Rio Yaqui coastal plains, nearly one 
million ha (2.5 million ac) of mesquite, cottonwood, and willow 
riparian forests and coastal thornscrub disappeared after dams upriver 
started to operate (Burquez and Martinez-Yrizar 2007, p. 543).
    Other Mexican states within the range of the pygmy-owl show similar 
potential for habitat loss. For example, in Tamaulipas, area under 
irrigation increased from 174,400 to 494,472 ha (431,000 to 1.22 
million ac) between 1998 and 2004, with an area of 668,872 ha (1.65 
million ac) equipped for irrigation. However, agricultural development 
in the States of Colima, Jalisco, Nayarit, and Nuevo Leon had 
substantial decreases in the amount of irrigated lands over the same 
period (FAO 2007, unpaginated). Although land continues to be converted 
to agriculture within the geographic range of the pygmy-owl, we do not 
know if the areas being converted currently support pygmy-owl habitat. 
Continuing destruction of pygmy-owl habitat for agricultural production 
is not occurring with the same intensity throughout the range of the 
pygmy-owl, and the area in agricultural production may be declining in 
some parts of its southern range.
    Wood harvesting is also a potential threat to pygmy-owl habitat. 
Ironwood (Olneya tesota) and mesquite (Prosopis spp.) are harvested 
throughout the Sonoran Desert for use as charcoal, fuelwood, and 
carving (Burquez and Martinez Yrizar 2007, p. 545). For instance, by 
1994, 202,000 ha (500,000 ac) of mesquite had been cleared in northern 
Mexico to meet the growing demand for mesquite charcoal (Haller 1994, 
p. 1). Unfortunately, woodcutters

[[Page 72555]]

and charcoal makers utilize large, mature mesquite and ironwood trees 
growing in riparian areas (Taylor 2006, p. 12), which is the tree class 
that is of most value as pygmy-owl habitat. Loss of leguminous trees 
results in long-term effects to the soil as they add organic matter, 
fix nitrogen, and add sulfur and soluble salts, affecting overall 
habitat quality and quantity (Rodriguez Franco and Aguirre 1996, p. 6-
47). Ironwood and mesquite trees are important nurse species for 
saguaros, the primary nesting substrate for pygmy-owls in the northern 
portion of their range (Burquez and Quintana 1994, p. 11). Declining 
tree populations in the Sonoran Desert as a result of commercial uses 
and land conversion threatens other plant species and may alter the 
structure and composition of the vertebrate and invertebrate 
communities as well (Bestelmeyer and Schooley 1999, p. 644). This has 
implications for pygmy-owl prey availability because pygmy-owls rely on 
a seasonal diversity of vertebrate and invertebrate prey species; loss 
of tree structure and diversity reduces prey diversity and 
availability.
    Once common in areas of the Rio Grande delta, significant habitat 
loss and fragmentation due to woodcutting have now caused the pygmy-owl 
to be a rare occurrence in this area of Texas. Oberholser (1974, p. 
452) concluded that agricultural expansion and subsequent loss of 
native woodland and thornscrub habitat, begun in the 1920's, preceded 
the rapid demise of pygmy-owl populations in the Lower Rio Grande 
Valley of southern Texas. Because much of the suitable pygmy-owl 
habitat in Texas occurs on private ranches, habitat areas are subject 
to potential impacts that are associated with ongoing ranch activities 
such as grazing, herd management, fencing, pasture improvements, 
construction of cattle pens and waters, road construction, and 
development of hunting facilities. Brush clearing, in particular, has 
been identified as a potential factor in present and future declines in 
the pygmy-owl population in Texas (Oberholser 1974, p. 452). However, 
relatively speaking, the current loss of habitat is much reduced in 
comparison to the historical loss of habitat in Texas. Conversely, 
ranch practices that enhance or increase pygmy-owl habitat to support 
ecotourism can contribute to conservation of the pygmy-owl in Texas 
(Wauer et al. 1993, p. 1076). The best available information does not 
indicate that current ranching practices are significantly affecting 
pygmy-owl habitat in Texas.
    Habitat fragmentation in northeastern Mexico is extensive, with 
only about two percent of the ecoregion remaining intact, and no 
habitat blocks larger than 250 square km (96.5 square mi), and no 
significant protected areas (Cook et al. 2000, p. 4). Fire is often 
used to clear woodlands for agriculture in this area of Mexico, and 
many of these fires are not adequately controlled. There may be fire-
extensive related effects to native plant communities (Cook et al. 
2000, p. 4); however, there is no available information of how much 
area may be affected by this activity.
    Areas of dry subtropical forests, important habitat for pygmy-owls 
in southwestern Mexico, have been used by humans through time for 
settlement and various other activities (Trejo and Dirzo 2000, p. 133). 
The long-term impact of this settlement has converted these dry 
subtropical forests into shrublands and savannas lacking large trees, 
columnar cacti, and cover and prey diversity that are important pygmy-
owl habitat elements. In Mexico, dry tropical forest is the major type 
of tropical vegetation in the country, covering over 60 percent of the 
total area of tropical vegetation. About 8 percent (approximately 
160,000 square km (61,776 square mi)) of this forest remained intact by 
the late 1970s, and an assessment made at the beginning of the present 
decade suggested that 30 percent of these tropical forests have been 
altered and converted to agricultural lands and cattle grasslands 
(Trejo and Drizo 2000, p. 134). However, the best available information 
indicates that there are still expanses of dry tropical forest along 
the Pacific coast in Mexico, including some areas below 1,200 m (4,000 
ft) where pygmy-owls are found.
Summary of Habitat Loss and Fragmentation
    In summary, pygmy-owls require habitat elements such as mature 
woodlands that include appropriate cavities for nest sites, adequate 
structural diversity and cover, and a diverse prey base. These habitat 
elements need to be available across the geographic range of the pygmy-
owl and spatially arranged to allow connectivity between habitat 
patches. Pygmy-owl habitat loss and fragmentation are affecting pygmy-
owl viability throughout its range. These threats vary in scope and 
intensity throughout the pygmy-owl's geographic range and specific 
threats are a more significant issue in certain parts of the range than 
in others. For example, in Arizona and Northern Sonoran, pygmy-owl 
habitat loss and fragmentation resulting from urbanization, changing 
fire regimes due to the invasion of buffelgrass, and agricultural 
development and woodcutting are significant threats that have 
negatively affected pygmy-owl habitat. In Texas, historical loss of 
habitat has reduced the pygmy-owl range, but current impacts are 
reduced from historical levels in their magnitude and severity. 
However, in Texas and other areas of the pygmy-owl's range, these past 
impacts continue to affect the current extent of available pygmy-owl 
habitat, because of the extended time it takes for these lands to 
recover. Therefore, even if habitat destruction ceases, the negative 
effects of past land use are expected to continue in many of these 
areas into the future.
    For the remainder of the pygmy-owl's range and habitat in Mexico 
(northeastern Mexico and south of Sonora), data available for our 
analysis were limited. The rate of growth in these southern Mexican 
States appears to be lower than in Sonora and the Arizona border 
region. Historical loss of pygmy-owl habitat in northeastern Mexico has 
occurred, but the extent to which significant habitat destruction is 
currently taking place is not available. In addition, pygmy-owls are 
still considered common in the southern part of their range (Enriquez-
Rocha et al. 1993, p. 154; Cartron et al. 2000, p. 5; GBIF 2020).
    This information indicates that the impacts to pygmy-owl habitat 
discussed herein may be having different levels of effects on the 
populations of pygmy-owls throughout their range, and habitat effects 
may not have the impacts to pygmy-owl population groups in the southern 
portion of the pygmy-owl's range due to increased pygmy-owl numbers. 
Nonetheless, Enr[iacute]quez and Vazquez-Perez (2017, p. 546) indicate 
that during the last 50 years, Mexico has seen drastic changes in land 
uses due to rapid urbanization and industrialization, which has been 
poorly planned. The result has been impacts to the natural environment, 
including the degradation and loss of biological diversity in Mexico. 
There has been limited work in Mexico, however, to understand what the 
direct impacts of these threats are on owl population losses and 
changes in distribution and abundance of subspecies in long term 
(Enr[iacute]quez and Vazquez-Perez 2017, p. 546).
Climate Change and Climate Conditions
    Climate change projections within the geographic range of the 
pygmy-owl show that increasing temperatures, decreasing precipitation, 
and increase intensity of weather events are likely

[[Page 72556]]

(Karmalkar et al. 2011, entire; Bagne and Finch 2012, entire; Coe et 
al. 2012, entire; and Jiang and Yang 2012, entire). Climate influences 
pygmy-owl habitat conditions and availability through the loss of 
vegetation cover, reduced prey availability, increased predation, 
reduced nest site availability, and vegetation community change. The 
majority of the current range of the pygmy-owl occurs in tropical or 
subtropical vegetation communities, which may be reduced in coverage if 
climate change results in hotter, more arid conditions. Additionally, 
models predict that the distribution of suitable habitat for saguaros, 
the primary pygmy-owl nesting substrate within the Sonoran Desert 
ecoregion, will substantially decrease over the next 50 years under a 
moderate climate change scenario (Weiss and Overpeck 2005, p. 2074; 
Thomas et al. 2012, p. 43). Climate change scenarios project that 
drought will occur more frequently and increase in severity, with a 
decrease in the frequency and increase in severity of precipitation 
events (Seager et al. 2007, p. 9; Cook et al. 2015, p. 6; Pascale et 
al. 2017, p. 806; Williams et al. 2020, p. 317). Drought and changes to 
the timing and intensity of precipitation events may reduce available 
cover and prey for pygmy-owls adjacent to riparian areas through 
scouring flood events and reduced moisture retention. Although the 
extent to which changing climatic patterns will affect the pygmy-owl is 
better understood following the past decade of observations in the 
field, there remains uncertainty with regard to the overall extent and 
timing of impacts.
    Synergistic interactions are likely to occur between the effects of 
climate change and habitat fragmentation and loss. Climate change 
projections indicate that conditions will likely favor increased 
occurrence and distribution of nonnative, invasive species and 
alteration of historical fire regimes. Climate change may also affect 
the viability of the pygmy-owl through precipitation-driven changes in 
plant and insect biomass, which in turn influence abundance of lizards, 
small mammals, and birds (Jones 1981, p. 111; Flesch 2008, p. 5; Flesch 
et al. 2015, p. 26). Decreased precipitation generally reduces plant 
cover and insect productivity, which in turn reduce the abundance and 
availability of pygmy-owl prey species. Similarly, increased 
temperatures reduce pygmy-owl prey activity due to increased energetic 
demands of thermoregulation and a decreased availability of prey and 
cover (Flesch et al. 2015, p. 26). These indirect effects on prey 
availability and direct effects on prey activity affect nestling 
growth, development, and survival. When decreased precipitation affects 
food supply and increased temperature affects prey activity, reduced 
pygmy-owl productivity is likely to result in reduced pygmy-owl 
resiliency (Flesch et al. 2015, p. 26). Climate change can also 
influence natural events, such as hurricanes and tropical storms, which 
can modify and fragment habitats, primarily through loss of woody 
cover. Historical and ongoing threats to the pygmy-owl from habitat 
loss and fragmentation as well as from climate change and climate 
conditions, have shaped the current habitat and population conditions 
of the subspecies throughout its range.

Current Condition

    To assess resiliency, we evaluated six components that broadly 
related to the subspecies' population demography or physical 
environment and for which we had data sufficient to conduct the 
analysis. We assessed each analysis unit's physical environment by 
examining three components determined to have the most influence on the 
subspecies: Habitat intactness, prey availability, and vegetation 
health and cover. We also assessed each analysis unit's demography 
through abundance, occupancy, and evidence of reproduction. We 
established parameters for each component by evaluating the range of 
existing data and separating those data into categories based on our 
understanding of the subspecies' demographics and habitat. Using the 
demographic and habitat parameters, we then categorized the overall 
condition of each analysis unit. We provide a summary of each of the 
six factors below and describe them in detail in the SSA report 
(Service 2021, entire).
Demographic Factors
    Abundance: Larger populations have a lower risk of extinction than 
smaller populations (Pimm et al. 1988, pp. 773-775; Trombulak et al. 
2004, p. 1183). In contrast, small populations are less resilient and 
more vulnerable to the effects of demographic, environmental, and 
genetic stochasticity, and have a higher risk of extinction than larger 
populations (Trombulak et al. 2004, p. 1183). Small populations may 
experience increased inbreeding, loss of genetic variation, and 
ultimately a decreased potential to adapt to environmental change 
(Trombulak et al. 2004, p. 1183; Harmon and Braude 2010, p. 125; Benson 
et al. 2016, pp. 1-2). The abundance of pygmy-owls within each analysis 
unit must be high enough to support persistence of pygmy-owl population 
groups (multiple breeding pairs of pygmy-owls within relatively 
discrete geographic areas) within the analysis unit. This is 
accomplished by having adequate patches of habitat to support multiple 
nesting pairs of pygmy-owls and their offspring, have adequate habitat 
connectivity to support establishment of additional territories by 
dispersing young, and supply floaters (unpaired individuals of breeding 
age) within each pygmy-owl population group to offset loss of breeding 
adults and to provide potential mates for dispersing juveniles.
    Occupancy: Sufficiently resilient pygmy-owl populations must occupy 
large enough areas such that stochastic events and environmental 
fluctuations that affect individual pygmy-owls, or population group of 
pygmy-owls, do not eliminate the entire population. Pygmy-owls are 
patchily distributed across the landscape in population groups of 
nesting owls. Each of these population groups must be occupied by large 
enough numbers of pygmy-owls to enable the population group to persist 
on the landscape over time. Enough occupied population groups of pygmy-
owls must also exist on the landscape, with interconnected habitat 
supporting movement among population groups, so that each population 
group can receive or exchange individuals with any given adjacent 
population group.
    Pygmy-owl occupancy is an indicator of habitat conditions as well 
as demographic factors, such as reproduction and survival. Habitats 
that support large numbers of pygmy-owls are better able to provide 
floaters and available mates to dispersing pygmy-owls from adjacent 
populations. These floaters are able to serve as replacement breeders 
if either or both members of an existing breeding pair are lost. 
Observations indicate that if a site is occupied by a breeding pair, 
they will breed. Survival of adults also affects occupancy, as some 
occupied sites will be abandoned if one of the adult breeders perishes. 
These sites can be reoccupied in the future when floaters or dispersing 
birds move into the area.
    Evidence of reproduction: Resilient pygmy-owl populations must also 
reproduce and produce a sufficient number of young such that 
recruitment equals or exceeds mortality. Current population size and 
abundance reflects previous influences on the population and habitat, 
while reproduction and recruitment reflect population trends that may 
be stable, increasing, or decreasing in the future. Adequately 
resilient populations of the pygmy-owl must have sufficient numbers of

[[Page 72557]]

individuals to replace members of breeding pairs that have been lost 
and to support persistent population groups of nesting pygmy-owls 
through dispersal. However, the necessary reproductive rate needed for 
a self-sustaining population is unknown. Additionally, key demographic 
parameters of pygmy-owl populations (e.g., survival, life expectancy, 
lifespan, productivity, etc.) are unknown throughout most of the 
geographic range. Due to the lack of information on demographic 
parameters of reproduction, recruitment, and survival, we broadly 
considered evidence of reproduction to include any evidence of 
reproduction (e.g., active nests, presence of eggs or nestlings, 
fledglings, etc.), as well as persistence of occupied territories and 
population groups in an area over a sufficient amount of time to 
indicate evidence of reproduction. Thus, evidence of reproduction on a 
consistent basis over time likely indicates a sufficiently resilient 
population.
    Habitat intactness: Adequately resilient pygmy-owl populations need 
intact habitat that is large enough to support year-round occupancy, as 
well as connectivity between habitat patches to enable dispersal. 
Pygmy-owls are patchily distributed across much of their geographic 
range. These pygmy-owl population groups are dependent on interchange 
of individuals in order to maintain adequate numbers and genetic 
diversity on the landscape. Habitat connectivity is crucial to 
maintaining pathways for the interchange of individuals among pygmy-owl 
population groups.
    Prey availability: Adequate prey availability is a key component 
for maintaining resiliency in pygmy-owl populations. Year-round prey 
availability is essential throughout the range of the pygmy-owl, with 
portions of the geographic range characterized by seasonal variability 
in available prey resources. The abundance of many of these prey 
species is influenced by annual and seasonal precipitation through 
increases and decreases in vegetation cover and diversity, which also 
influences insect abundance and availability. Sufficiently resilient 
pygmy-owl populations require adequate precipitation to support year-
round prey availability. This includes appropriately timed 
precipitation to support seasonally available prey such as lizard, 
insects, and small mammals.
    Vegetation cover: Sufficiently resilient pygmy-owl populations 
require adequate vegetation to provide cover for predator avoidance, 
thermoregulation, hunting, and nest cavities. Of primary importance for 
cover is the presence of woody vegetation canopy. Maintenance of the 
health and vigor of this woody cover is a key component to maintaining 
resiliency of pygmy-owl populations.
Summary of Current Condition of the Subspecies
    Currently, the cactus ferruginous pygmy-owl occurs from southern 
Arizona, south to Michoac[aacute]n in the western portion of its range, 
and from southern Texas to Tamaulipas and Nuevo Leon in the eastern 
portion of its range. For our analysis, we divided the pygmy-owl's 
overall range into five analysis units: Arizona, northern Sonora, 
western Mexico, Texas, and northeastern Mexico (see Figure 1, below). 
The primary factors currently affecting the condition of cactus 
ferruginous pygmy-owl populations include climate conditions, and 
habitat fragmentation and loss.
Resiliency
    The Arizona analysis unit currently has the lowest pygmy-owl 
abundance of all analysis units, which is estimated to be in the low 
hundreds. Habitat fragmentation and loss from urbanization and 
increases in invasive species such as buffelgrass, have reduced the 
availability and connectivity of habitat in this analysis unit. 
Additionally, climate conditions have reduced prey availability and 
vegetative cover through increased temperatures and drought. These 
factors result in a reduced capacity for this analysis unit to 
withstand stochastic events and result in a low resiliency currently.
    The northern Sonora analysis unit has an estimated pygmy-owl 
abundance in the high hundreds. However, this analysis unit is affected 
by habitat fragmentation from urbanization, agricultural development, 
and associated infrastructure. These stressors increase water use and, 
in conjunction with climate conditions, result in a reduction in the 
quality and availability of pygmy-owl habitat. Due to moderate owl 
abundance and some decrease in habitat availability and connectivity, 
the northern Sonora analysis unit has a moderate level of population 
resiliency.
    The western Mexico analysis unit is estimated to have tens of 
thousands of pygmy-owls. This analysis unit has some habitat 
fragmentation from urbanization, agricultural development, and 
deforestation of the tropical deciduous forests. Overall, the western 
Mexico analysis unit has high population resiliency due to high 
abundance of pygmy-owls and healthy vegetation cover, likely as a 
result of high levels of precipitation in the region.
    The Texas analysis unit has an estimated pygmy-owl abundance in the 
high hundreds. Land ownership within this analysis unit has resulted in 
habitat fragmentation and, due to agricultural development and wood 
harvesting within the Rio Grande Valley, this analysis unit is somewhat 
genetically isolated from the rest of the geographic range of the 
subspecies. Due to moderate pygmy-owl abundance, fragmentation of 
habitat, and some genetic isolation, the Texas analysis unit has a 
moderate level of population resiliency.
    The northeast Mexico analysis unit is estimated to have tens of 
thousands of pygmy-owls. However, this unit has high levels of habitat 
fragmentation due to urbanization and agricultural development. 
Overall, the northeast Mexico analysis unit has a moderate level of 
population resiliency with some capacity to withstand stochastic 
events. Rangewide, current condition of the pygmy-owl populations 
indicate that three analysis units are maintaining a moderate level of 
population resiliency, one analysis has low resiliency, and one 
analysis unit has high resiliency.
Representation
    Resiliency, and the factors that drive resiliency, also contribute 
to the pygmy-owl's representation on the landscape. Pygmy-owls occupy a 
diversity of habitat types throughout the geographic range of the 
subspecies and maintain substantial genetic diversity. The subspecies' 
adaptive potential (representation) is currently high due to genetic 
and ecological variability across the range. There is substantial 
genetic diversity across the range (Proudfoot et al. 2006a, entire; 
2006b, entire) due to isolation-by-distance and geographic barriers. 
Additionally, across the range, the pygmy-owl occupies a diverse range 
of ecological settings as a result of geographic gradients of 
vegetation, climate, elevation, topography, and other landscape 
elements. Such ecological diversity could help the pygmy-owl adapt to 
and survive future environmental changes, such as warming temperatures 
or decreased precipitation from climate change.
Redundancy
    We assessed the number and distribution of populations across the 
pygmy-owl's geographic range as a measure of its redundancy. While the 
numbers and densities of pygmy-owls are lower in some analysis units, 
these portions of the range still contribute in

[[Page 72558]]

a meaningful way to the overall pygmy-owl population. Each analysis 
unit within the geographic range of the subspecies maintains a network 
of population groups that are connected both within and between 
analysis units. These population groups have the potential to 
recolonize areas where other population groups are lost to catastrophic 
events. All analysis units contribute to the total rangewide 
population, and population groups within each analysis unit provide 
population support for that analysis unit and adjacent portions of the 
range. If an analysis unit is self-sustaining, it provides redundancy 
across the range, and may provide emigrants to support adjacent 
analysis units. Research and monitoring have documented exchange of 
individual cactus ferruginous pygmy-owls among population groups within 
the Arizona, northern Sonora, and Texas analysis units, and between the 
Arizona and northern Sonora analysis units (Abbate et al. 2000, p. 30; 
Flesch and Steidl 2007, p. 37; Proudfoot et al. 2020, unpaginated; AGFD 
unpublished data). Habitat fragmentation and reduced vegetation health 
as a result of ongoing drought have resulted in the extirpation of 
population groups in Arizona and Texas, but redundancy was exhibited in 
the northern Sonora analysis unit when drought conditions eased and 
historically occupied areas were reoccupied (Flesch et al. 2017, p. 
12). Despite existing habitat fragmentation, research and monitoring 
have documented that exchange of individual pygmy-owls between 
population groups and between some analysis units is still occurring. 
Habitat types used by pygmy-owls vary across the range, with some 
vegetation types being restricted to certain portions of the geographic 
range. It is important to maintain pygmy-owl populations throughout the 
range to provide redundancy to adjacent populations in similar habitat 
conditions. Due to the broad geographic distribution and network of 
populations groups that are connected within and between some analysis 
units throughout most of its range, the pygmy-owl has some ability to 
recolonize following catastrophic events and is considered to have 
adequate redundancy.
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Future Scenarios

    In our SSA report, we defined viability as the ability of a species 
to sustain populations in the wild over time. To help address 
uncertainty associated with the degree and extent of potential future 
stressors and their impacts on species' needs, the concepts of 
resiliency, redundancy, and representation were assessed using three 
plausible future scenarios. We developed these scenarios by identifying 
information on the following primary factors anticipated to affect the 
cactus ferruginous pygmy-owl in the future: Climate change, habitat 
loss and fragmentation, and conservation activity. The three scenarios 
capture the range of uncertainty in the changing landscape and how the 
pygmy-owl

[[Page 72560]]

would respond to the changing conditions. We used the best available 
data and models to project out 30 years into the future (i.e., 2050).
    We chose this timeframe based on the subspecies' life span and 
observed cycles in population abundance, as well as the time period 
where we could reasonably project certain land use changes and 
urbanization patterns relevant to the pygmy-owl and its habitat. The 
majority of the projections of urbanization and population growth 
within the geographic range of the pygmy-owl extend to 2050. Since 
urbanization and development are some of the primary drivers of habitat 
loss and fragmentation, we extended our analysis only as far as we 
could reasonably project these changes and the species response to 
those changes. Additionally, the average lifespan of a pygmy-owl is 3 
to 5 years. Thus, over a 30-year timeframe, we would expect eight to 
ten generations of pygmy-owls to be produced which should be adequate 
to assess the effects of both threats and conservation actions. Because 
the primary avenue through which pygmy-owls move across the landscape 
is through the dispersal of juveniles, it can take multiple generations 
to provide adequate exchange of individuals to elicit detectable change 
at the population group and analysis unit scale. Including multiple 
generations of pygmy-owls also allows adequate time to account for lags 
in demographic factors resulting from changes in environmental 
conditions. Therefore, this number of generations is sufficient to 
assess the effective levels of resiliency, redundancy and 
representation. Monitoring of pygmy-owl occupancy and productivity also 
indicates that, at least in Arizona and northern Sonora, 30 years was 
an adequate time period to document abundance cycles driven by climate 
conditions. Monitoring in both Arizona and northern Sonora from the 
mid-1990s to present showed a period of decline in occupancy and 
productivity, primarily due to drought, followed by an increase in 
productivity and occupancy during years of better precipitation such 
that abundance and occupancy recovered to nearly the original levels 
(Flesch et al. 2017, p. 12; Service 2021, entire). For more information 
on the models and their projections, please see the SSA report (Service 
2021, entire).
    Under Scenario 1 (continuation of current trends), we projected 
there would be no significant changes to the rate of habitat loss and 
fragmentation within the subspecies' range. For this scenario, we 
considered that climate change would track Representative Concentration 
Pathway (RCP) 4.5, which is one of four alternative trajectories for 
carbon dioxide emissions set forth by the International Panel on 
Climate Change. Specifically, RCP4.5 is an intermediate scenario where 
carbon dioxide emissions continue to increase through the mid-21st 
century, but then decline. This scenario would result in atmospheric 
carbon dioxide levels between 580 and 720 parts per million (ppm) 
between 2050 and 2100 and would represent an approximately 2.5 [deg]C 
increase in global mean temperature relative to the period 1861-1880 
(IPCC 2014, p. 9). We also considered that conservation efforts that 
are currently underway, such as captive rearing, would continue to be 
limited in their efficacy, due to limited resources and the continued 
efforts to identify appropriate and effective methodologies and 
protocols. Additionally, climate change will continue to affect the 
suitability of conditions at release sites for captive-reared pygmy-
owls, potentially limiting the effectiveness of pygmy-owl releases.
    Under these conditions, we do not anticipate that any of the 
factors used to evaluate resiliency would improve and, in fact, 
vegetation intactness would be reduced due to continued development. 
Northeastern Mexico is projected to maintain its current level of high 
pygmy-owl abundance because significant changes to habitat conditions 
are not expected. Because of this, the northeastern Mexico analysis 
unit is expected to maintain a moderate level of population resiliency 
under this scenario. Conditions in the Arizona analysis unit would 
continue to decline due to continued habitat fragmentation and climate 
change, and resiliency would remain low. Resiliency in the remaining 
three analysis units, northern Sonora, western Mexico, and Texas, would 
decline due to continued loss of cactus ferruginous pygmy-owl habitat, 
reduced habitat intactness, and a reduction in cover and prey 
availability for cactus ferruginous pygmy-owls. Overall, current levels 
of population redundancy and representation would be maintained 
rangewide because all analysis units would remain occupied; however, 
representation within each analysis unit would likely decline at the 
population-group scale.
    Under Scenario 2 (worsening or increased effects scenario), we 
projected increased rates of habitat loss and fragmentation leading to 
a decline in pygmy-owl habitat conditions. For this scenario, we 
considered that climate change would track RCP8.5, which is the highest 
greenhouse gas emission scenario. Under this scenario, atmospheric 
carbon dioxide concentrations are projected to exceed 1,000 ppm between 
2050 and 2100 and would represent a 4.5 [deg]C increase in global mean 
temperature (IPCC 2014, p. 9). We also considered that conservation 
efforts that are currently underway would not be effective or would not 
be implemented.
    Increased habitat loss and fragmentation would result in the 
greatest effect to overall resiliency through a reduction in abundance 
and occupancy of pygmy-owls. Increased development and urbanization 
would result in a permanent loss of habitat. Indirect effects to 
vegetation and prey availability as a result of climate change would 
also be expected. Due to increased habitat fragmentation, such as 
agricultural development, as well as a reduction in vegetation health 
from drought, resiliency in the western Mexico analysis unit is 
projected to decline. Under this scenario, climate change and increased 
habitat fragmentation from urbanization and agricultural development 
lead to the loss of some population groups within the Texas, Arizona, 
and northern Sonora analysis units. The resultant decline would 
decrease representation and redundancy within these analysis units. In 
particular, the Texas and Arizona analysis units would become more 
vulnerable to extirpation because of low pygmy-owl abundance and 
occupancy driven by reduced habitat quality as a result of drought and 
high levels of habitat fragmentation from ongoing urbanization and 
agricultural development. Genetic representation would be reduced 
through the loss of population groups or analysis units and the 
subsequent reduction of gene flow. Overall, there would be a reduction 
in resiliency, representation, and redundancy within most analysis 
units and the likelihood of maintaining long-term viability would be 
considerably reduced.
    Under Scenario 3 (improving or reduced effects scenario), we 
project that habitat loss and fragmentation would continue, but at a 
reduced rate. For this scenario, we considered that climate change 
would track RCP4.5, and conservation efforts that are currently 
underway would be effective. We did not include other planned 
conservation efforts in this scenario because we are not aware of any 
that would significantly influence the viability of the species.
    Despite effective conservation actions in portions of the range, 
the viability of pygmy-owl populations would continue to decline within 
all five analysis units

[[Page 72561]]

due to the ongoing effects of habitat loss, fragmentation, and climate 
change. Resiliency would remain low in the Arizona analysis unit and 
would decline in both the northern Sonora and western Mexico analysis 
units due to a reduction in habitat quality as a result of climate 
change. Pygmy-owl habitat fragmentation from urbanization, 
deforestation, and agricultural development are expected to continue 
under this scenario, though at a slower rate. Resiliency would remain 
in moderate condition for the Texas and northeastern Mexico analysis 
units. Although habitat conditions are expected to continue to decline 
due to drought and climate change, we do not expect a large decline in 
pygmy-owl occupancy and abundance in Texas and northeastern Mexico. 
Under this scenario, each analysis unit remains occupied and 
contributes to the representation and redundancy across the range of 
the pygmy-owl. However, within each analysis unit, threats continue, 
albeit at a reduced rate, and the resiliency of population groups would 
decline in three of the five analysis units. Thus, within analysis 
units, representation and redundancy is likely to decrease at the 
population-group scale.
Cumulative Effects
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the subspecies, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the subspecies. To assess the current 
and future condition of the subspecies, we undertake an iterative 
analysis that encompasses and incorporates the threats individually and 
then accumulates and evaluates the effects of all the factors that may 
be influencing the subspecies, including threats and conservation 
efforts. Because the SSA framework considers not just the presence of 
the factors, but to what degree they collectively influence risk to the 
entire subspecies, our assessment integrates the cumulative effects of 
the factors and replaces a standalone cumulative effects analysis.

Conservation Efforts and Regulatory Mechanisms

    Because we are considering the best available information and 
because the discussion above primarily addresses the viability of the 
cactus ferruginous pygmy-owl in relation to the threats and factors 
affecting its viability, here we will discuss regulatory mechanisms and 
conservation actions that potentially have or will influence the 
current and future viability of the cactus ferruginous pygmy-owl.
Federal Protections
    Although the pygmy-owl in Arizona is considered nonmigratory, it is 
included on the list of birds protected under the Migratory Bird Treaty 
Act (MBTA) (16 U.S.C. 703-712). The MBTA prohibits ``take'' of any 
migratory bird. However, unlike the Endangered Species Act, there are 
no provisions in the MBTA preventing habitat destruction unless direct 
mortality or destruction of an active nest occurs. Approximately 31 
percent of the pygmy-owl's historical geographic range in the United 
States is federally owned, with Federally-owned lands making up 
approximately 40 percent of pygmy-owl habitat in Arizona. However, a 
substantial extent of the known currently occupied habitats occur on 
State Trust lands in Arizona and on private lands in Texas. Other 
Federal regulations and policies such as the Clean Water Act (33 U.S.C. 
1251 et seq.), the military's integrated natural resources management 
plans (INRMPs, such as the one for the Barry M. Goldwater Range) (Uken 
2008, pers. comm.), and National Park Service policy provide varying 
levels of protection, but they have not been effective in protecting 
the pygmy-owl from further decline in Arizona. As a result of the 
implementation of the 2005 Real ID Act (Division B of Pub. L. 109-13), 
the U.S. Department of Homeland Security (DHS) has waived application 
of the Act and other environmental laws in the construction of border 
infrastructure, including areas occupied by the pygmy-owl (73 FR 5272; 
January 29, 2008). As recently as 2020, DHS waived environmental 
compliance for the construction of border walls along the U.S.-Mexico 
border in Arizona and Texas (Fischer 2019, entire; USCBP 2020, entire). 
Consequently, pygmy-owl habitat has been lost and fragmented along most 
of the border area in Arizona and, to a lesser extent, Texas. Of 
particular concern is the potential for border infrastructure to reduce 
habitat connectivity into occupied pygmy-owl habitat in Mexico.
State Protections
    The pygmy-owl is included on the State of Arizona's list of species 
of concern (AGFD 2021, p. 16). Arizona statute does not address the 
root causes leading to destruction or alteration of pygmy-owl habitat. 
The State of Texas lists the pygmy-owl as threatened (Texas 
Administrative Code, title 31, part 2, chapter 65, subchapter G, rule 
65.175; TPWD 2009, p. 1). This designation allows permits to be issued 
for the taking, possession, propagation, transportation, sale, 
importation, or exportation of pygmy-owls if necessary to properly 
manage that species, but does not provide any habitat protections 
(Texas Park and Wildlife Code, chapter 67, section 67.0041).
Protections in Mexico
    Within Mexico, the distribution of owls is large and includes 
multiple States. The administration of land use in Mexico depends on 
the national government, which implements Natural Protected Areas and 
other Federal programs, and also the policies of each State and even 
municipal governments (Enr[iacute]quez 2021, pers. comm.). This system 
represents a wide range of management, conservation, and natural 
resource use approaches that affect pygmy-owl conservation, resulting 
in inconsistent policies and implementation of conservation activities. 
Similar to state laws in the United States, there are currently no laws 
or regulations in Mexico that specifically protect pygmy-owls and 
pygmy-owl habitat. As is the case throughout the geographic range of 
the pygmy-owl, with so many entities involved in how lands in Mexico 
are used and managed, it is complicated and, sometimes, unrealistic to 
implement widespread, consistent application of regulations that 
promote the conservation of pygmy-owls in Mexico.
Conservation Efforts
    Cactus ferruginous pygmy-owl conservation activities have occurred 
sporadically over the past three decades in both the United States and 
in northern Sonora in Mexico. Initial conservation efforts developed 
effective and safe protocols for studying the cactus ferruginous pygmy-
owl and on gathering basic life-history information. Efforts expanded 
in the late 1990s and early 2000s to include important pygmy-owl work 
in Arizona, Texas, and northern Sonora. For the past two decades, 
studies have been irregular and focused on monitoring of known 
territories.
Surveying and Monitoring
    The Arizona Game and Fish Department (AGFD) initiated surveys to 
determine the extent of cactus ferruginous pygmy-owl occurrences in 
Arizona in 1992, when the cactus ferruginous pygmy-owl was first

[[Page 72562]]

petitioned to be listed under the Act. Survey and monitoring work by a 
variety of entities continued through 2006, when the species was 
delisted. Prior to delisting, survey and monitoring efforts were 
focused in Pima and Pinal Counties to document the occupancy pattern of 
cactus ferruginous pygmy-owls in areas of land use changes, primarily 
urban development. After the pygmy-owl was delisted in 2006, a small 
number of monitoring surveys continued to be conducted by Service and 
AGFD biologists. In 2020, AGFD coordinated a comprehensive survey 
effort, with the help of numerous partners, to gather data on the 
current numbers and distribution of the cactus ferruginous pygmy-owl in 
Arizona to inform this listing decision. Specifically, this effort 
included surveys to document distribution, territory occupancy 
monitoring, and some nest searches to document reproduction. This 
latest effort provided data on current distribution of the pygmy-owl in 
Arizona and the number of occupied territories, as well as some 
information on the number of active nesting territories (AGFD 2020, 
pers. comm.). These data are incorporated into the SSA report. However, 
these efforts did not provide any information on productivity or 
survival at these sites.
Nest Box Trials
    Because cactus ferruginous pygmy-owls are secondary cavity nesters, 
the number of available cavities may influence the viability of cactus 
ferruginous pygmy-owls on the landscape (Proudfoot 1996, p. 68). Using 
nest boxes as a management tool may enhance the viability of cactus 
ferruginous pygmy-owls by increasing cavity availability and reducing 
predation. Nest boxes also enhance access to the owls during nesting 
and facilitate our ability to conduct research. Research in Texas 
demonstrated successful use of artificial nest structures by cactus 
ferruginous pygmy-owls (Proudfoot et al. 1999, pp. 5-6). In response to 
concerns about cavity availability, two nest box trials were conducted 
in Arizona in 1998 and 2006. No cactus ferruginous pygmy-owls used the 
nest boxes in these studies, but low cavity availability was confirmed 
based on high use of the nest boxes by other species, including screech 
owls. No additional nest box studies have been undertaken in Arizona, 
and the nest box study in Texas is no longer active.
Captive Breeding and Population Augmentation
    A pygmy-owl captive-breeding feasibility study was initiated by the 
AGFD in partnership with the Wild at Heart raptor care facility in Cave 
Creek, Arizona, in 2006. Since then, Wild at Heart has been researching 
and testing protocols for a managed breeding program for cactus 
ferruginous pygmy-owls. In 2017, the Phoenix Zoo became the second 
captive breeding site for pygmy-owls in Arizona and part of the managed 
breeding program when it entered into partnership with the Service and 
the AGFD. Both the AGFD and the Service oversee this program.
    The goal of the managed breeding program for the cactus ferruginous 
pygmy-owl is to develop appropriate protocols for the husbandry and 
breeding of captive pygmy-owls to provide individuals to augment 
existing population groups or establish new population groups in areas 
where suitable habitat exists in Arizona (AGFD 2015, entire). To date, 
these efforts have demonstrated: (a) Successful capture and transport 
of wild cactus ferruginous pygmy-owls; (b) safe, healthy, and stress-
free captive facilities; (c) the development of appropriate care, 
feeding, and maintenance protocols; (d) successful breeding; and (e) 
appropriate care and development of young-of-the-year birds. Three 
pilot releases of captive-bred pygmy-owls have been implemented since 
the inception of this program. This effort establishes the first formal 
captive-breeding for the subspecies and provides the groundwork for 
evaluation of this strategy in wild cactus ferruginous pygmy-owl 
population augmentation. These pilot releases have not resulted in the 
establishment of new pygmy-owl territories or population groups, but 
have contributed valuable information to developing appropriate release 
strategies and protocols to improve the potential for conservation 
benefits to the pygmy-owl in the future.
Conservation Planning
    When the pygmy-owl was listed previously, several municipalities 
located within current or historical pygmy-owl activity areas explored 
or implemented habitat conservation plans (HCPs) under the Act to 
address potential conflicts between development projects and 
requirements of the Act. These HCP plans included the Sonoran Desert 
Conservation Plan (Multi-Species Conservation Plan) developed by Pima 
County (Pima County 2016, entire), the Town of Marana HCP (Town of 
Marana 2009, entire), and the City of Tucson's Avra Valley (City of 
Tucson 2019, entire) and Southlands HCPs (City of Tucson 2013, entire). 
Each of these four HCP efforts identified the cactus ferruginous pygmy-
owl as one of the covered species within their plans. However, most of 
these plans have yet to be completed: To date, only the Pima County HCP 
has been completed and is being implemented. Pima County is currently 
conducting ongoing surveys and monitoring of pygmy-owl territories on 
county-managed lands and has set aside pygmy-owl habitat as part of 
their conservation lands system in compliance with their HCP. The 
establishment of these conservation lands is an important contribution 
to pygmy-owl conservation in Pima County, but continuing efforts are 
needed to address other threats such as habitat impacts from climate 
change. Pima County's efforts are expected to continue for the 30-year 
life of their permit (through 2046) and longer if the County renews the 
permit.
    Another ongoing conservation planning effort that has the potential 
to support pygmy-owl conservation in the Altar Valley of southern 
Arizona is the Altar Valley Watershed Management Plan. This plan being 
developed by the Altar Valley Conservation Alliance with numerous 
partners and participants builds upon existing efforts within the Altar 
Valley to restore and enhance the watershed. The plan will describe 
stewardship practices and identify a series of high-priority projects 
that maximize positive impacts on the land. While this planning effort 
has yet to be completed, projects related to watershed restoration have 
been implemented at three ranches in the Altar Valley. These projects 
have included one-rock dams and other structures to stabilize 
waterways, road grading to promote water harvesting, and enhancement of 
grasslands through invasive species control to promote infiltration and 
reduce runoff and sedimentation. These actions improve vegetation 
health through increased water infiltration and reduce loss of soil and 
vegetation due to erosion. Specific benefits occur to riparian 
vegetation along drainages enhancing pygmy-owl habitat conditions and 
connectivity.
    In Mexico, there are Federal, State, or municipal protected areas 
which comprise approximately 11 percent of the historical pygmy-owl 
range in Mexico. These areas can work well as conservation strategies 
for the cactus ferruginous pygmy-owl. There is now a new option for 
protected areas called Voluntary Conservation Areas ([Aacute]reas 
Destinadas Voluntariamente a la Conservaci[oacute]n; ADVA), which are 
areas identified for conservation. These ADVA could be a potential 
conservation strategy for the pygmy-owl in the future (Enr[iacute]quez 
2021, pers. comm.).

[[Page 72563]]

Determination of Cactus Ferruginous Pygmy-Owl's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an ``endangered species'' or 
a ``threatened species.'' The Act defines an ``endangered species'' as 
a species in danger of extinction throughout all or a significant 
portion of its range, and a ``threatened species'' as a species likely 
to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range. The Act requires 
that we determine whether a species meets the definition of an 
``endangered species'' or a ``threatened species'' because of any of 
the following factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.
Status Throughout All of Its Range
    We examined the following threats to the cactus ferruginous pygmy-
owl: Climate change and climate condition (Factor E), habitat loss and 
fragmentation (Factor A), human activities and disturbance (Factors B 
and E), human-caused mortality (Factors B and E), disease and predation 
(Factor C), and small population size (Factor E), and we determined 
that the primary threats to the subspecies are climate change and 
climate condition, and habitat loss and fragmentation. Existing 
regulatory mechanisms (Factor D) and conservation efforts do not 
address the threats to the cactus ferruginous pygmy-owl to the extent 
that listing the subspecies is not warranted.
    Population resiliency is highly variable across the range of the 
pygmy-owl. Overall, three analysis units maintain a moderate level of 
resiliency, with western Mexico maintaining a high level of resiliency 
and Arizona with a low level of resiliency. Therefore, the majority of 
the analysis units we examined maintain some ability to withstand 
stochastic events. Additionally, the western Mexico and northeast 
Mexico analysis units are estimated to support tens of thousands of 
pygmy-owls. Due to the broad geographic distribution and network of 
population groups that are connected within and between some analysis 
units throughout most of its range, the pygmy-owl has some ability to 
recolonize following catastrophic events and is considered to have 
adequate redundancy. Additionally, the cactus ferruginous pygmy-owl 
currently has high genetic and ecological variability across the range. 
This ecological diversity provides the subspecies with sufficient 
representation and may allow the pygmy-owl to adapt to, and survive, 
future environmental change.
    After evaluating threats to the subspecies and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we conclude that the risk factors acting on the cactus 
ferruginous pygmy-owl and its habitat, either singly or in combination, 
are not of sufficient imminence, intensity, or magnitude to indicate 
that the subspecies is in danger of extinction now (an endangered 
species) throughout all of its range. Despite current stressors, the 
subspecies currently maintains adequate resiliency, redundancy, and 
representation across the range such that the subspecies is currently 
able to withstand stochastic and catastrophic events and maintain 
adequate genetic and ecological variation throughout its range.
    However, our analysis of the cactus ferruginous pygmy-owl's future 
conditions shows that the threats to the subspecies are likely to 
continue into the future, resulting in continued loss and fragmentation 
of habitat putting the species at risk of extinction within the 
foreseeable future.
    Under all future scenarios, we project a continued reduction in 
species viability throughout the range of the subspecies due to climate 
change, habitat loss, and habitat fragmentation. In 30 years, even 
under our most optimistic scenario, the reduced effects scenario, there 
will be no analysis units in high condition. This represents a decrease 
from current conditions with one analysis unit declining from high to 
moderate condition, and one analysis unit declining from moderate to 
low condition. Additionally, despite maintaining their current 
condition categories over the next 30 years, habitat and demographic 
conditions within the other three analysis units continue to decline. 
Over the next 30 years, many of the analysis units will become 
increasingly vulnerable to extirpation through the degradation of 
habitat conditions. We anticipate that urbanization and development 
will continue under all future scenarios and in all analysis units. 
Invasive species will continue to spread into pygmy-owl habitat in most 
analysis units and deforestation and wood harvesting will continue in 
all three analysis units in Mexico. Continued loss and degradation of 
pygmy-owl habitat will reduce overall species resiliency, impeding the 
ability of the subspecies to withstand stochastic events and increasing 
the risk of extirpation following such events. The loss of population 
groups will lead to a reduction in representation, reducing the 
subspecies' ability to adapt over time to changes in the environment, 
such as climate changes. This expected reduction in both the number and 
distribution of sufficiently resilient population groups will reduce 
redundancy and impede the ability of the subspecies to recolonize 
following catastrophic disturbance. Thus, after assessing the best 
available information, we conclude that the cactus ferruginous pygmy-
owl is not currently in danger of extinction but is likely to become in 
danger of extinction within the foreseeable future throughout all of 
its range.
Status Throughout a Significant Portion of Its Range
    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological 
Diversity), vacated the aspect of the Final Policy on Interpretation of 
the Phrase ``Significant Portion of Its Range'' in the Endangered 
Species Act's Definitions of ``Endangered Species'' and ``Threatened 
Species'' (79 FR 37578; July 1, 2014) that provided that the Service 
does not undertake an analysis of significant portions of a species' 
range if the species warrants listing as threatened throughout all of 
its range. Therefore, we proceed to evaluating whether the species is 
endangered in a significant portion of its range--that is, whether 
there is any portion of the species' range for which both (1) the 
portion is significant; and (2) the species is in danger of extinction 
in that portion. Depending on the case, it might be more efficient for 
us to address the ``significance'' question or the ``status'' question 
first. We can choose to address either question first. Regardless of 
which question we address first, if we reach a negative answer with 
respect to the first question that we address, we do not need to 
evaluate the other question for that portion of the species' range.
    Following the court's holding in Center for Biological Diversity, 
we now consider whether there are any significant portions of the 
species' range where the species is in danger of

[[Page 72564]]

extinction now (i.e., endangered). In undertaking this analysis for 
cactus ferruginous pygmy-owl, we choose to address the status question 
first--we consider information pertaining to the geographic 
distribution of both the species and the threats that the species faces 
to identify any portions of the range where the species is endangered.
    The statutory difference between an endangered species and a 
threatened species is the timeframe in which the species becomes in 
danger of extinction; an endangered species is in danger of extinction 
now while a threatened species is not in danger of extinction now but 
is likely to become so in the foreseeable future. Thus, we reviewed the 
best scientific and commercial data available regarding the time 
horizon for the threats that are driving the cactus ferruginous pygmy-
owl to warrant listing as a threatened species throughout all of its 
range. We considered whether the threats are geographically 
concentrated in any portion of the species' range in a way that would 
accelerate the time horizon for the species' exposure or response to 
the threats. We examined the following threats: Climate change and 
climate condition (Factor E) and habitat loss and fragmentation (Factor 
A), including cumulative effects.
    We found a concentration of threats, i.e., the impacts of climate 
change, urbanization, and invasive species, in the Sonoran Desert 
Ecoregion, which extends from Arizona south into Sonora, Mexico. 
Climate change impacts to the pygmy-owl in the Sonoran Desert Ecoregion 
are likely to include loss of vegetation cover, reduced prey 
availability, increased predation, reduced nest site availability, and 
vegetation community change. For example, models predict that the 
distribution of suitable habitat for saguaros, the primary pygmy-owl 
nesting substrate within the Sonoran Desert Ecoregion, will 
substantially decrease over the next 50 years under a moderate climate 
change scenario (Weiss and Overpeck 2005, p. 2074; Thomas et al. 2012, 
p. 43).
    Climate models project that, by the end of the 21st century, the 
Sonoran Desert will experience an increase in drought conditions with a 
transition to a drier and more arid climate (Seager et al. 2007, p. 9; 
Cook et al. 2015, p. 6; Pascale et al. 2017, p. 806; Williams et al. 
2020, p. 317). Given that this portion of the pygmy-owl's overall range 
is already characterized by arid and hot conditions and is in the midst 
of an extended drought, the effects from climate change represent a 
higher concentration of effects than in other portions of the pygmy-
owl's range, which generally are characterized by higher precipitation 
and lower temperatures resulting in a baseline of higher greenness and 
vegetation health. In general, annual precipitation in the Sonoran 
Desert is positively correlated to pygmy-owl productivity (Flesch et 
al. 2015, p. 26). Timing and quantity of precipitation affects lizard 
and rodent abundance in ways that suggest rainfall is an important 
driver of prey population and community dynamics. In general, cool-
season rainfall is positively correlated with rodent populations and 
warm-season rainfall is positively correlated with lizard populations. 
Projected increases in variability and decreases in quantity of 
precipitation will likely lead to a decrease in prey abundance for the 
pygmy-owl (Jones 1981, p. 111; Flesch 2008, p. 5; Flesch et al. 2015, 
p. 26).
    Urban expansion and human population growth trends are expected to 
continue in the Sonoran Desert Ecoregion. The Maricopa-Pima-Pinal 
County areas of Arizona are expected to see the population grow by as 
much as 132 percent between 2005 and 2050, creating rural-urban edge 
effects across thousands of acres of pygmy-owl habitat (AECOM 2011, p. 
13).
    The population along the U.S.-Mexico border region from Texas to 
California is expected to double by 2025 (HHS 2017, p. 1). In Arizona, 
the border counties are projected to increase by 60 percent to 2.5 
million by 2050 (OEO 2021, unpaginated). In Sonora the population is 
projected to reach 3.5 million by 2030 (CONAPO 2014, p. 25). 
Development is focused along the border and this area of northern 
Mexico has faster population growth than other Mexican states (Pineiro 
2001, pp. 1-2). This development focuses potential barriers or 
impediments to pygmy-owl movements in a region that is important for 
demographic support (immigration events and gene flow) of pygmy-owl 
population groups, including movements such as dispersal. If urban 
expansion and development continues as expected, it will encompass a 
substantial portion of the current distribution of the pygmy-owl in the 
Sonoran Desert Ecoregion.
    The invasion of nonnative vegetation, particularly nonnative 
grasses, has altered the natural fire regime over the Sonoran Desert 
Ecoregion portion of the pygmy-owl's range. Buffelgrass is prevalent 
and increasing throughout much of this portion of the pygmy-owl's 
range, leading to increased fire frequency in a system that is not 
adapted to fire (Schmid and Rogers 1988, p. 442; D'Antonio and Vitousek 
1992, p. 73; Burquez and Quintana 1994, p. 23; Halverson and Guertin 
2003, p. 13; Van Devender and Dimmit 2006, p. 5). While a single fire 
in an area may or may not produce long-term reductions in plant cover 
or biomass, repeated wildfires in a given area are capable of ecosystem 
type-conversion from native desertscrub to nonnative annual grassland. 
These repeated fires may render the area unsuitable for pygmy-owls and 
other native wildlife due to the loss of trees and columnar cacti, and 
reduced diversity of cover and prey species (Brooks and Esque 2002, p. 
336).
    Despite the current concentration of threats and their increasing 
effects to pygmy-owls and pygmy-owl habitat, the Sonoran Desert 
Ecoregion currently supports an abundance of pygmy-owls in the high 
hundreds and a moderate amount of intact, suitable vegetation. 
Consequently, these factors are currently maintaining an overall 
moderate level of resiliency in this portion of the range. 
Additionally, there is currently habitat connectivity with evidence of 
pygmy-owl movement among population groups, providing redundancy 
throughout the Sonoran Desert Ecoregion. Representation is also 
currently being maintained through pygmy-owl occupancy of a variety of 
vegetation types throughout the Sonoran Desert Ecoregion with gene flow 
among these population groups. However, under all three future 
scenarios, this portion of the range is expected to become less 
resilient due to continued habitat fragmentation and the effects of 
climate change on habitat conditions, resulting in a reduction of 
pygmy-owl abundance and occupancy. These deteriorating conditions are 
also anticipated to result in declines in redundancy and representation 
through the loss of population groups within the Ecoregion.
    Although some threats to the cactus ferruginous pygmy-owl are 
concentrated in the Sonoran Desert Ecoregion, the best scientific and 
commercial data available does not indicate that the concentration of 
threats, or the species' responses to the concentration of threats, are 
likely to accelerate the time horizon in which the species becomes in 
danger of extinction in that portion of its range. As a result, the 
cactus ferruginous pygmy-owl is not in danger of extinction now in the 
Sonoran Desert Ecoregion. However, we do find that the species is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range. This finding is consistent with the 
courts' holdings in Desert Survivors v. Department of the Interior, No. 
16-cv-01165-JCS, 2018

[[Page 72565]]

WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).
Determination of Status
    Our review of the best available scientific and commercial 
information indicates that the cactus ferruginous pygmy-owl meets the 
Act's definition of a threatened species. Therefore, we propose to list 
the cactus ferruginous pygmy-owl as a threatened species in accordance 
with sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public within 30 days of a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting'') and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Recovery teams (composed of 
species experts, Federal and State agencies, nongovernmental 
organizations, and stakeholders) are often established to develop 
recovery plans. If we adopt this rule as proposed, when completed, the 
recovery outline, draft recovery plan, and the final recovery plan for 
the cactus ferruginous pygmy-owl will be available on our website 
(http://www.fws.gov/endangered), or from our Arizona Ecological 
Services Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the States of Arizona and Texas would 
be eligible for Federal funds to implement management actions that 
promote the protection or recovery of the cactus ferruginous pygmy-owl. 
Information on our grant programs that are available to aid species 
recovery can be found at: http://www.fws.gov/grants.
    Section 8(a) of the Act (16 U.S.C. 1537(a)) authorizes the 
provision of limited financial assistance for the development and 
management of programs that the Secretary of the Interior determines to 
be necessary or useful for the conservation of endangered or threatened 
species in foreign countries. Sections 8(b) and 8(c) of the Act (16 
U.S.C. 1537(b) and (c)) authorize the Secretary to encourage 
conservation programs for foreign listed species, and to provide 
assistance for such programs, in the form of personnel and the training 
of personnel.
    Although the cactus ferruginous pygmy-owl is only proposed for 
listing under the Act at this time, please let us know if you are 
interested in participating in recovery efforts for this subspecies. 
Additionally, we invite you to submit any new information on this 
subspecies whenever it becomes available and any information you may 
have for recovery planning purposes (see FOR FURTHER INFORMATION 
CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on Federal lands administered, or on private lands seeking 
funding, by Federal agencies, which may include, but are not limited 
to, the Department of the Interior's U.S. Fish and Wildlife Service, 
Bureau of Land Management, and National Park Service (Organ Pipe Cactus 
National Monument and Ironwood Forest National Monument); the 
Department of Defense's (Barry M. Goldwater Air Force Range) and U.S. 
Army Corps of Engineers (for issuance of section 404 Clean Water 
permits); the U.S. Department of Agriculture's U.S. Forest Service, 
Natural Resources Conservation Service, and Farm Service Agency; and 
construction and maintenance of roads or highways by the Federal 
Highway Administration.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR

[[Page 72566]]

34272), to identify to the maximum extent practicable at the time a 
species is listed, those activities that would or would not constitute 
a violation of section 9 of the Act. The intent of this policy is to 
increase public awareness of the effect of a proposed listing on 
proposed and ongoing activities within the range of the species 
proposed for listing. The discussion below regarding protective 
regulations under section 4(d) of the Act complies with our policy.

II. Proposed Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as he [or she] 
deems necessary and advisable to provide for the conservation of 
species listed as threatened. The U.S. Supreme Court has noted that 
statutory language like ``necessary and advisable'' demonstrates a 
large degree of deference to the agency (see Webster v. Doe, 486 U.S. 
592 (1988)). Conservation is defined in the Act to mean the use of all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Additionally, the 
second sentence of section 4(d) of the Act states that the Secretary 
may by regulation prohibit with respect to any threatened species any 
act prohibited under section 9(a)(1), in the case of fish or wildlife, 
or section 9(a)(2), in the case of plants. Thus, the combination of the 
two sentences of section 4(d) provides the Secretary with wide latitude 
of discretion to select and promulgate appropriate regulations tailored 
to the specific conservation needs of the threatened species. The 
second sentence grants particularly broad discretion to the Service 
when adopting the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife, or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council 
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the Act was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to him [or her] with regard to the permitted activities for those 
species. He [or she] may, for example, permit taking, but not 
importation of such species, or he [or she] may choose to forbid both 
taking and importation but allow the transportation of such species'' 
(H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
    Exercising this authority under section 4(d), we have developed a 
proposed rule that is designed to address the cactus ferruginous pygmy-
owl's conservation needs. Although the statute does not require us to 
make a ``necessary and advisable'' finding with respect to the adoption 
of specific prohibitions under section 9, we find that this proposed 
rule as a whole satisfies the requirement in section 4(d) of the Act to 
issue regulations deemed necessary and advisable to provide for the 
conservation of the cactus ferruginous pygmy-owl. Because of the large 
geographic range of the cactus ferruginous pygmy-owl, different 
portions of the geographic range are affected by different types and 
extent of threats and stressors. Therefore, it is feasible that 
exceptions under this proposed 4(d) rule may be different for the 
different analysis units described in the SSA report. We encourage 
public comment providing support for the potential application of 
different exceptions in different portions of the cactus ferruginous 
pygmy-owl's geographic range.
    As discussed above under Summary of Biological Status and Threats, 
we have concluded that the cactus ferruginous pygmy-owl is likely to 
become in danger of extinction within the foreseeable future primarily 
due to a loss of vegetation cover, reduced prey availability, increased 
predation, reduced nest site availability, and vegetation community 
change resulting from ongoing climate change, particularly increases in 
drought conditions, as well as due to habitat loss and fragmentation 
stemming from urbanization, agriculture, deforestation, and invasive 
species. This proposed 4(d) rule identifies the prohibitions needed to 
conserve the cactus ferruginous pygmy-owl.
    We considered the range of potential activities that may 
potentially affect the cactus ferruginous pygmy-owl's status and 
viability. There is a very wide range of such potential activities 
including, but not limited to, commercial and residential development, 
infrastructure development and maintenance, utility work, activities 
related to border infrastructure and enforcement, grazing and ranching 
activities, activities conducted under Clean Water Act permits, mining, 
flood control activities, recreation, and activities conducted under 
land management plans. There is also a wide range of factors that 
affect the implementation of each of these activity types resulting in 
unique circumstances that we considered in developing proposed 4(d) 
rule exceptions. Ultimately, we find that it is appropriate to extend 
the standard section 9 prohibitions for endangered species to the 
cactus ferruginous pygmy-owl in order to conserve the subspecies.
    However, while developing this proposed 4(d) rule, the Service 
considered exceptions to the standard section 9 prohibitions for 
endangered species that would facilitate essential conservation actions 
needed for the cactus ferruginous pygmy-owl. We consider essential 
conservation efforts to include facilitating surveys and monitoring of 
cactus ferruginous pygmy-owl population groups; enabling research to 
better understand cactus ferruginous pygmy-owl's needs and stressors 
(including the use of nest boxes and captive breeding); conducting 
education and outreach activities to increase public awareness and 
support of cactus ferruginous pygmy-owl conservation and recovery; and 
encouraging management of the landscape in ways that meet both land 
management considerations and the conservation needs of the cactus 
ferruginous pygmy-owl. Such land management considerations potentially 
include restoration and habitat improvement actions (including 
nonnative, invasive species management), watershed improvements, and 
grazing management that is compatible with cactus ferruginous pygmy-owl 
habitat enhancement and restoration, provided pygmy-owl habitat 
enhancement and restoration is identified as a significant outcome of 
the management actions and such actions are coordinated with the 
Service.
    For the purposes of this proposed rule and our SSA analysis, we 
consider surveying and monitoring activities necessary to understand 
and implement cactus ferruginous pygmy-owl conservation and recovery. 
We currently lack data on the current numbers, density, and 
distribution of the cactus ferruginous pygmy-owl across its defined 
geographic range in both the United States and Mexico. We also lack 
comprehensive data on the productivity,

[[Page 72567]]

survival, mortality, and other natural-history characteristics of the 
cactus ferruginous pygmy-owl. Such data have been gathered 
historically, but only in local areas and primarily only in the United 
States and northern Sonora. Where we have data on occurrence, numbers, 
density, and natural-history variables, they allow us to better 
understand the status of the cactus ferruginous pygmy-owl and what 
actions are necessary to conserve population groups and enhance status 
and viability. Surveying and monitoring activities can result in short-
term effects to cactus ferruginous pygmy-owls and, potentially, in the 
take of individuals and nest sites. We want to encourage more 
comprehensive and widespread surveying and monitoring activities across 
the geographic range of the cactus ferruginous pygmy-owl, and thus, we 
are considering providing an exception for this action in the 4(d) 
rule. This exception could occur by recognizing State authority to 
issue a permit to conduct call broadcast surveys and monitoring and 
nest monitoring for listed species. This state permitting would ensure 
oversight for surveyor and monitor qualifications, as well as data 
submission to the State agencies. Thus, an exception to the 
prohibitions of take could be granted under the 4(d) rule if the 
surveyors and monitors possessed a valid state permit, if required. If 
a State permit is not required to conduct call broadcast surveys and 
monitoring and nest monitoring, such activities could require a Federal 
10(a)(1)(A) permit. We are considering this approach to recognize State 
authorities and streamline permitting processes. This exception would 
not cover any activities that involve the handling of pygmy-owls. We 
encourage public and agency comments related to our consideration of 
using the State permitting process in the 4(d) rule as the basis of an 
exception to the prohibitions on take related to pygmy-owl survey and 
monitoring activities.
    Similar to surveying and monitoring, research related to all 
aspects of cactus ferruginous pygmy-owl natural history are needed to 
fill in information gaps and improve our understanding of the needs and 
stressors of the cactus ferruginous pygmy-owl to be able to identify 
and implement effective conservation and recovery actions. This 
includes research into the effectiveness of a managed breeding program 
for the pygmy-owl.
    Because research that involves the capture, handling, marking, 
human care, tissue sample collection, etc., of pygmy-owls may result in 
the direct take of cactus ferruginous pygmy-owls, it is necessary to 
require those implementing these actions to have the appropriate 
background, expertise, and equipment and materials to implement these 
activities. We find that these activities are best administered through 
our section 10 permitting process (under the Act's section 
10(a)(1)(A)). This permitting process allows us to assess the 
appropriateness of the proposed projects and activities with regard to 
promoting the conservation of the cactus ferruginous pygmy-owl; ensure 
the competency of those conducting the activities; reduce the potential 
for redundancy of effort and overlapping effects to cactus ferruginous 
pygmy-owls; and facilitate the opportunity to receive, analyze, and 
incorporate the most current information into conservation and recovery 
actions.
    Restoration and habitat improvement actions are those actions that 
convert areas that are otherwise not habitat for the cactus ferruginous 
pygmy-owl to areas that are cactus ferruginous pygmy-owl habitat or 
actions that improve areas of lesser quality cactus ferruginous pygmy-
owl habitat to areas of higher quality cactus ferruginous pygmy-owl 
habitat. These actions are essential for the subspecies, as this is the 
only way to offset habitat loss and fragmentation. For the cactus 
ferruginous pygmy-owl, the primary restoration or habitat improvement 
actions include, but are not limited to, placement of nest boxes, 
restoration of native species, establishment or protection of nesting 
substrates (large trees and columnar cacti), invasive species control, 
riparian enhancement, water developments, watershed improvements, 
improved habitat connectivity, and fire management. Because we want to 
encourage the implementation of cactus ferruginous pygmy-owl habitat 
restoration and enhancement, we are proposing in the 4(d) rule an 
exemption to the take of cactus ferruginous pygmy-owls that may result 
from such activities, as described below. In order to receive this 
exemption, the habitat restoration and improvement projects must be 
coordinated with, and receive approval from, the Service prior to work 
commencing.
    Education and outreach activities allow cactus ferruginous pygmy-
owl conservation partners to present information to various segments of 
the public related to ongoing conservation and management activities 
and programs. Public awareness of the cactus ferruginous pygmy-owl's 
biology, ecology, and threats helps foster support for recovery program 
activities across the geographic range of the cactus ferruginous pygmy-
owl. Increasing the prevailing understanding of how recovery activities 
for the cactus ferruginous pygmy-owl improve the health, function, and 
quality of the environments where they are found, as well as the human 
communities located in proximity to occupied cactus ferruginous pygmy-
owl habitat, will strengthen support for continued conservation of the 
pygmy-owl and for the habitats upon which it depends. Education and 
outreach will also serve to counteract incorrect narratives that 
conservation of the cactus ferruginous pygmy-owl is responsible for 
preventing activities and development that positively affect the area's 
social and economic well-being. Allowing the public to personally see 
pygmy-owls through the use of educational animals can result in take of 
individuals. The potential for this type of take is already addressed 
through the issuance of a Migratory Bird Treaty Act (MBTA) permit and 
we are proposing to streamline permitting by acknowledging the existing 
MBTA process in this proposed 4(d) rule. Such education and outreach 
programs can increase public awareness, engagement, and support for 
cactus ferruginous pygmy-owl conservation and recovery. Such benefits 
outweigh the effects to individual pygmy-owls.
    Finally, we considered the need for compatibly managed grazing 
activities that result in the vegetation structure and composition 
needed to support the cactus ferruginous pygmy-owl. The habitat needs 
for the cactus ferruginous pygmy-owl vary across the subspecies' 
geographic range, and grazing can affect these habitats in different 
ways. It is important that grazing is managed at a given site to 
account for a variety of factors specific to the local ecological site, 
including past management, soils, precipitation, and other factors, to 
ensure that the resulting vegetative composition and structure will 
support the cactus ferruginous pygmy-owl. Grazing management that has 
altered the vegetation community to a point where the composition and 
structure are no longer suitable for cactus ferruginous pygmy-owls can 
contribute to habitat loss and fragmentation within the landscape, even 
though these areas may remain as open space on the landscape. Livestock 
grazing, however, is not inherently detrimental to the cactus 
ferruginous pygmy-owl, provided that grazing management results in a 
plant community with species and structural diversity suitable for the 
cactus ferruginous pygmy-owl. When livestock grazing is managed 
compatibly, it can be an invaluable tool for managing healthy

[[Page 72568]]

vegetation communities benefiting the cactus ferruginous pygmy-owl.
    While developing this proposed 4(d) rule, we determined that 
grazing management has to occur on the local level, and thus broad 
determinations within this proposed 4(d) rule would not be beneficial 
to the species or local land managers. While the 4(d) rule was one 
approach considered to promote conservation of the cactus ferruginous 
pygmy-owl by encouraging management of vegetation communities in ways 
that support both long-term viability of livestock enterprises and 
concurrent conservation of pygmy-owls, we determined that other 
mechanisms under our authorities would be more appropriate to support 
this action. Besides a 4(d) rule, other mechanisms supporting 
conservation opportunities exist in other portions of the Act and our 
policies, including under the Act's section 7(a) (Federal Agency 
Actions and Consultations), the Act's section 10(a) (Permits), and our 
conservation banking program. We recognize the value of compatibly 
managed grazing for the cactus ferruginous pygmy-owl, and we look 
forward to working with our partners and local land managers to ensure 
there are viable conservation options that provide regulatory coverage 
for interested landowners. We encourage public comments related to the 
issue of properly managed grazing and the appropriate best approach for 
addressing livestock grazing and management within the range of tools 
available.
    As indicated above, the provisions of this proposed 4(d) rule are 
one of many tools that we would use to promote the conservation of the 
cactus ferruginous pygmy-owl. This proposed 4(d) rule would apply only 
if and when we make final the listing of the cactus ferruginous pygmy-
owl as a threatened species.
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    This obligation does not change in any way for a threatened species 
with a species-specific 4(d) rule. Actions that result in a 
determination by a Federal agency of ``not likely to adversely affect'' 
continue to require the Service's written concurrence and actions that 
are ``likely to adversely affect'' a species require formal 
consultation and the formulation of a biological opinion.

Provisions of the Proposed 4(d) Rule

    This proposed 4(d) rule would provide for the conservation of the 
cactus ferruginous pygmy-owl by prohibiting the following activities, 
except as otherwise authorized or permitted: Importing or exporting; 
take; possession and other acts with unlawfully taken specimens; 
delivering, receiving, transporting, or shipping in interstate or 
foreign commerce in the course of commercial activity; or selling or 
offering for sale in interstate or foreign commerce. In addition, 
anyone taking, attempting to take, or otherwise possessing a cactus 
ferruginous pygmy-owl, or parts thereof, in violation of section 9 of 
the Act would be subject to a penalty under section 11 of the Act, with 
certain exceptions (discussed below).
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Regulating 
take that occurs incidental to otherwise lawful activities (section 7 
consultations with Federal action agencies) would help to conserve and 
recover the cactus ferruginous pygmy-owl by evaluating the potential of 
various activities to adversely affect or otherwise decrease the 
viability of the cactus ferruginous pygmy-owl. As mentioned above, a 
wide variety of lawful activities and projects have the potential to 
negatively affect the viability of this subspecies: Disturbance, loss 
and fragmentation of habitat, reduction of prey species, loss of 
nesting substrates, introduction of nonnative predators and 
competitors, and other similar effects. By regulating these types of 
activities and projects, we can conserve the subspecies' remaining 
habitat and populations; slow the rate of habitat loss and 
fragmentation; slow the subspecies' rate of decline; and decrease 
synergistic, negative effects from other ongoing future threats.
    Conversely, allowing incidental and intentional take for certain 
activities allow us to promote pygmy-owl conservation and improve 
pygmy-owl habitat. For example, habitat restoration and improvement 
works to offset losses and fragmentation of habitat from factors 
related to climate change and human land uses on the landscape. 
Education and outreach efforts help to increase public awareness and 
understanding and to garner support for conservation and recovery of 
the cactus ferruginous pygmy-owl. Thus, benefits to the cactus 
ferruginous pygmy-owl are derived both from regulating certain sources 
of potential take and by excepting certain take for activities where 
benefits outweigh the short-term effects of the take on cactus 
ferruginous pygmy-owl populations.
    As discussed above under Summary of Biological Status and Threats, 
the loss of vegetation cover, reduced prey availability, increased 
predation, reduced nest site availability, and vegetation community 
change resulting from ongoing climate change, particularly increases in 
drought conditions, and habitat loss and fragmentation stemming from 
urbanization, agriculture, deforestation, and invasive species are 
affecting the status of the cactus ferruginous pygmy-owl. We have 
identified various activities that have the potential to help us 
understand and offset the activities affecting the cactus ferruginous 
pygmy-owl's viability. Therefore, a range of conservation activities, 
including education and outreach related to cactus ferruginous pygmy-
owl recovery, and management of the landscape in ways that meet both 
land management considerations and the conservation needs of the cactus 
ferruginous pygmy-owl, have the potential to benefit the cactus 
ferruginous pygmy-owl. Such land management considerations potentially 
include restoration and habitat improvement actions, watershed

[[Page 72569]]

improvements, and grazing management that is compatible with cactus 
ferruginous pygmy-owl habitat enhancement and restoration, provided 
such habitat enhancement and restoration is identified as a significant 
outcome of the management actions and such actions are coordinated with 
the Service and appropriate State and Tribal agencies and landowners. 
Accordingly, this proposed 4(d) rule addresses activities to facilitate 
conservation and management of the cactus ferruginous pygmy-owl where 
the activities currently occur and may occur in the future by excepting 
the activities from the Act's take prohibition under certain specific 
conditions. These activities are intended to increase management 
flexibility and encourage support for conservation of, habitat 
restoration for, and habitat improvement for the cactus ferruginous 
pygmy-owl.
    Under this proposed 4(d) rule, most take would be prohibited. 
Exceptions to the prohibitions on take would include some of the 
general exceptions allowed for take of endangered wildlife as set forth 
is 50 CFR 17.21 (see the rule portion of this document) and certain 
other specific activities that we propose for exception, as described 
below. The excepted activities would require approval by the Service or 
would have to be conducted under an existing, appropriate, valid permit 
issued under part 21 of title 50 of the Code of Federal Regulations, 
which governs species protected under the MBTA, as described below. 
These activities should be conducted in coordination with appropriate 
land management agencies; State, Tribal, and local agencies; and 
private landowners, as appropriate, and in support of any existing or 
future designated recovery programs guiding the conservation and 
recovery of the cactus ferruginous pygmy-owl. The following activities 
would be excepted from the take prohibitions for the pygmy-owl (i.e., 
take would be allowed for these activities) under this proposed 4(d) 
rule.
Education and Outreach
    Education and outreach are a vital part of cactus ferruginous 
pygmy-owl recovery and progress towards achieving and maintaining 
viable populations of cactus ferruginous pygmy-owls. This proposed 4(d) 
rule excepts from take prohibitions those cactus ferruginous pygmy-owl 
education and outreach activities undertaken for the purposes of 
increasing public awareness of cactus ferruginous pygmy-owl biology, 
ecology, or recovery needs, as well as of the positive effects of 
having pygmy-owls as a viable part of the local ecosystems on the local 
society, economy, and quality of life for communities. Such educational 
activities may include use of educational captive-reared cactus 
ferruginous pygmy-owls, pygmy-owl skins, or parts of pygmy-owls. These 
activities raptors are typically covered by a permit issued under 50 
CFR part 21, which governs species protected under the MBTA. To remove 
redundant permitting, this proposed 4(d) rule will cover incidental 
take resulting from educational and outreach activities, provided the 
researcher already holds an appropriate and valid MBTA permit issued 
under 50 CFR part 21. These activities can increase public awareness, 
engagement, and support for cactus ferruginous pygmy-owl conservation 
and recovery.
    Education and outreach activities must be coordinated with the 
Service prior to commencing work. Coordination can occur in person, by 
phone, or through written communications. Education and outreach 
activities covered by this proposed 4(d) rule would have to be 
consistent with an existing designated recovery program, such as a 
final recovery plan, and benefit cactus ferruginous pygmy-owl 
conservation through increased public awareness and engagement, which 
supports cactus ferruginous pygmy-owl recovery. Education and outreach 
qualifying under this exception would not require a permit issued under 
section 10(a) of the Act.
Habitat Restoration and Enhancement
    Incidental take resulting from habitat restoration or enhancement 
projects that improve the viability of cactus ferruginous pygmy-owl 
populations and population groups, and have been coordinated and 
approved by the Service, is excepted from the take prohibitions under 
this proposed 4(d) rule. Habitat restoration and enhancement projects 
are needed to increase nest site (cavity) availability; improve habitat 
connectivity among cactus ferruginous pygmy-owl population groups; 
increase prey availability; improve vegetation structure and health; 
and decrease nonnative species, watershed degradation and erosion, and 
habitat loss or reduction due to extreme weather events and wildfire.
    This proposed 4(d) rule excepts from take prohibitions those 
habitat restoration or enhancement activities with the primary or 
secondary purpose of improving cactus ferruginous pygmy-owl habitat 
conditions across the subspecies' geographical range. Specific habitat 
restoration or enhancement actions could include nest box installation; 
establishment or protection of nesting substrates (large trees or 
columnar cacti) to increase the availability of nest cavities; 
restoration or enhancement of native vegetation structure and species; 
control or eradication of invasive, nonnative species; riparian 
enhancement or restoration; water developments; watershed improvements; 
improved habitat connectivity; and fire management.
    Prescribed fire within Sonoran Desert vegetation communities is not 
excepted in the proposed 4(d) rule. Fire can be an effective tool in 
maintaining ecosystem health, which is beneficial to the cactus 
ferruginous pygmy-owl, but Sonoran Desert vegetation communities are 
not fire-adapted, and use of fire in these vegetation communities must 
be carefully implemented or important pygmy-owl habitat elements can be 
lost or altered. Therefore, because of the risks associated with the 
loss or alteration of pygmy-owl habitat, the use of fire in Sonoran 
Desert vegetation communities is not excepted from the take 
prohibitions under this proposed 4(d) rule.
    Woody vegetation communities provide the most important pygmy-owl 
habitat factors, particularly woodland tree canopy cover. Pygmy-owl 
habitat is not typically enhanced by actions that would remove woodland 
tree cover. Such actions would normally reduce vegetation cover 
diversity, pygmy-owl prey diversity, and important predator avoidance 
and thermoregulatory cover for the pygmy-owl. Therefore, any action 
that would result in more than a minimal reduction or removal of tree 
cover (as determined during coordination with the Service) is not 
included under the habitat restoration or enhancement take exception in 
the proposed 4(d) rule.
    Actions that promote the use of, or encourage the growth of, 
nonnative vegetation species are not exempted in the proposed 4(d) 
rule. Nonnative vegetation species can outcompete and replace native 
species that provide important habitat factors for the pygmy-owl. This 
outcome is particularly true when nonnative species form monocultures, 
resulting in low diversity and dense ground cover that alters natural 
fire regimes and reduces pygmy-owl prey diversity and availability.
    In order to fall under the activities included under the habitat 
restoration or enhancement take exception in the proposed 4(d) rule, 
those persons implementing cactus ferruginous

[[Page 72570]]

pygmy-owl habitat enhancement and restoration activities need written 
approval from the Service. Prior to approving proposed activities, the 
Service will coordinate with the appropriate entities (land management 
agencies, Tribal entities, private landowners, etc.).
    For all forms of allowable take in the proposed 4(d) rule, 
reasonable care will be practiced to minimize the impacts from the 
actions. Reasonable care means limiting the impacts to cactus 
ferruginous pygmy-owl individuals and populations by complying with all 
applicable Federal, State, and Tribal regulations for the activity in 
question; using methods and techniques that result in the least harm, 
injury, or death, as feasible; undertaking activities at the least 
impactful times (e.g., conducting activities that might impact nesting 
cactus ferruginous pygmy-owls or nesting habitat only after nesting is 
concluded for the year) and locations, as feasible; procuring and 
implementing technical assistance from a qualified biologist on 
projects regarding all methods prior to the implementation of those 
methods; minimizing the number of individuals disturbed in the existing 
wild population; implementing best management practices to ensure no 
disease or parasites are introduced or spread in pygmy-owl populations, 
including the proper use of quarantine and health evaluations; and 
preserving the genetic diversity of wild populations.
Permitting and Other Regulations To Cover Take
    We may issue permits to carry out otherwise prohibited activities, 
including those described above, involving threatened wildlife under 
certain circumstances. Regulations governing permits are codified at 50 
CFR 17.32. With regard to threatened wildlife, a permit may be issued 
for the following purposes: For scientific purposes, to enhance 
propagation or survival, for economic hardship, for zoological 
exhibition, for educational purposes, for incidental taking, or for 
special purposes consistent with the purposes of the Act. The statute 
also contains certain exemptions from the prohibitions, which are found 
in sections 9 and 10 of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist the Service in implementing all aspects of the Act. 
In this regard, section 6 of the Act provides that the Service shall 
cooperate to the maximum extent practicable with the States in carrying 
out programs authorized by the Act. Therefore, any qualified employee 
or agent of a State conservation agency that is a party to a 
cooperative agreement with the Service in accordance with section 6(c) 
of the Act, who is designated by his or her agency for such purposes, 
would be able to conduct activities designed to conserve cactus 
ferruginous pygmy-owl that may result in otherwise prohibited take 
without additional authorization.
    As described above, take can result by direct and indirect impacts, 
intentionally or incidentally. Section 7 of the Act regulates 
incidental take that occurs incidental to otherwise lawful activities, 
which have a nexus to a Federal action agency. Section 7(a)(2) of the 
Act requires Federal agencies, including the Service, to ensure that 
any action they fund, authorize, or carry out is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of designated critical habitat of such species. The Section 7 process 
helps to conserve and recover the cactus ferruginous pygmy-owl by 
evaluating the potential of various activities to adversely affect the 
cactus ferruginous pygmy-owl. Section 7 consultations ensure that 
Federal actions do not jeopardize the continued existence of the pygmy-
owl and that proposed project activities include appropriate 
conservation measures or that reasonable and prudent measures are 
included to minimize the impacts of incidental take that is anticipated 
to result from implementing a project.
    Nothing in this proposed 4(d) rule would change in any way the 
recovery planning provisions of section 4(f) of the Act, the 
consultation requirements under section 7 of the Act, or the ability of 
the Service to enter into partnerships for the management and 
protection of the cactus ferruginous pygmy-owl. However, interagency 
cooperation may be further streamlined through planned programmatic 
consultations for the species between Federal agencies and the Service, 
where appropriate. We ask the public, particularly State agencies and 
other interested stakeholders that may be affected by the proposed 4(d) 
rule, to provide comments and suggestions regarding additional guidance 
and methods that the Service could provide or use, respectively, to 
streamline the implementation of this proposed 4(d) rule (see 
Information Requested, above).

III. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features.
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals). Additionally, our regulations 
at 50 CFR 424.02 define the word ``habitat,'' for the purposes of 
designating critical habitat only, as the abiotic and biotic setting 
that currently or periodically contains the resources and conditions 
necessary to support one or more life processes of a species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies

[[Page 72571]]

ensure, in consultation with the Service, that any action they 
authorize, fund, or carry out is not likely to result in the 
destruction or adverse modification of critical habitat. The 
designation of critical habitat does not affect land ownership or 
establish a refuge, wilderness, reserve, preserve, or other 
conservation area. Such designation also does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the Federal agency would be required to consult 
with the Service under section 7(a)(2) of the Act. However, even if the 
Service were to conclude that the proposed activity would result in 
destruction or adverse modification of the critical habitat, the 
Federal action agency and the landowner are not required to abandon the 
proposed activity, or to restore or recover the species; instead, they 
must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features that occur in specific occupied areas, 
we focus on the specific features that are essential to support the 
life-history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, prey, vegetation, 
symbiotic species, or other features. A feature may be a single habitat 
characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. The implementing regulations at 50 CFR 424.12(b)(2) further 
delineate unoccupied critical habitat by setting out three specific 
parameters: (1) When designating critical habitat, the Secretary will 
first evaluate areas occupied by the species; (2) the Secretary will 
consider unoccupied areas to be essential only where a critical habitat 
designation limited to geographical areas occupied by the species would 
be inadequate to ensure the conservation of the species; and (3) for an 
unoccupied area to be considered essential, the Secretary must 
determine that there is a reasonable certainty both that the area will 
contribute to the conservation of the species and that the area 
contains one or more of those physical or biological features essential 
to the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    As the regulatory definition of ``habitat'' (50 CFR 424.02) 
reflects, habitat is dynamic, and species may move from one area to 
another over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in section 9 of the Act. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of the species. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, HCPs, or other species 
conservation planning efforts if new information available at the time 
of those planning efforts calls for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary shall designate critical habitat at the 
time the species is determined to be an endangered or threatened 
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary 
may, but is not required to, determine that a designation would not be 
prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through

[[Page 72572]]

management actions resulting from consultations under section 7(a)(2) 
of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    As discussed earlier in this document, there is currently no 
imminent threat of collection or vandalism identified under Factor B 
for this species, and identification and mapping of critical habitat is 
not expected to initiate any such threat. In our SSA report and 
proposed listing determination for the cactus ferruginous pygmy-owl, we 
determined that the present or threatened destruction, modification, or 
curtailment of habitat or range is a threat to cactus ferruginous 
pygmy-owl and that those threats in some way can be addressed by 
section 7(a)(2) consultation measures. Therefore, because none of the 
circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have 
been met and because the Secretary has not identified other 
circumstances for which this designation of critical habitat would be 
not prudent, we have determined that the designation of critical 
habitat is prudent for the cactus ferruginous pygmy-owl.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the cactus 
ferruginous pygmy-owl is determinable. Our regulations at 50 CFR 
424.12(a)(2) state that critical habitat is not determinable when one 
or both of the following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
located. Careful assessments of the economic and environmental impacts 
that may occur due to a critical habitat designation are not yet 
complete, and we are in the process of working with the States and 
other partners in acquiring the complex information needed to perform 
those assessments. The information sufficient to perform a required 
analysis of the impacts of the designation is lacking. Therefore, we 
conclude that the designation of critical habitat for the cactus 
ferruginous pygmy-owl is not determinable at this time. As mentioned 
above, the Act allows the Service an additional year to publish a 
critical habitat designation that is not determinable at the time of 
listing (16 U.S.C. 1533(b)(6)(C)(ii)).

Required Determinations

Clarity of the Rule
    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations 
adopted pursuant to section 4(a) of the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This position was upheld by the U.S. 
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes.
    We contacted the Ak Chin Indian Community, Apache Tribe of 
Oklahoma, Cocopah Indian Tribe, Comanche Nation, Gila River Indian 
Community, Hopi Tribe, Pascua Yaqui Tribe, San Carlos Apache Tribe, 
Salt River Pima-Maricopa Indian Community, Tohono O'odam Nation, 
Tonkawa Tribe of Indians, White Mountain Apache Tribe, Wichita and 
Affiliated Tribes, and Yavapai Apache Nation regarding the SSA process 
by mail and invited them to provide information and comments to inform 
the SSA. Our interactions with these Tribes are part of our government-
to-government consultation with Tribes regarding the pygmy-owl and the 
Act. The Tohono O'odham Nation was invited to participate as a member 
of the SSA team because they have historically participated on issues 
related to the cactus ferruginous pygmy-owl and they have extensive 
acreage of pygmy-owl habitat. They accepted the invitation and have 
participated in development of the SSA, as well as with pygmy-owls 
surveys and monitoring. We will continue to work with Tribal entities 
during the rulemaking process.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at http://www.regulations.gov and upon request from the 
Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the Arizona 
Ecological Services Field Office.

[[Page 72573]]

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.
0
2. Amend Sec.  17.11(h) by adding an entry for ``Pygmy-owl, cactus 
ferruginous'' to the List of Endangered and Threatened Wildlife, in 
alphabetical order under Birds, to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name       Where listed        Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
                                                      Birds
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Pygmy-owl, cactus ferruginous...  Glaucidium           Wherever found....            T   [Federal Register
                                   brasilianum                                            citation when
                                   cactorum.                                              published as a final
                                                                                          rule]; 50 CFR
                                                                                          17.41(l).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. As proposed to be amended at 83 FR 50560 (October 9, 2018), 85 FR 
63474 (October 8, 2020), 86 FR 15855 (March 25, 2021), 86 FR 31668 
(June 15, 2021), and 86 FR 41917 (August 4, 2021), Sec.  17.41 is 
further amended by adding paragraph (l) to read as follows:


Sec.  17.41  Special rules--birds.

* * * * *
    (l) Cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum). 
(1) Prohibitions. The following prohibitions that apply to endangered 
wildlife also apply to cactus ferruginous pygmy-owl. Except as provided 
under paragraphs (l)(2) and (3) of this section and Sec. Sec.  17.4, 
17.5, and 17.7, it is unlawful for any person subject to the 
jurisdiction of the United States to commit, to attempt to commit, to 
solicit another to commit, or cause to be committed, any of the 
following acts in regard to this species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) General exceptions from prohibitions. In regard to this 
species, you may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (4) for 
endangered wildlife, and (c)(6) and (7) for endangered migratory birds.
    (iii) Take as set forth at Sec.  17.31(b).
    (iv) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife, 
and (d)(3) and (4) for endangered migratory birds.
    (3) Exceptions from prohibitions for specific types of incidental 
take. You may take cactus ferruginous pygmy-owl while carrying out the 
following legally conducted activities in accordance with this 
paragraph (l)(3):
    (i) Educational and outreach activities, provided the researcher 
already holds an appropriate, valid permit issued under part 21 of this 
chapter, which governs species protected under the Migratory Bird 
Treaty Act, for educational activities involving the use of live pygmy-
owls, pygmy-owl skins, or parts of pygmy-owls or other raptors.
    (ii) Habitat restoration and enhancement activities and projects 
that are approved by the Service prior to commencing work.
    (A) These activities and projects may include activities that 
enhance cactus ferruginous pygmy-owl habitat conditions; improve 
habitat connectivity; increase availability of nest cavities; increase 
prey availability; reduce invasive, nonnative plant species; and 
enhance native plant communities, particularly woodland riparian 
communities.
    (B) These activities and projects do not include prescribed fire 
within Sonoran Desert vegetation communities, any actions that would 
result in more than a minimal reduction or removal of tree cover (as 
determined by the Service), and actions that use or promote nonnative 
vegetation species.
    (iii) For all forms of allowable take, reasonable care must be 
practiced to minimize the impacts from the actions. Reasonable care 
means:
    (A) Limiting the impacts to cactus ferruginous pygmy-owl 
individuals and populations by complying with all applicable Federal, 
State, and Tribal regulations for the activity in question;
    (B) Using methods and techniques that result in the least harm, 
injury, or death, as feasible;
    (C) Undertaking activities at the least impactful times (e.g., 
conducting activities that might impact nesting cactus ferruginous 
pygmy-owls or nesting habitat only after nesting is concluded for the 
year) and locations, as feasible;
    (D) Procuring and implementing technical assistance from a 
qualified biologist on projects regarding all methods prior to the 
implementation of those methods;
    (E) Minimizing the number of individuals disturbed in the existing 
wild population;
    (F) Implementing best management practices to ensure no diseases or 
parasites are introduced into existing cactus ferruginous pygmy-owl 
populations; and
    (G) Preserving the genetic diversity of wild populations.

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-27516 Filed 12-21-21; 8:45 am]
BILLING CODE 4333-15-P