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

CourtFish And Wildlife Service
Citation86 FR 72547
Publication Date22 December 2021
Record Number2021-27516
Federal Register, Volume 86 Issue 243 (Wednesday, December 22, 2021)
[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
                

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