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Proposed Rule2021-27516

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

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Published

December 22, 2021

Issuing agencies

Interior DepartmentFish and Wildlife Service

Abstract

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.

Full Text

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<title>Federal Register, Volume 86 Issue 243 (Wednesday, December 22, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. 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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>. 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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>, 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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
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 <a href="https://www.fws.gov/southwest/">https://www.fws.gov/southwest/</a>. 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 (<a href="https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials">https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials</a>) 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
(<a href="https://www.fws.gov/southwest/">https://www.fws.gov/southwest/</a>). 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 <a href="https://www.fws.gov/southwest/">https://www.fws.gov/southwest/</a> 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 <a href="https://www.fws.gov/southwest/">https://www.fws.gov/southwest/</a> prior to the
meeting and hearing (see DATES, above). See <a href="https://www.fws.gov/southwest/">https://www.fws.gov/southwest/</a> 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 <a href="http://www.regulations.gov">http://www.regulations.gov</a> and at <a href="https://www.fws.gov/southwest/es/arizona/">https://www.fws.gov/southwest/es/arizona/</a>.
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

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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
(<a href="http://www.fws.gov/endangered">http://www.fws.gov/endangered</a>), 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: <a href="http://www.fws.gov/grants">http://www.fws.gov/grants</a>.
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 <a href="http://www.regulations.gov">http://www.regulations.gov</a> 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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