[Federal Register Volume 67, Number 229 (Wednesday, November 27, 2002)]
[Proposed Rules]
[Pages 71032-71064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29617]



[[Page 71031]]

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

Part V





Department of the Interior





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



Fish and Wildlife Service



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



50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Arizona Distinct Population Segment of the Cactus 
Ferruginous Pygmy-owl (Glaucidium brasilianum cactorum); Proposed Rule

  Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / 
Proposed Rules  

[[Page 71032]]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI48


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Arizona Distinct Population Segment of the 
Cactus Ferruginous Pygmy-owl (Glaucidium brasilianum cactorum)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability.

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

SUMMARY: We, the U.S. Fish and Wildlife Service, propose designation of 
critical habitat pursuant to the Endangered Species Act of 1973, as 
amended (Act), for the cactus ferruginous pygmy-owl (Glaucidium 
brasilianum cactorum) (pygmy-owl). Information on the biological needs 
of the pygmy-owl that would help us define areas essential to its 
conservation is limited. However, we must respond to a court order 
issued on September 21, 2001, vacating critical habitat established for 
the pygmy-owl and remanding the previous designation of critical 
habitat for preparation of a new analysis of the economic and other 
effects of the designation (National Association of Home Builders et 
al. v. Norton, Civ.-00-903-PHX-SRB). This proposed designation, 
totaling approximately 488,863 hectares (ha) (1,208,001 acres (ac)), 
includes portions of Pima and Pinal Counties, Arizona, and includes 
approximately 9 percent of the recognized historical range of the 
pygmy-owl in Arizona. If this proposal is made final, section 7 of the 
Act would prohibit destruction or adverse modification of critical 
habitat by any activity funded, authorized, or carried out by any 
Federal agency. As required by section 4 of the Act, we will consider 
economic and other relevant impacts prior to making a final decision on 
the size and configuration of critical habitat. We also announce the 
availability of the draft economic analysis conducted on the proposed 
designation of critical habitat for the pygmy-owl. We solicit data and 
comments from the public on all aspects of this proposal, including 
data on economic and other impacts of the designation. We may revise 
this proposal to incorporate or address new information received during 
the comment period. We expect to publish a notice making the draft 
pygmy-owl recovery plan available for public comment in November 2002.

DATES: We will accept comments until February 25, 2003. We will hold 
one public hearing on this proposed rule; we have scheduled the hearing 
for January 23, 2003, from 6:30 p.m. to 9:00 p.m. in the Leo Rich 
Theatre at the Tucson Convention Center in Tucson, AZ.

ADDRESSES: Send comments and information to the Field Supervisor, 
Arizona Ecological Services Office, 2321 West Royal Palm Road, Suite 
103, Phoenix, AZ 85021. Written comments may also be sent by facsimile 
to 602/242-2513 or by electronic mail (email) to [email protected]. 
Copies of the draft economic analysis are available on the Internet at 
http://ifw2irm2.irml.r2.fws.gov/, by writing the Field Supervisor at 
the above address, or by calling 602/242-0210 to have a copy mailed to 
you or that you may pick up at the address above. Comments and 
materials received will be available for public inspection, by 
appointment, during normal business hours at the above address. The 
public hearing will be held in the Leo Rich Theatre at the Tucson 
Convention Center at 206 South Church Avenue, Tucson, AZ, 85701.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor (see 
ADDRESSES) (telephone 602/242-0210; facsimile 602/242-2513).

SUPPLEMENTARY INFORMATION:

Background

    The cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) 
(pygmy-owl) is in the order Strigiformes and the family Strigidae. It 
is a small bird, approximately 17 centimeters (cm) (6.75 inches (in)) 
long. Males average 62 grams (g) (2.2 ounces (oz)), and females average 
75 g (2.6 oz). The pygmy-owl is reddish brown overall, with a cream-
colored belly streaked with reddish brown. Color may vary, with some 
individuals being more grayish brown. The crown is lightly streaked, 
and a pair of black/dark brown spots outlined in white occur on the 
nape suggesting ``eyes.'' This species lacks ear tufts, and the eyes 
are yellow. The tail is relatively long for an owl and is colored 
reddish brown with darker brown bars. The pygmy-owl is primarily 
diurnal (active during daylight) with crepuscular (active at dawn and 
dusk) tendencies. They can be heard making a long, monotonous series of 
short, repetitive notes, mostly during the breeding season.
    The pygmy-owl is one of four subspecies of the ferruginous pygmy-
owl. It occurs from lowland central Arizona south through western 
Mexico to the States of Colima and Michoacan, and from southern Texas 
south through the Mexican States of Tamaulipas and Nuevo Leon. Only the 
Arizona population of the pygmy-owl is listed as an endangered species 
(62 FR 10730; March 10, 1997).
    The total number of pygmy-owls and their distribution in Arizona 
are unknown. Survey and monitoring work in Arizona resulted in 
documenting 41 adult pygmy-owls in 1999, 34 in 2000, 36 in 2001, and, 
most recently, 18 in 2002. A cumulative total of 85 occupied sites 
(includes both single or paired birds) were recorded during these 4 
years (Abbate et al. 1999, 2000, AGFD unpubl. data). Most of these 
pygmy-owls were distributed in four general areas: northwest Tucson, 
southern Pinal County, Organ Pipe Cactus National Monument, and the 
Altar Valley. We believe that more pygmy-owls exist in Arizona, but 
systematic surveys have not been conducted in all areas of potential 
habitat.
    In addition, recent survey information has shown pygmy-owls to be 
more numerous adjacent to and near the Arizona border in Mexico (Flesch 
and Steidl 2000). There also exists considerable unsurveyed habitat on 
the Tohono O'odham Nation, and, although we have no means of 
quantifying this habitat, the distribution of recent sightings on non-
Tribal areas east, west, and south of the U.S. portion of the Tohono 
O'odham Nation lead us to reasonably conclude that these Tribal lands 
may support meaningful numbers of pygmy-owls. Consequently, we believe 
that it is highly likely that the overall pygmy-owl population in 
Arizona is maintained by the movement and dispersal of owls among 
groups of pygmy-owls in southern Arizona and northern Mexico resulting 
from the connectivity of suitable habitat. The extent to which pygmy-
owls disperse across the U.S./Mexico border is unknown. Therefore, 
addressing habitat connectivity and the movements of pygmy-owls within 
Arizona is the primary consideration of this proposal due to the 
importance of maintaining dispersal and movement among pygmy-owl 
groups.
    Given recent data, it is probable that conservation of the pygmy-
owl in Arizona requires both sufficient numbers and productivity of 
pygmy-owls north of the border and immigration of pygmy-owls from 
Mexico into Arizona, although we do not know at this time to what 
extent immigration does or needs to occur.
    The patchy, dispersed nature of the pygmy-owl population in Arizona 
suggests that the overall population may function as a metapopulation. 
A metapopulation is a set of

[[Page 71033]]

subpopulations within an area, where movement and exchange of 
individuals among population segments is possible, but not routine. A 
metapopulation's persistence depends on the combined dynamics of the 
productivity of subpopulations, the maintenance of genetic diversity, 
the availability of suitable habitat for maintenance and expansion of 
subpopulations, and the ``rescue'' of subpopulations that have 
experienced local extinctions by the subsequent recolonization of these 
areas by dispersal from adjacent population segments (Hanski 1999, 
Hanski and Gilpin 1991, 1997). The local groups of pygmy-owls within 
Arizona may function as subpopulations within the context of 
metapopulation theory. However, more information is needed regarding 
the population dynamics of pygmy-owls in Arizona.
    Historically, pygmy-owls were recorded in association with riparian 
woodlands in central and southern Arizona (Bendire 1892, Gilman 1909, 
Johnson et al. 1987). Plants present in these riparian communities 
included cottonwood (Populus fremontii), willow (Salix spp.), ash 
(Fraxinus velutina), and hackberry (Celtis spp.). However, recent 
records have documented pygmy-owls in a variety of vegetation 
communities such as riparian woodlands, mesquite (Prosopis velutina, 
and P. glandulosa) bosques (Spanish for woodlands), Sonoran 
desertscrub, semidesert grassland, and Sonoran savanna grassland 
communities (see Brown 1994 for a description of these vegetation 
communities). While native and nonnative plant species composition 
differs among these communities, there are certain unifying 
characteristics such as the presence of vegetation in fairly dense 
thickets or woodlands, the presence of trees, saguaros (Carnegiea 
giganteus), or organ pipe cactus (Stenocereus thurberi) large enough to 
support cavities for nesting, and elevations below 1,200 meters (m) 
(4,000 feet (ft)) (Swarth 1914, Karalus and Eckert 1974, Monson and 
Phillips 1981, Johnsgard 1988, Enriquez-Rocha et al. 1993, Proudfoot 
and Johnson 2000). Large trees provide canopy cover and cavities used 
for nesting, while the density of mid- and lower-story vegetation 
provides foraging habitat and protection from predators, and it 
contributes to the occurrence of prey items (Wilcox et al. 2000).
    The density of trees and the amount of canopy cover preferred by 
pygmy-owls in Arizona has not been fully defined. However, preliminary 
results from a habitat selection study indicate that nest sites tend to 
have a higher degree of canopy cover and higher vegetation diversity 
than random sites (Wilcox et al. 2000). Overall vegetation density may 
not be as important as patches of dense vegetation with a developed 
canopy layer interspersed with open areas. Vegetation structure may be 
more important than species composition (Wilcox et al. 1999, Cartron et 
al. 2000). This is related to the fact that canopy cover and layers of 
vegetation provide hunting perches, thermal cover, and promote predator 
avoidance regardless of species. Larger trees with greater canopy also 
have a greater potential to support cavities needed for nesting. Flesch 
(1999) indicated that areas with large trees and canopy coverage are 
likely important areas for pygmy-owls in the Altar Valley. Riparian and 
xeroriparian (dry washes) areas, which are often used by pygmy-owls, 
are generally characterized by increased vegetation layers, higher 
plant diversity and larger tree sizes because of increased moisture 
availability.
    Background information on the ecology and life history of pygmy-
owls relied on many of the documents reviewed during the proposed 
listing (59 FR 63975; December 12, 1994) and final listing (62 FR 
10730; March 10, 1997) and our previous designation of critical habitat 
(64 FR 37419; July 12, 1999). We have also reviewed biological data 
from pygmy-owl studies made available since the previous designation 
(Abbate et al. 1999, 2000, Cartron and Finch 2000, Proudfoot and 
Johnson 2000, Wilcox, et al. 2000). Since the previous designation of 
critical habitat, there were very few new references that provided 
additional information on characteristics of pygmy-owl habitat. None of 
the new biological data contradicted previous studies on the ecology of 
the subspecies; however, these studies have refined our understanding 
of the pygmy-owl's ecology. The information above summarizes the key 
elements of the pygmy-owl's habitat that are pertinent to the 
designation of critical habitat. Additional information on the biology 
of the pygmy-owl is contained in the ``Primary Constituent Elements'' 
section of this rule.

Previous Federal Actions

    We included the pygmy-owl in our Animal Notice of Review as a 
category 2 candidate species throughout its range on January 6, 1989 
(54 FR 554). Category 2 candidates were defined as those taxa for which 
we had data indicating that listing was possibly appropriate but for 
which we lacked substantial information on vulnerability and threats to 
support proposed listing rules. After soliciting and reviewing 
additional information, we elevated the pygmy-owl to category 1 status 
throughout its range in our November 21, 1991, Notice of Review (56 FR 
58804). Category 1 candidates were defined as those taxa for which we 
had sufficient information on biological vulnerability and threats to 
support proposed listing rules but for which issuance of proposals to 
list were precluded by other higher-priority listing activities. 
Beginning with our combined plant and animal Notice of Review of 
February 28, 1996 (61 FR 7596), we discontinued the designation of 
multiple categories of candidates, and only taxa meeting the definition 
of former category 1 candidates are now recognized as candidates for 
listing purposes.
    On May 26, 1992, a coalition of conservation organizations (Galvin 
et al. 1992) petitioned us to list the pygmy-owl as an endangered 
species under the Act. In accordance with section 4(b)(3)(A) of the 
Act, on March 9, 1993, we published a finding that the petition 
presented substantial scientific or commercial information indicating 
that listing of the pygmy-owl may be warranted and commenced a status 
review of the subspecies (58 FR 13045). As a result of information 
collected and evaluated during the status review, including information 
collected during a public comment period, we proposed to list the 
pygmy-owl as endangered with critical habitat in Arizona and threatened 
in Texas (59 FR 63975; December 12, 1994). After a review of all 
comments received in response to the proposed rule, we published a 
final rule listing the pygmy-owl as endangered in Arizona (62 FR 10730; 
March 10, 1997). In that final rule we determined that listing in Texas 
was not warranted and that critical habitat designation for the Arizona 
population was not prudent.
    On October 31, 1997, the Southwest Center for Biological Diversity 
filed a lawsuit in Federal District Court in Arizona against the 
Secretary of the Department of the Interior for failure to designate 
critical habitat for the pygmy-owl and a plant, Lilaeopsis 
schaffneriana var. recurva, (Huachuca water umbel) (Southwest Center 
for Biological Diversity v. Babbitt, CIV 97-704 TUC ACM). On October 7, 
1998, Alfredo C. Marquez, Senior U.S. District Judge, issued an order 
that, along with subsequent clarification from the Court, required 
proposal of critical habitat by December 25, 1998, followed by a final 
determination 6 months later.
    In September 1998, we appointed the Cactus Ferruginous Pygmy-owl 
Recovery Team (Recovery Team),

[[Page 71034]]

comprised of biologists (pygmy-owl experts and raptor ecologists) and 
representatives from affected and interested parties (i.e., Federal and 
State agencies, local governments, the Tohono O'odham Nation, and 
private groups).
    On December 30, 1998, we proposed to designate critical habitat in 
Arizona for the pygmy-owl (63 FR 71820). On April 15, 1999, we released 
the draft economic analysis on proposed critical habitat and reopened 
the public comment period for 30 days (64 FR 18596). On July 12, 1999, 
we published our final critical habitat determination (64 FR 37419), 
essentially designating the same areas as were proposed.
    On January 9, 2001, a coalition of plaintiffs filed a lawsuit with 
the District Court of Arizona challenging the validity of the Service's 
listing of the Arizona population of the pygmy-owl as an endangered 
species and the designation of its critical habitat. On September 21, 
2001, the Court upheld the listing of the pygmy-owl in Arizona but, at 
our request, and without otherwise ruling on the critical habitat 
issues, remanded the designation of critical habitat for preparation of 
a new analysis of the economic and other effects of the designation 
(National Association of Home Builders et al. v. Norton, Civ.-00-0903-
PHX-SRB). The Court also vacated the critical habitat designation 
during the remand. Subsequently the court ordered that we submit the 
proposed rule to the Federal Register on or before November 15, 2002, 
and that we must issue a final rule by July 31, 2003. The plaintiff's 
appeal of the listing decision is still pending.

Draft Recovery Plan

    Restoring an endangered or threatened species to the point where it 
is recovered is a primary goal of our Endangered Species Program. To 
help guide the recovery effort, we prepare recovery plans for most of 
the listed species native to the United States. Recovery plans describe 
actions considered necessary for conservation of the species, establish 
criteria for downlisting or delisting them, and estimate time and cost 
for implementing the recovery measures needed. A final recovery plan 
formalizes the recovery strategy for a species, but is not a regulatory 
document (i.e., recovery plans are advisory documents because there are 
no specific protections, prohibitions, or requirements afforded to a 
species based solely on a recovery plan).
    In September 2002, the Recovery Team developed a proposal for the 
current draft of the recovery plan which outlines a recommended 
recovery strategy for the pygmy-owl. We reviewed and considered the 
pertinent information contained in the current draft recovery plan in 
developing this proposed critical habitat designation because it 
represents the best scientific data available to us. We are required to 
base listing and critical habitat decisions on the best scientific and 
commercial data available at the time (16 U.S.C. Sec.  1533(b)(1)(A)). 
We may not delay making our determinations until more information is 
available, nor can we be required to gather more information before 
making our determination (Southwest Center for Biological Diversity v. 
Babbitt, 215 F. 3d 58 (D.C. Cir. 2000)). This proposal relies upon the 
best scientific and commercial data available to us including the 
biological and habitat information described in the draft recovery 
plan, and recognized principles of conservation biology. However, the 
proposed designation does not include all areas which are identified in 
the draft recovery plan. Instead this proposed critical habitat 
designation includes only those areas that we consider essential to the 
conservation of the species.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management consideration 
or protection and; (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon determination that 
such areas are essential for the conservation of the species. 
Regulations at 50 CFR 424.12(e) further state that areas outside the 
geographical area presently occupied by the species will only be 
designated if presently occupied areas are insufficient to ensure the 
conservation of the species. The term ``conservation,'' as defined in 
section 3(3) of the Act and in 50 CFR 424.02(c), means ``to use and 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 this Act are no longer necessary'' (i.e., 
the species is recovered and removed from the list of endangered and 
threatened species).
    Section 4(b)(2) of the Act requires that we base critical habitat 
proposals upon the best scientific and commercial data available, after 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude areas from critical habitat designation when the benefits of 
exclusion outweigh the benefits of including the areas within critical 
habitat, provided the exclusion will not result in the extinction of 
the species.
    Critical habitat receives protection from the prohibition against 
destruction or adverse modification through required consultation under 
section 7 of the Act with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the adverse modification 
or destruction of proposed critical habitat. Where Federal agency 
action is involved, such as in permitting or funding, critical habitat 
designation can affect private landowners, State, or Tribal activities. 
Aside from the added protection provided under section 7, the Act does 
not provide other forms of protection to lands designated as critical 
habitat.
    Areas outside the critical habitat designation have been, and will 
continue to be, subject to conservation actions that may be implemented 
under section 7(a)(1), the species' regulatory protections afforded by 
the section 7(a)(2) jeopardy standard (see ``Effects of Critical 
Habitat Designation'' section below), and the section 9 take 
prohibition. Federally funded, permitted or implemented projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. 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, habitat conservation plans 
(HCPs) under section 10 of the Act, or other species conservation 
planning efforts if new information available to these planning efforts 
calls for a different outcome.

Methods

    In determining areas that are essential for the conservation of the 
pygmy-owl in Arizona, we used the best scientific information 
available. This information includes habitat descriptions and pygmy-owl 
life history information including: Abbate et al. 1999, 2000, Cartron 
and Finch 2000, Proudfoot and Johnson 2000, Wilcox, et al. 2000. 
Additional information to identify and define specific habitat needs of 
pygmy-owls in Arizona has been gathered since our initial critical 
habitat designation in 1999, including surveys and research by

[[Page 71035]]

the Arizona Game and Fish Department (AGFD). Data from project 
clearance surveys conducted by private consultants were also used to 
help in our understanding of pygmy-owl distribution. We also considered 
preliminary habitat assessment work which has been initiated in limited 
areas of the State, primarily on Bureau of Land Management (BLM) and 
U.S. Forest Service (FS) lands, and initial micro-habitat research 
studies have been conducted by the AGFD. Unpublished data gathered by 
the AGFD with regard to dispersal, numbers, and distribution of pygmy-
owls were also considered.
    The number of known pygmy-owls in the State remains relatively few, 
and the information base regarding the needs of this species is still 
small. This necessitated our reliance on limited information as we 
developed this critical habitat proposal. Recent survey data indicate 
that the majority of known pygmy-owls in Arizona are found in the 
southern portion of its historical range in the State (Abbate et al. 
1996, 1999, 2000, AGFD unpubl. data). Specifically, surveys that have 
been conducted have produced no recent (since 1997) records of pygmy-
owls in the northern and eastern periphery of the historical range, 
such as the riparian habitats along the Gila, San Pedro, and Salt 
Rivers, although the survey effort in these areas has not been 
extensive nor systematic in nature. Most surveys are conducted for 
project-related purposes; therefore, the vast majority of surveys have 
occurred in the NW Tucson area where the greatest amount of development 
is occurring within the current range of the pygmy-owl.
    We reviewed survey information from Arizona and have emphasized 
those areas that contain recent (since 1997), verified (per AGFD 
recommended criteria) records of pygmy-owls in Arizona. Thus, when we 
refer generally to verified sites within the text of this rule, we are 
referring to sites documented since 1997. We determined that using 
sites documented since 1997 would ensure that this proposed designation 
of critical habitat is based on the most recent data that most closely 
represents the current status of the pygmy-owl. Survey effort has been 
the most consistent and extensive since the listing of the pygmy-owl in 
1997. As noted below, a priority action within the draft Recovery Plan 
is to provide protection for all verified sites of pygmy-owls in 
Arizona since 1993. Our emphasis in protecting recent (since 1997) 
verified sites of pygmy-owls is, nonetheless, consistent with the draft 
Recovery Plan in that the areas we have proposed for designation also 
include those sites where pygmy-owls were documented between 1993 and 
1997. In order to maintain genetic and demographic interchange that 
will help maintain the viability of what may be a regional 
metapopulation of pygmy-owls, we included habitat linkages that allow 
movement and dispersal among the areas supporting pygmy-owls. Dispersal 
is the straight line distance a juvenile pygmy-owl travels from its 
nest to the site where it becomes resident. Finally, we recognize that 
maintenance of a viable pygmy-owl population in Arizona is likely 
dependent upon immigration from the population in Sonora, Mexico, and 
that maintaining habitat through which pygmy-owls can move between 
Mexico and the northern portion of the Arizona range is essential to 
the Arizona population's conservation.
    This critical habitat proposal includes four of the five areas 
recommended by the Recovery Team as Special Management Areas (SMAs). 
The fifth SMA was not included based on the lack of recent verified 
pygmy-owl locations in that area, our inability to determine if the SMA 
included the primary constituent elements described in this rule, and 
the Recovery Team's description of this area as needing further 
investigation to confirm its role in recovery. SMAs are those portions 
of certain Recovery Areas (Recovery Areas 1, 2, and 3) that the 
Recovery Team recommended, and we concur, as needing special management 
based primarily on imminent and significant threats, but also on 
occupancy by owls and habitat function (nesting, dispersal, etc.). The 
defining characteristics of the SMAs, i.e., they provide some necessary 
function for pygmy-owls and are under imminent and significant threats, 
indicate that regulation may play an important role in the conservation 
of these areas. Any portion of an SMA that is included in this 
proposal, but does not contain the primary constituent elements, is 
excluded from critical habitat by definition.
    Generally, the proposed system of critical habitat was developed 
based on recent, verified owl sites, the presence of areas that are 
below 1,200 m (4,000 ft) and include one or more of the primary 
constituent elements related to vegetation (see discussion below), the 
average straight-line dispersal distance (8 km (5 mi)) from nest sites 
(AGFD unpubl. data), and the SMAs described above. The average 
dispersal distance was used to define the area that is likely to be 
necessary for the maintenance of existing breeding locations through 
mate replacement and reoccupation of sites through dispersal. The 
average dispersal distance is a measure of central tendency which 
increases the likelihood that the area will actually be used by 
dispersing juvenile pygmy-owls, unlike the maximum or minimum distances 
which are extremes and more likely to be chance events. In addition, 
most (10 out of 16) measured dispersal distances were below the 
average, indicating that using the average dispersal distance accounts 
for the distance documented as typically being used by dispersing 
pygmy-owls (AGFD unpubl. data). Areas proposed for connectivity that 
fall outside the average dispersal distance are still essential for 
pygmy-owls and could potentially be used for dispersal as all proposed 
areas of critical habitat also fall within the maximum dispersal 
distance 34.8 km (21.8 mi) from recent, verified owl locations and are 
considered occupied as described below.
    We have proposed an interconnected system of habitat linkages. All 
proposed Critical Habitat Units (CHUs) support nesting and dispersal 
habitat or are within documented pygmy-owl dispersal distances, and 
thus are likely to be used by dispersing pygmy-owls during certain 
seasons or years. Because the areas included in this proposal are 
likely to be used by pygmy-owls for breeding, feeding, sheltering, or 
dispersing, we considered them to be within the geographic area 
occupied by the species. As with other raptor species (Call 1979), 
pygmy-owl nest sites and occupied territories can vary from year to 
year over the landscape, as well as within a pygmy-owl's home range 
(Abbate 1999, 2000, AGFD unpubl. data). Information on raptors 
indicates that it is not uncommon for sites to be occupied, become 
vacant, and then be reoccupied over time (Woodbridge and Detrich 1994, 
Reynolds et al. 1994). Therefore, although a specific site may be 
unoccupied at one point in time, it may be occupied at a different 
point in time, particularly given that all the areas proposed as 
critical habitat are below 1,200 m (4,000 ft) and include one or more 
of the primary constituent elements related to vegetation, except for 
the few locations without primary constituent elements that we were 
unable to exclude explicitly due to mapping constraints.
    Habitat linkages within the historical range of the pygmy-owl in 
Arizona can play a pivotal role in maintaining this potential Arizona 
metapopulation, especially since the pygmy-owl is capable of dispersal 
up to 34.8 km (21.8 mi) (AGFD unpubl. data). We believe that habitat 
linkages will provide connections for the movement of

[[Page 71036]]

dispersing pygmy-owls among local groups of pygmy-owls on the Tohono 
O'odham Nation, in the Altar Valley, on Organ Pipe Cactus National 
Monument, in northwest Tucson, and in Pinal County. We also believe 
that this interconnected matrix will allow the potential immigration of 
pygmy-owls from Mexico to help maintain the Arizona population. 
Although habitat that allows for dispersal may be marginal for nesting, 
we believe it can provide roosting, perching, foraging, and predator 
avoidance habitat and maintains an important linkage function among 
blocks of nesting habitat both within local groups of pygmy-owls and 
throughout the overall range of the pygmy-owl in Arizona.
    Without habitat linkages, the overall population of pygmy-owls in 
Arizona has is likely to become fragmented to the extent that 
individuals may be unable to disperse and find mates and suitable 
blocks of nesting habitat. Additionally, adequate habitat must be 
available to allow survival of juvenile pygmy-owls and their 
recruitment as breeding adults. We believe this is essential for 
maintaining the current population and hope that this approach will 
facilitate expansion of local populations. In particular, enlargement 
of small, local groups of pygmy-owls by expansion onto adjacent lands 
would not only increase the chances of their long-term survival, but 
would also improve connectivity among local populations by enhancing 
their value as ``stepping stones'' within the distribution of the 
overall population. Low population numbers and fragmented habitat 
reduce the probability that local groups of pygmy-owls will recolonize 
naturally in order to offset population fluctuations and local 
population losses, resulting in the extirpation of this distinct 
population segment.
    As discussed above, the need to connect known pygmy-owl sites and 
local populations with each other is necessary to the maintenance of 
the overall pygmy-owl population in Arizona. All known recent pygmy-owl 
sites and recommended SMAs are included in our proposed critical 
habitat designation. We selected connections for these areas based on 
our knowledge of the existing habitat and on aerial photography. Some 
areas proposed for connectivity fall outside of the 5-mile average 
dispersal distance around known pygmy-owl locations. However, these 
areas are still likely to be occupied because all areas proposed also 
fall within the maximum dispersal distance documented for pygmy-owls in 
Arizona (34.8 km (21.8 mi)) (AGFD unpubl. data), substantiating their 
potential use by dispersing young from known pygmy-owl sites.
    This proposed designation does not include all lands identified as 
Recovery Areas in the draft Recovery Plan, nor does it include all 
areas previously designated as critical habitat (64 FR 37419; July 12, 
1999). Some areas have been added based on pygmy-owl locations 
documented since the previous designation. Areas not being proposed for 
designation that are identified within the draft recovery plan or that 
were included in the previous designation have been excluded based on 
the lack of survey and research information sufficient to allow our 
determination that they are essential to the conservation of the 
species in Arizona. Changes reflected in this proposal as compared to 
the previous designation resulted from a refinement of our 
understanding of the current numbers and distribution of pygmy-owls. We 
are not proposing to include all draft recovery areas nor all areas 
from the previous designation because (1) they do not include any 
recent, verified locations of pygmy-owls; (2) they do not fall within 
the average dispersal distance (8 km (5 mi)) from recent, verified 
pygmy-owl locations; (3) the draft recovery plan indicates that some of 
these areas are in need of further research (i.e., surveys, habitat 
assessment, etc.) and may be used for possible augmentation activities, 
not to protect known pygmy-owl sites; (4) they do not provide 
connectivity proximate to known pygmy-owl sites or SMAs; and (5) some 
of these areas have not been evaluated with regard to current habitat 
suitability (i.e., they are not known to contain the primary 
constituent elements). This does not mean that these areas are not 
possibly beneficial to the species, simply that we could not yet 
determine, based on the best available scientific data, that they are 
essential for the conservation of the species or in need of special 
management and protection. We intend to promote conservation and 
recovery of the pygmy-owl in these areas through the use of other tools 
which may include the reestablishment of pygmy-owls through a section 
10(j) experimental population rule, HCPs, Safe Harbor agreements, and 
section 7 consultations under the jeopardy standard, if applicable.
    In developing this critical habitat proposal we made an effort to 
avoid developed areas such as towns, agricultural lands, and other 
areas unlikely to contribute to pygmy-owl conservation. However, 
limitations on spatial data (e.g., vegetative and other land-cover 
information), plus the difficulty in legally describing particular 
patterns of vegetation, precluded us from mapping critical habitat in 
sufficient detail to exclude all such areas. Therefore, the 1,208,001 
acres within the boundaries does not represent critical habitat 
acreage; only areas within the geographic boundaries that are below 
1,200 m (4,000 ft) and include one or more of the primary constituent 
elements related to vegetation are actually critical habitat. Thus, 
lands without the primary constituent elements are excluded from 
proposed critical habitat by definition. However, these lands account 
for a very small proportion of the total proposed designated area. We 
request that peer reviewers who are familiar with this species review 
the proposed rule (see ``Peer Review'' section below) in order to 
ensure that we have identified those areas that are essential for the 
conservation of the pygmy-owl, and avoided designating unsuitable 
habitat inappropriately.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR Sec.  424.12, in determining which areas to propose as critical 
habitat, we consider those physical and biological features that are 
essential to the conservation of the species and, within areas 
currently occupied by the species, that may require special management 
considerations or protection. These generally include, but are not 
limited to, the following: space for individual and population growth, 
and for normal behavior; food, water, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, or rearing of offspring; and habitats that are protected 
from disturbance or are representative of the historical geographical 
and ecological distributions of a species.
    The specific primary constituent elements required for pygmy-owl 
habitat are derived from the biological needs of the pygmy-owl as 
described below.

Space for Individual and Population Growth and Normal Behavior

    As described previously, pygmy-owls were recorded in association 
with riparian woodlands in central and southern Arizona (Bendire 1892, 
Gilman 1909, Johnson et al. 1987) and are currently found in a variety 
of vegetation communities such as riparian woodlands, mesquite bosques, 
Sonoran desertscrub, semidesert grassland, mesquite grasslands and 
Sonoran savanna grassland communities (see

[[Page 71037]]

Brown 1994 for vegetation community descriptions).
    During the 1990s, nesting pygmy-owls were recorded in the Arizona 
upland subdivision of the Sonoran desert, particularly Sonoran 
desertscrub, and semidesert grasslands (Brown 1994), primarily below 
1,220 m (4,000 ft.) elevation (Wilcox et al. 2000). While pygmy-owls 
will use the upland areas, xeroriparian areas (dry washes) within these 
vegetative communities appear to be especially important (Wilcox et al. 
2000). Sonoran desertscrub communities are characterized by the 
presence of a variety of cacti, large trees, shrubs, and a diversity of 
plant species and vegetation layers. This community includes, but is 
not limited to, palo verde (Cercidium spp.), ironwood (Olneya tesota), 
mesquite, acacia (Acacia spp.), bursage (Ambrosia spp.), desert 
hackberry (Celtis pallida), gray thorn (Zizyphus obtusifolia), and 
columnar cacti such as saguaro and organ pipe (Gilman 1909, Bent 1938, 
van Rossem 1945, Phillips et al. 1964, Monson and Phillips 1981, Davis 
and Russell 1984, Johnson and Haight 1985, Johnson-Duncan et al. 1988, 
Johnsgard 1988, Millsap and Johnson 1988).
    Certain areas within the Altar Valley were historically Sonoran 
savanna grassland; however, with the invasion of mesquite, these areas 
are now more properly classified as Sonoran desertscrub (Brown 1994). 
The Altar Valley has also been described as semidesert grassland and/or 
a mesquite grassland biotic community with Sonoran desertscrub in the 
foothill areas (Abbate et al. 1999, Wilcox et al. 2000). We, therefore, 
include all three of these grassland communities in our description of 
pygmy-owl habitat because they now contain the apparent habitat 
requirements needed by pygmy-owls.
    Xeroriparian areas are utilized by pygmy-owls in desertscrub and 
grassland vegetation communities. Pygmy-owls have been documented using 
xeroriparian drainages for nesting and dispersal (Wilcox et al. 2000). 
Drainages throughout these areas concentrate available moisture 
influencing the diversity and structure of the vegetation. Grasslands 
have experienced the invasion of velvet mesquite in the uplands, and 
there are linear woodlands of various tree species (ash, hackberry, 
mesquite, etc.) along lowland areas and washes. In desertscrub 
communities, xeroriparian sites are characterized by species found in 
the uplands (palo verde, mesquite, acacia, ironwood, etc.) but 
typically grow bigger and occur in higher densities within the 
drainages.
    Pygmy-owls are considered non-migratory throughout their range. 
There are winter (November through January) pygmy-owl location records 
in Organ Pipe Cactus National Monument (R. Johnson unpubl. data 1976, 
1980; Tibbitts, pers. comm. 1997). Major Bendire collected pygmy-owls 
along Rillito Creek near Camp Lowell at present-day Tucson on January 
24, 1872. The University of Arizona Bird Collection contains a female 
pygmy-owl collected in the Tucson area on January 8, 1953 (University 
of Arizona 1995). Similarly, records exist from Sabino Canyon on 
December 3, 1941, and December 25, 1950 (U.S. Forest Service, unpubl. 
data). Research and monitoring conducted by AGFD has documented year-
round occupancy of known home ranges (the area used by pygmy-owls 
throughout the year) (Abbate et al. 1999, 2000). These winter records 
demonstrate that pygmy-owls are found within Arizona throughout the 
year and do not appear to migrate southward to warmer climates during 
the winter months. Therefore, it is important that pygmy-owls have home 
ranges of adequate size to provide for their life history requirements 
throughout the entire year.
    Pygmy-owl dispersal patterns are just beginning to be documented. 
One banded juvenile in Arizona was observed in 1998 approximately 3.9 
km (2.4 mi) from its nest site following dispersal. Five young 
monitored with radio telemetry during 1998 were recorded dispersing 
from 3.5 km (2.17 mi) to 10.4 km (6.5 mi) for an average of 5.9 km (3.6 
mi) (Abbate et al. 1999). In 1999, 6 juveniles in Arizona dispersed 
from 2.3 km (1.4 mi) to 20.7 km (12.9 mi) for an average of 10 km (6.2 
mi) (Abbate et al. 2000). In Arizona, the maximum documented dispersal 
distance is 34.8 km (21.8 mi) (AGFD unpubl. data). Juveniles typically 
disperse from natal areas in July and August and do not appear to 
defend a territory until September. They appear to fly from tree to 
tree instead of long flights and may move up to 1.6 km (1 mi) or more 
in a night (Abbate et al. 1999). Trees of appropriate size and spacing 
appear to be necessary for successful dispersal, but specific data 
describing this pattern are currently unavailable. Once dispersing male 
pygmy-owls settle in a territory (the area defended by a pygmy-owl), 
they rarely make additional movements outside of their home range. For 
example, spring surveys have found male juveniles in the same general 
location as observed the preceding autumn (Abbate et al. 2000). 
However, unpaired female dispersers may make additional movements into 
the subsequent breeding season (AGFD unpubl. data).
    Pygmy-owls typically make short, rapid flights. Observations 
indicate that pygmy-owls rarely fly longer distances than what is 
needed to travel from one tree to an adjacent tree (Abbate et al. 1999, 
2000, AGFD unpubl. data). Pygmy-owls will avoid flying across large 
open areas such as golf courses (Abbate et al. 1999, 2000). Pygmy-owls 
have rarely been observed using areas of high human activity, such as 
high-density (4-5 houses/ac) housing, for normal day-to-day activities 
within a home range, nor during dispersal (AGFD unpubl. data). 
Successful dispersal is dependent on habitats in an appropriate 
configuration that are protected from disturbance.
    Sufficient space must occur within pygmy-owl home ranges to provide 
vegetation of appropriate size and cover for roosting, sheltering, and 
foraging. The area must be adequate to provide for the needs of the 
pygmy-owl on a year-round basis. Population growth can only occur if 
there is adequate habitat in an appropriate configuration to allow for 
the dispersal of pygmy-owls across the landscape. Dispersal habitat 
should provide sufficient cover in an appropriate configuration to 
facilitate movement and reduce mortality factors (predators, prey 
availability, human-related factors, etc.).

Food

    Pygmy-owls typically hunt from perches in trees with dense foliage 
using a perch-and-wait strategy; therefore, sufficient cover must be 
present within their home range for them to successfully hunt and 
survive. Pygmy-owls also hunt by inspecting tree and saguaro cavities 
for other nesting birds, and possibly bats. Their diverse diet includes 
birds, lizards, insects, and small mammals (Bendire 1888, Sutton 1951, 
Sprunt 1955, Earhart and Johnson 1970, Oberholser 1974, Proudfoot 1996, 
Abbate et al. 1996,1999). Observations in Arizona from 1996 through 
1998 indicate that reptiles, birds, mammals, and insects were 44, 23, 
6, and 3 percent, respectively, of pygmy-owl prey deliveries recorded; 
24 percent were unidentified (Abbate et al. 1999). It is likely that 
use of insects was underestimated in these observations because of the 
speed at which they are consumed and the difficulty in observing such 
small prey items. The density of annual plants and grasses, as well as 
shrubs, may be important to enhancing the pygmy-owl's prey base.
    Vegetation communities which provide a diversity of structural 
layers

[[Page 71038]]

and plant species likely contribute to the availability of prey for 
pygmy-owls (Wilcox et al. 2000). Pygmy-owls also utilize different 
groups of prey species on a seasonal basis. For example, lizards, small 
mammals, and insects are utilized as available during the spring and 
summer during periods of warm temperatures (Abbate et al. 1999). 
However, during winter months, when low temperatures reduce the 
activity by these prey groups, pygmy-owls likely turn to birds as their 
primary source of food and appear to expand their use area in response 
to reduced prey availability (Proudfoot 1996). Therefore, conservation 
of the pygmy-owl should include consideration of the habitat needs of 
prey species, including structural and species diversity and seasonal 
availability. Pygmy-owl habitat must provide sufficient prey base and 
cover from which to hunt in an appropriate configuration and proximity 
to nest and roost sites.

Water

    Free-standing water does not appear to be necessary for the 
survival of pygmy-owls. During many hours of research monitoring, 
pygmy-owls have never been observed directly drinking water (Abbate et 
al. 1999, AGFD unpubl. data). It is likely that pygmy-owls meet much of 
their biological water requirements through the prey they consume. 
However, the presence of water may provide related benefits to pygmy-
owls. The availability of water may contribute to improved vegetation 
structure and diversity which improves cover availability. The presence 
of water also likely attracts potential prey species improving prey 
availability.

Reproduction and Rearing of Offspring

    Male pygmy-owls establish territories using territorial-
advertisement calls to repel neighboring males and attract females. 
Usually, pygmy-owls nest as yearlings (Abbate et al. 1999, Gryimek 
1972), and both sexes breed annually thereafter. Territories normally 
contain several potential nest-roost cavities from which responding 
females select a nest. Hence, cavities/acre may be a fundamental 
criteria for habitat selection. Historically, pygmy-owls in Arizona 
used cavities in cottonwood, mesquite, ash trees, and saguaro cacti for 
nest sites (Millsap and Johnson 1988). Recent information from Arizona 
indicates nests were located in cavities in saguaro cacti for all but 
two of the known nests documented from 1996 to 2002 (Abbate et al. 
1996, 1999, 2000, AGFD unpubl. data). One nest in an ash tree and one 
in a eucalyptus tree were the only non-saguaro nest sites (Abbate et 
al. 2000).
    Pygmy-owls exhibit a high degree of site fidelity once territories 
(the area defended) and home ranges (the area used throughout the year) 
have been established (AGFD unpubl. data). Therefore, it is important 
that habitat characteristics within territories and home ranges be 
maintained over time in order for them to remain suitable. This is 
important for established owl sites, as well as new sites established 
by dispersing pygmy-owls.
    Shrubs and large trees also provide protection against predators 
for juvenile and adult pygmy-owls and cover from which they may capture 
prey (Wilcox et al. 2000). Little is known about the rate or causes of 
mortality in pygmy-owls; however, they are susceptible to predation 
from a wide variety of species. Documented and suspected pygmy-owl 
predators include great horned owls (Bubo virginianus), Harris' hawks 
(Parabuteo unicinctus), Cooper's hawks (Accipiter cooperii), screech-
owls (Otus kennicottii), and domestic cats (Felis catus) (Abbate et al. 
2000, AGFD unpubl. data). Pygmy-owls may be particularly vulnerable to 
predation and other threats during and shortly after fledging (Abbate 
et al. 1999). Arizona Game and Fish Department (AGFD) telemetry 
monitoring in 2002 indicated at least three of the nine young were 
killed by predators prior to dispersal during a year when tree species 
failed to leaf out due to drought conditions (AGFD unpubl. data). 
Therefore, cover near nest sites may be important for young to fledge 
successfully (Wilcox et al. 1999, Wilcox et al. 2000). A number of 
fledgling pygmy-owls have perished after being impaled on cholla 
cactus, probably due to undeveloped flight skills (Abbate et al. 1999). 
Conditions which promote the proliferation of cholla (overgrazing, 
vegetation disturbance, etc.) may contribute to this mortality factor. 
Habitat that provides for successful reproduction and rearing of young 
provides trees and cacti that are of adequate size to provide cavities 
in proximity to foraging, roosting, sheltering and dispersal habitats, 
in addition to adequate cover for protection from climatic elements and 
predators in an appropriate configuration in relation to the nest site.
    The primary constituent elements determined necessary for the 
conservation of the pygmy-owl include: (1) Elevations below 1,200 m 
(4,000 ft) within the biotic communities of Sonoran riparian deciduous 
woodlands; Sonoran riparian scrubland; mesquite bosques; xeroriparian 
communities; tree-lined drainages in semidesert, Sonoran savanna, and 
mesquite grasslands; and the Arizona Upland and Lower Colorado River 
subdivisions of Sonoran desertscrub (see Brown 1994 for a description 
of vegetation communities); (2) nesting cavities located in trees 
including, but not limited to cottonwood, willow, ash, mesquite, palo 
verde, ironwood, and hackberry with a trunk diameter of 15 cm (6 in) or 
greater measured 1.4 m (4.5 ft) from the ground, or large columnar 
cactus such as saguaro or organ pipe greater than 2.4 m (8 ft); (3) 
multilayered vegetation (presence of canopy, mid-story, and ground 
cover) provided by trees and cacti in association with shrubs such as 
acacia, prickly pear, desert hackberry, graythorn, etc., and ground 
cover such as triangle-leaf bursage, burro weed, grasses, or annual 
plants. By way of description, preliminary data gathered by AGFD 
indicates 35 percent ground cover at perch sites and 48 percent ground 
cover at nest sites; mid-story cover of 65 percent at perch sites and 
65 percent at nest sites; and 73 percent canopy cover at perch sites 
and 87 percent canopy cover at nest sites (Wilcox et al. 1999) (This 
AGFD information is based on a limited study area, a small sample size, 
and methods used to describe microhabitat characteristics and may have 
only limited applicability in project evaluation); (4) vegetation 
providing mid-story and canopy level cover (this is provided primarily 
by trees greater than 2 m (6 ft) in height) in a configuration and 
density compatible with pygmy-owl flight and dispersal behaviors. 
Within 15-m radius plots centered on nests and perch sites, AGFD has 
documented the mean number of trees and average height of trees for 
Sonoran desertscrub and semidesert grassland areas. The mean number of 
trees per plot in Sonoran desertscrub plots was 12.5 with a mean height 
of 3.95 m. The mean number of trees in semidesert grassland was 28.5 
with a mean height of 8.1 m (Wilcox et al. 2000) (This AGFD information 
is based on a small sample size using a method designed to describe 
microhabitat characteristics. These numbers may have only limited 
applicability in project evaluations); and (5) habitat elements 
configured and human activity levels minimized so that unimpeded use, 
based on pygmy-owl behavioral patterns (typical flight distances, 
activity level tolerance, etc.), can occur during dispersal and within 
home ranges (the total area used on an annual basis).
    We determined that these proposed primary constituent elements of 
critical

[[Page 71039]]

habitat provide for the physiological, behavioral, and ecological 
requirements of the pygmy-owl. The first primary constituent element 
provides the general biotic communities which are known to support 
pygmy-owl habitat in Arizona. We conclude that this element is 
essential to the conservation of the pygmy-owl because the species is 
not known to occur outside of these biotic communities.
    The second primary constituent element provides the components 
necessary for nesting, such as cavity availability and cover. The third 
primary constituent element describes the structural makeup of habitat 
necessary to meet the biological needs of the pygmy-owl such as 
breeding, nesting, roosting, perching, foraging, predator avoidance, 
and thermal cover, and also promotes prey diversity and availability.
    The fourth primary constituent element describes the structural 
makeup of vegetation necessary to meet the biological needs of the 
pygmy-owl related to movements and dispersal. This includes small-scale 
movements for foraging, defense, predator avoidance, pair formation, 
nest site selection, etc., as well as landscape level movements needed 
to promote genetic diversity and expansion of the population.
    The fifth constituent element describes landscape conditions which 
may affect pygmy-owl behavioral patterns and relates to the need to 
protect habitats from various disturbances. Pygmy-owl behavior is not 
typically affected by low levels of human activity or activities which 
are predictable (Abbate et al. 1999, 2000, AGFD unpubl. data). Low-
density (< 3 houses per acre) residential areas and roads with low 
traffic volumes are examples of this type of activity. However, high 
levels of human activities, high-intensity activities, or activities 
which cannot be predicted may affect the areas pygmy-owls will use for 
nesting, foraging and dispersal (AGFD unpubl. data). High-density 
( 3 houses per acre) residential, commercial areas with 
lights and constant high levels of activity or unpredictable activities 
of any level, ball fields, and roads with high traffic volumes are some 
examples of activity levels that could potentially affect pygmy-owl 
behavior and habitat use. Habitat elements should be configured, and 
human activities should be minimized, so dispersal and pygmy-owl 
activities within its home range are not impeded.
    We did not map critical habitat in sufficient detail to exclude all 
developed areas and other lands unlikely to contain primary constituent 
elements essential for pygmy-owl conservation. Within the proposed 
critical habitat boundaries, only lands containing some or all of the 
primary constituent elements (defined above) are proposed as critical 
habitat. Existing features and structures within proposed critical 
habitat, such as buildings; roads; residential landscaping (e.g., mowed 
nonnative ornamental grasses); residential, commercial, and industrial 
developments; and lands above 1,200 m (4,000 ft) do not contain some or 
all of the primary constituent elements. Therefore, these areas are not 
considered critical habitat and are specifically excluded by 
definition.
    Facilitating the movement of juvenile pygmy-owls to establish 
breeding sites, as well as movements among currently known local 
populations of pygmy-owls, is important for dispersal and gene flow, 
and providing such connectivity is a widely accepted principle of 
conservation biology. Thus, portions of CHUs may function primarily to 
provide such connectivity within and among CHUs and may contain only 
the primary constituent elements required for dispersal, but we 
recognize the essential nature of such connectivity to the persistence 
of pygmy-owls in Arizona.
    We are soliciting public comments, information, or data which will 
help us evaluate whether the areas we have proposed are essential for 
the conservation of the pygmy-owl. We seek public comment on all areas 
within the pygmy-owl's current and historical range in Arizona, 
including whether any of these or other areas should be included or 
excluded from the final designation. As stated previously, if new 
information indicates that proposed CHUs are inappropriate or that 
there are additional areas that are essential for the conservation of 
the species in Arizona, we could revise the designation of critical 
habitat as appropriate (50 CFR 424.12(g)). The addition of any new 
areas to the current proposal will require us to start the proposal 
process again by publishing a new proposed rule and obtaining public 
comment before making a final determination.

Proposed Critical Habitat

    The proposed CHUs encompass all of the verified, recent sites 
occupied by pygmy-owls in Arizona, with the exception of pygmy-owls 
located on the Tohono O'odham Nation (see ``Exclusions Under Section 
4(b)(2)'' section of this rule). Each CHU contains recent documented 
occurrences of pygmy-owls. The CHUs were configured by evaluating 
topography, vegetation, and our current understanding of pygmy-owl 
habitat suitability and dispersal capabilities to select areas that 
form an interconnected system of habitat supported by the principles of 
conservation biology. New pygmy-owls continue to be found each year 
within the proposed CHUs. Consequently, we believe that continued 
surveys will detect additional sites occupied by pygmy-owls within 
these proposed CHUs.
    Table 1 presents a comparison of the 1999 designation of pygmy-owl 
critical habitat and our current proposal. A brief summary of changes 
to the initial designation are included. Table 2 shows the approximate 
acreage of proposed critical habitat by land ownership and county. 
Areas in Pima and Pinal Counties, Arizona, that are proposed as 
critical habitat have been divided into CHUs (see maps in the ``Rule 
Promulgation'' section). Critical habitat for the pygmy-owl includes 
habitat within the CHUs which contain areas that are below 1,200 m 
(4,000 ft) and include one or more of the primary constituent elements 
related to vegetation, as described above. A brief description of each 
CHU and our reasons for proposing those areas as critical habitat are 
presented below.

[[Page 71040]]



             Table 1.--Comparison of the 1999 Critical Habitat Designation With the Current Proposal
----------------------------------------------------------------------------------------------------------------
               Former designation (64 FR 37419)                                 Current proposal
----------------------------------------------------------------------------------------------------------------
              Unit                 Acres        Description            Unit           Acres       Description
----------------------------------------------------------------------------------------------------------------
1..............................    159,811  Extended from the   1.................    435,464  Extends eastward
                                             Mexican border                                     to include the
                                             northward between                                  Buenos Aires NWR
                                             the Buenos Aires                                   and recent owl
                                             National Wildlife                                  locations;
                                             Refuge (NWR) and                                   northward to
                                             the Tohono                                         include recent
                                             O'odham Nation,                                    owl sites and
                                             but did not                                        habitat for
                                             include the                                        dispersal
                                             Buenos Aires NWR.
2, 3...........................     47,678  Strip of potential  2.................    179,805  Includes the
                                             habitat that                                       former Unit 3
                                             connected the                                      and extends
                                             Tohono O'odham                                     northward to
                                             Nation to Saguaro                                  provide for
                                             National Park-                                     enhanced
                                             West and Tucson                                    connectivity
                                             Mountain County                                    facilitating
                                             Park. Unit 3 was                                   movement between
                                             a very small unit                                  southern Pinal
                                             designed to                                        Co., the Tucson
                                             provide                                            area, and
                                             connectivity                                       occupied areas
                                             across I-10.                                       to the south and
                                                                                                west. Saguaro
                                                                                                National Park-
                                                                                                West was added.
4..............................     87,352  Unit 4 included     3.................     73,958  This unit is
                                             occupied habitat                                   based on recent
                                             in the Tucson                                      owl locations,
                                             area, which was                                    average
                                             then the most                                      dispersal
                                             dense pygmy-owl                                    distance, and
                                             concentration                                      the Northwest
                                             known in the                                       Tucson and
                                             State.                                             Tortolita Fan
                                                                                                SMAs proposed in
                                                                                                the draft
                                                                                                Recovery Plan.
5a, 5b.........................    211,354  Designated to       4.................     76,161  Much of this unit
                                             provide                                            is not being
                                             connectivity to                                    proposed. The
                                             the riparian                                       remaining
                                             habitat of the                                     portions are
                                             Gila and San                                       designated
                                             Pedro Rivers                                       around recent
                                             north and                                          pygmy-owl
                                             northeast of                                       locations to
                                             Tucson.                                            provide for the
                                                                                                expansion of
                                                                                                this
                                                                                                subpopulation
                                                                                                (see ``Methods''
                                                                                                section).
6..............................    133,351  Encompassed the     None..............  .........  This unit is not
                                             riparian habitats                                  being proposed
                                             of the Gila and                                    for designation
                                             San Pedro Rivers.                                  based on the
                                                                                                lack of recent,
                                                                                                verified
                                                                                                locations and
                                                                                                our inability to
                                                                                                determine the
                                                                                                presence of the
                                                                                                primary
                                                                                                constituent
                                                                                                elements (see
                                                                                                ``Methods''
                                                                                                section).
7..............................     99,542  Connected from      None..............  .........  This unit is not
                                             unit 5a northward                                  being proposed
                                             to and including                                   for designation
                                             the riparian                                       based on the
                                             habitat of the                                     lack of recent,
                                             Salt River.                                        verified
                                                                                                locations and
                                                                                                our inability to
                                                                                                determine the
                                                                                                presence of the
                                                                                                primary
                                                                                                constituent
                                                                                                elements (see
                                                                                                ``Methods''
                                                                                                section).
None...........................  .........  This unit was not   5.................    442,612  This unit
                                             previously                                         includes habitat
                                             designated.                                        recently found
                                                                                                to be occupied
                                                                                                in Organ Pipe
                                                                                                Cactus NM, on
                                                                                                Cabeza Prieta
                                                                                                NWR, and on
                                                                                                largely BLM land
                                                                                                around the Ajo
                                                                                                area.
================================
----------------------------------------------------------------------------------------------------------------


                                     Table 2.--Approximate Critical Habitat Acreage by County and Land Ownership \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                State
                    Unit                                 County                 FWS        BLM        NPS       trust     Private   Other \2\    Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1..........................................  Pima..........................    114,490     22,908          0    233,467     63,310      1,289    435,464
2..........................................  Pima..........................          0     58,189     22,022     25,782     34,967     18,091    159,051
2..........................................  Pinal.........................          0      1,494          0     12,730      6,530          0     20,754
                                             Total.........................          0     59,683     22,022     38,512     41,497     18,091    179,805
3..........................................  Pima..........................          0          0          0     12,072     21,292         60     33,424
3..........................................  Pinal.........................          0      4,295          0     22,391     13,197        651     40,534
                                             Total.........................          0      4,295          0     34,463     34,489        711     73,958
4..........................................  Pinal.........................          0     29,594          0     41,491      5,076          0     76,161
5..........................................  Pima..........................     99,446     84,267    255,509      2,638        752          0    442,612
                                             Total.........................    213,936    200,747    277,531    350,572    145,124     20,091  1,208,001
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Note: acreage estimates are derived from Arizona Land Resource Information System data based on the cited legal descriptions.
\2\ Includes other Federal (BOR, Barry M. Goldwater Range), Military (AZ National Guard), State (AZGFD) and County lands.

.CHU Descriptions

    The following includes general descriptions of each proposed CHU, 
including general land ownership, geographical extent, dominant 
vegetation, general land-use information, and the reason(s) why the 
areas were determined to be essential to pygmy-owl conservation in 
Arizona. Much of the detail in the following CHU descriptions was taken 
from Recovery

[[Page 71041]]

Team documents. Legal descriptions, a general location map, and maps of 
individual CHUs are in the ``Regulation Promulgation'' section of this 
rule.

CHU 1

    CHU 1 extends from the Mexican border northward approximately 80 km 
(50 mi) through the Altar Valley along the eastern edge of the Tohono 
O'odham Nation. This CHU includes the Buenos Aires National Wildlife 
Refuge, as well as BLM, State Trust and private lands to the north. 
Numerous washes descend from the Baboquivari Mountains on the west and 
the Sierrita and San Luis Mountains to the east. The Altar and Brawley 
Washes are important valley wash systems. Vegetation is dominated by 
semidesert grassland (also described as Sonoran savanna or mesquite 
grassland (Brown 1994)), but also supports Arizona upland Sonoran 
desertscrub vegetation, particularly in the northern part of this unit. 
Tree species such as mesquite, ash, and hackberry are found in the 
drainages of this unit, while grasses, scattered mesquite, and isolated 
saguaros are found in the upland areas. Documented pygmy-owl use in 
this unit includes both breeding and dispersal. Management issues 
primarily relate to grazing and controlled burning, while secondary 
issues involve residential and commercial development. Illegal border 
crossings and management also impact vegetation and other resources in 
this unit.
    We determine that this area is essential to pygmy-owl conservation 
in Arizona because it contains recent documentation of breeding pygmy-
owl locations and a number of pygmy-owls with unknown breeding status. 
Since 1999, this unit has accounted for approximately 43 percent of the 
known pygmy-owls in Arizona (Harris Environmental Group 1998, Flesch 
1999, Abbate et al. 2000, AGFD unpubl. data). In addition, the CHU is 
contiguous with the Tohono O'odham Nation, which provides important 
connectivity to the west and south and may support breeding pygmy-owls. 
Finally, the area provides connectivity between the pygmy-owls in 
Mexico and the Tohono O'odham Nation with those in the Tucson area (CHU 
2 and 3). CHU 1 contains all of the described primary constituent 
elements, and its primary functions are to provide nesting 
opportunities and connectivity for dispersal.

CHU 2

    This CHU is connected to the northern portion of CHU 1 and the 
Tohono O'odham Nation, providing connectivity and dispersal corridors 
between populations of pygmy-owls in CHUs 1 and 3. This CHU includes 
the western unit of Saguaro National Park and Pima County's Tucson 
Mountain Park and extends westward to the Tohono O'odham Nation, then 
northward and eastward to Interstate 10 to join CHU 3 at points north 
and south. Part of this CHU is within the newly designated Ironwood 
Forest National Monument, which is predominantly composed of BLM land 
but also includes some State Trust and private lands. Vegetation is 
dominated by Arizona upland Sonoran desertscrub and lower Colorado 
River Sonoran desertscrub. This unit also includes some lands on which 
native trees are returning and provide the described conditions for 
connectivity and dispersal (primary constituent element 4). These lands 
were previously used for agricultural purposes and have been retired. 
Much of CHU 2 is under Federal administration (BLM, Ironwood National 
Monument, Saguaro National Park), but there is some State Trust and 
private lands, particularly in the northern part of the unit. No single 
land use dominates this CHU; mining, agriculture, grazing, development, 
and recreation are present. Impacts to pygmy-owl habitat are also 
occurring from the constant movement of individuals and groups crossing 
the border illegally through this unit.
    An important purpose of this CHU is to allow for dispersal and 
other movements of pygmy-owls among CHU 1, CHU 3, CHU 4 and the Tohono 
O'odham Nation. Movement among these areas is necessary for the 
maintenance and expansion of pygmy-owl subpopulations found within 
these CHUs. There is a known pygmy-owl site located in the southeastern 
portion of this CHU; however, in general there has been a lack of 
survey effort in this unit.
    We determine that this CHU is essential to pygmy-owl conservation 
in Arizona because it provides connectivity between occupied CHUs 1, 3, 
4, and the Tohono O'odham Nation. This CHU provides breeding, roosting, 
perching, and foraging habitat (constituent elements 1, 2, and 3) and 
maintains an important linkage function among blocks of nesting habitat 
both locally and over the pygmy-owl's range (constituent element 4) 
that is essential to the pygmy-owl's conservation (see discussion 
above). Human activities and development are dispersed, and this unit 
also contains park lands resulting in conditions associated with 
primary constituent element 5. The primary function of this unit is for 
connectivity, but may become more important with regard to nesting as 
the overall pygmy-owl's population expands.

CHU 3

    This CHU lies primarily northeast of Interstate 10 and extends from 
northwest Tucson into southern Pinal County. The boundaries of this 
unit are based on the recommended Northwest Tucson and Tortolita Fan 
SMAs found in the draft pygmy-owl recovery plan. The dominant 
vegetation is Arizona upland Sonoran desertscrub, and the area contains 
stands of trees including ironwood, mesquite, palo verde, and other 
species important for pygmy-owl roosting, perching, foraging and 
predator avoidance (primary constituent elements 1, 3 and 4). Saguaros 
occur in relatively high densities and are used for nesting (primary 
constituent element 2). Based on our current understanding, this CHU 
includes the most contiguous and highest-quality pygmy-owl habitat in 
Arizona (Wilcox et al. 1999, Wilcox et al. 2000). The southern portion 
of this CHU is mostly privately owned, the central portion is primarily 
State Trust, while the rest of the CHU is a mixture of private, State, 
and BLM lands.
    This CHU contains a high density of active pygmy-owl nesting 
territories and dispersal pathways threatened by existing and on-going 
land uses, affecting primary constituent element 5. It has one of the 
highest known densities of pygmy-owls in Arizona, and is one of only 
four areas in the State with documented breeding pygmy-owls. Since 
1999, CHU 3 has accounted for 35 percent of the known pygmy-owls in 
Arizona and 40 percent of the known nests (Abbate et al. 1999, 2000, 
AGFD unpubl. data). Therefore, the primary purpose of this CHU is to 
provide and protect adequate breeding habitat for the maintenance and 
expansion of this local population. Dispersal pathways within the 
southern portion of this CHU are limited, and so this CHU also protects 
remaining areas of connectivity for movement within this CHU and among 
adjacent CHUs. Some of the private land within this CHU has been 
developed and would not be considered critical habitat if it does not 
contain the primary constituent elements. Development pressure 
continues to be the main activity affecting conservation of the species 
in this CHU. We determine that this CHU remains an essential component 
of pygmy-owl conservation because it supports one of the highest 
densities of breeding pygmy-owls in Arizona, contributes to recruitment 
in the population, contains a significant amount of high-quality 
habitat, and provides all of the primary constituent elements.

[[Page 71042]]

CHU 4

    This CHU occurs in Pinal County and encompasses the northernmost 
extent of this critical habitat proposal, running from the north edge 
of CHU 3 northward to an area approximately 14.4 km (9 mi) north of 
Park Link Drive. The northern terminus of this CHU was defined by the 
average distance juvenile pygmy-owls could disperse from the most 
northern of recent pygmy-owl sites (see discussion in ``Methods'' 
section). Vegetation is almost entirely Arizona upland Sonoran 
desertscrub. Grazing, development, and mining exploration have been 
identified as management issues affecting the species in this area. 
Fires have also contributed to the current vegetation condition 
(increases in exotic grasses and reduction of tree canopy) and will 
likely remain an issue in this unit into the future. These burned areas 
still contain one or more primary constituent elements, but could 
benefit from enhancement or special management. CHU 4 is primarily 
State Trust and BLM lands, with some scattered private holdings.
    This CHU has documented pygmy-owl occupancy (3 sites since 1999 
(Abbate et al. 1999, 2000, AGFD unpubl. data.)), primarily within the 
southern portions. However, much of the unit has not been surveyed, and 
the surveys that have occurred have not been systematic nor regular. 
CHU 4 does contain breeding habitat, and we expect an increased survey 
effort would reveal more pygmy-owl sites. The primary purposes of this 
unit are to maintain and protect occupied sites, provide expanded 
opportunities for breeding, and provide connectivity for dispersal 
within the unit and to CHU 3. We determine that this area is essential 
to the pygmy-owl's conservation in Arizona, as it contains several 
known pygmy-owl locations and provides habitat for breeding as well as 
for pygmy-owls dispersing within this unit and from the breeding areas 
around Tucson. Pygmy-owls have been documented moving between CHUs 3 
and 4 over the past few years (Abbate et al. 1999). We determine that 
this CHU remains an essential component of pygmy-owl conservation 
because it supports breeding pygmy-owls, contributes to recruitment in 
the population, contains a significant amount of high-quality habitat, 
and provides all of the primary constituent elements.

CHU 5

    This CHU runs from the Mexican border northward along the western 
edge of the Tohono O'odham Nation. The CHU is almost entirely under 
Federal ownership, including portions of Cabeza Prieta National 
Wildlife Refuge, Organ Pipe Cactus National Monument, and contiguous 
BLM land in the vicinity of the town of Ajo. This unit also contains a 
small amount of State Trust land. The area consists of Arizona upland 
Sonoran desertscrub and lower Colorado River Sonoran desertscrub. 
Recreation-related activities, undocumented alien traffic and 
management, and grazing on BLM lands are the primary management issues 
in this unit.
    This CHU contains numerous pygmy-owl locations, including breeding 
sites. Since 1999, this CHU has accounted for approximately 21 percent 
of the known pygmy-owls in Arizona (Abbate et al. 1999, 2000, AGFD 
unpubl. data). We determine that this CHU is essential to pygmy-owl 
conservation, as it provides breeding habitat contiguous with known 
pygmy-owls in Mexico and on the Tohono O'odham Nation. The purpose of 
this CHU is to protect and maintain known breeding areas, provide 
connectivity to Mexico and the Tohono O'odham Nation, and allow for 
expansion of this subpopulation through dispersal. Recruitment and 
resulting expansion of the population in this area are necessary for 
the conservation of the species. CHU 5 contains all of the primary 
constituent elements.

Managed Lands

    As part of our process of developing this critical habitat 
proposal, we evaluated existing management plans to determine whether 
they provide sufficient protection and management for the pygmy-owl and 
its habitat such that there is no need for additional special 
management considerations or protection of areas that otherwise would 
qualify as critical habitat. Section 3(5)(i) of the Act defines 
critical habitat as areas on which are found those physical or 
biological features (I) essential to the conservation of the species 
and (II) which may require special management considerations or 
protection. Adequate special management or protection is provided by a 
legally operative plan that addresses essential habitat and that 
provides for the long-term conservation of the species. We consider a 
plan adequate when it: (1) Provides a conservation benefit to the 
species (i.e., the plan must maintain or provide for an increase in the 
species' population, or the enhancement or restoration of its habitat 
within the area covered by the plan); (2) provides assurances that the 
management plan will be implemented (i.e., those responsible for 
implementing the plan are capable of accomplishing the objectives, have 
an implementation schedule, and/or adequate funding for the management 
plan); and (3) provides assurances the conservation plan will be 
effective (i.e., it identifies biological goals, has provisions for 
reporting progress, and is of a duration sufficient to implement the 
plan and achieve the plan's goals and objectives). If an area provides 
physical and biological features essential to the conservation of the 
species, and also is covered by a plan that meets these criteria, then 
such an area does not constitute critical habitat as defined by the Act 
because the primary constituent elements found there are not in need of 
special management.
    It is possible that some of the areas proposed (e.g., national 
parks/monuments) are already under a management plan that will provide 
for the long-term conservation of the pygmy-owl. We encourage 
landowners to develop and submit management plans and actions that are 
consistent with pygmy-owl conservation that we can evaluate and that 
may remove the necessity of critical habitat regulation. If any 
management plans are submitted during the open comment period, we will 
consider whether these plans provide adequate special management or 
protection for the species. We will use this information in determining 
which, if any, areas should not be included in the final designation of 
critical habitat for the pygmy-owl.

Exclusions Under Section 4(b)(2) for Tribal Lands

    Section 4(b)(2) of the Act requires us to base critical habitat 
designations on the best scientific and commercial data available, 
after taking into consideration the economic and any other relevant 
impact of specifying any particular area as critical habitat. We may 
exclude areas from a critical habitat designation when the benefits of 
exclusion outweigh the benefits of designation, provided the exclusion 
will not result in the extinction of the species.
    As discussed in this rule, we know that pygmy-owls occupy the 
Tohono O'odham Nation, but we have no specific information on the 
numbers or distribution. There is a considerable amount of unsurveyed 
habitat on the Nation and, although we have no means of quantifying 
this habitat, the distribution of recent sightings on non-Tribal areas 
east, west, and south of the U.S. portion of the Nation lead one to 
reasonably conclude that these Tribal lands may support meaningful 
numbers of pygmy-owls. Thus, we believe that Nation lands are important 
to the

[[Page 71043]]

conservation of the pygmy-owl; however, it would be difficult to 
determine which areas on the Nation meet the definition of critical 
habitat due to our lack of information on pygmy-owl numbers and 
distribution. Based on our analysis below we find that the benefits of 
excluding the Nation from the proposed designation of critical habitat 
outweigh the benefits of including them. Therefore, we are not 
proposing to include the lands of the Nation as critical habitat.

(1) Benefits of Inclusion

    We do not believe that designating critical habitat within the 
Nation would provide significant additional benefits for the pygmy-owl. 
Projects on Nation lands with a Federal nexus (e.g., funded, approved 
or carried out by Federal agencies, such as the Bureau of Indian 
Affairs, Indian Health Services, or Federal Highways Administration) 
will trigger section 7 consultation with us if the projects affect 
pygmy-owls, regardless of critical habitat. Most projects of a scale 
large enough to impact pygmy-owls will have a Federal nexus. In 
addition, we have received from the Tohono O'odham Nation a document 
entitled A Conservation Strategy for the Federally Endangered Cactus 
Ferruginous pygmy-owl on the Tohono O'odham Nation (Edward D. Manuel, 
Tohono O'odham Nation, in litt. 2002) which outlines the general 
process by which the Nation and Federal agencies will coordinate to 
evaluate and address potential impacts to pygmy-owls related to various 
activities on the Nation. While this document is not sufficient to 
remove the need for special management (see ``Section 3(5)(A) 
Definition'' section above), it does indicate the progress that is 
being made through our efforts to coordinate conservation actions on 
the Nation and the intent of the Nation to conserve the pygmy-owl.
    Because of the extent of the lands within the Nation (approximately 
1.2 million ha (3 million ac)) and the low number of people residing in 
this area, the scope and types of projects being implemented have had 
minimal impacts on the landscape, disturbing less than 300 acres since 
September 1999 (E. Manuel, Tohono O'odham Nation, in litt. 2002). We 
will continue Government-to-Government consultations with the Tohono 
O'odham Nation to address the conservation needs of the pygmy-owl on 
Tribal lands.
    In summary, because any potential impacts to the pygmy-owl from 
future projects will be addressed through the Nation's Conservation 
Strategy or through a section 7 consultation with us under the jeopardy 
standard, we do not believe a designation of critical habitat would 
provide significant additional benefits to the pygmy-owl.

(2) Benefits of Exclusion

    Pursuant to Secretarial Order 3206 American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities and the Endangered Species Act, 
we recognize that we must carry out our responsibilities under the Act 
in a manner that harmonizes the Federal trust responsibility to Tribes 
and Tribal sovereignty while striving to ensure that Indian Tribes do 
not bear a disproportionate burden for the conservation of listed 
species, so as to avoid or minimize the potential for conflict and 
confrontation.
    In accordance with the Presidential Memorandum of April 29, 1994, 
we believe that, to the maximum extent possible, Indian Pueblos and 
Tribes should be the governmental entities to manage their lands and 
Tribal trust resources. The designation of critical habitat would be 
expected to adversely impact our working relationship with the Nation, 
and we believe that Federal regulation through critical habitat 
designation would be viewed as an unwarranted and unwanted intrusion 
into Tribal natural resource programs and may harm our working 
relationship with the Nation which has been beneficial in implementing 
natural resource programs of mutual interest. For example, on April 28, 
1999, the Chairman of the Nation accepted an invitation to partner with 
Pima County in developing the Sonoran Desert Conservation Plan. 
Representatives from the Nation have participated in the Sonoran Desert 
Conservation Plan planning process, including expert committees and 
education sessions. Moreover, during 1999, the Service's Region 2 
Native American Liaison met with representatives of the Nation to 
discuss their relationship with Cabeza Prieta National Wildlife Refuge 
and to further discuss a possible joint venture to survey and manage 
the pygmy-owl on Nation lands. Representatives from the Nation are 
members of both the Implementation and Technical Groups of the Cactus 
Ferruginous Pygmy-Owl Recovery Team. We are now meeting with the Nation 
on a regular basis to develop a statement of relations and to pursue 
the development of a management plan for the natural resources on the 
Nation, which would include the pygmy-owl.
    Pursuant to Secretarial Order 3206, the Service acknowledges our 
unique and distinctive Federal Tribal trust responsibility and 
obligation toward the Nation with respect to lands owned and managed by 
the Nation, Tribal trust resources, and the exercise of Tribal rights. 
Consequently, we are sensitive to the fact that the Tohono O'odham 
culture, religion, and spirituality may involve or relate to animals, 
including the pygmy-owl. We acknowledge the cultural sensitivity of the 
Nation with regard to owls.
    We believe the designation of critical habitat on the Tohono 
O'odham Nation would adversely impact our working relationship with the 
Nation, which has been and is currently beneficial for the conservation 
of the pygmy-owl and other natural resource management programs. We 
believe, as stated in section 4(b)(2) of the Act, that the benefits to 
excluding the Tohono O'odham Nation outweigh the benefits of specifying 
this area as critical habitat. We also do not believe this exclusion 
will result in extinction of the pygmy-owl because of the limited 
threats to pygmy-owls and their habitats, and the initiation of a 
conservation program.

Lands Covered Under Existing Habitat Conservation Plans (HCPs)

    Section 10(a)(1)(B) of the Act authorizes the Service to issue to 
non-Federal entities a permit for the incidental take of endangered and 
threatened species. This permit allows a non-Federal landowner to 
proceed with an activity that is legal in all other respects, but that 
results in the incidental taking of a listed species (i.e., take that 
is incidental to, and not the purpose of, the carrying out of an 
otherwise lawful activity). The Act specifies that an application for 
an incidental take permit must be accompanied by a conservation plan, 
and specifies the content of such a plan. The purpose of such a habitat 
conservation plan, or HCP, is to describe and ensure that the effects 
of the permitted action on covered species are adequately minimized and 
mitigated and that the action does not appreciably reduce the survival 
and recovery of the species.
    Within the range of the pygmy-owl, the Service has approved an HCP 
involving the Lazy K Bar Ranch. We evaluated this HCP to determine 
whether it: (1) Provides a conservation benefit to the species; (2) 
provides assurances that the management plan will be implemented; and 
(3) provides assurances the plan will be effective. Approved and 
permitted HCPs are designed to ensure the long-term survival of covered 
species within the plan area. Where we have an approved HCP, the areas 
we ordinarily would designate as critical habitat for the

[[Page 71044]]

covered species will be protected through the terms of the HCPs and 
their implementation agreements.
    The issuance of a permit (under Section 10(a) of the Act) in 
association with an HCP application is subject to consultation under 
Section 7(a)(2) of the Act. While these consultations on permit 
issuance have not specifically addressed the issue of destruction or 
adverse modification of critical habitat for the pygmy-owl, they have 
addressed the very similar concept of jeopardy to pygmy-owls in the 
plan area. Since this HCP addresses land use within the plan 
boundaries, habitat issues within the plan boundaries have been 
thoroughly addressed in the HCP and the consultation on the permit 
associated with the HCP. Our experience is that, under most 
circumstances, consultations under the jeopardy standard will reach the 
same result as consultations under the adverse modification standard. 
Common to both approaches is an appreciable detrimental effect on both 
survival and recovery of a listed species, in the case of critical 
habitat by reducing the value of the habitat so designated. Thus, 
actions satisfying the standard for adverse modification are nearly 
always found to also jeopardize the species concerned, and the 
existence of a critical habitat designation does not materially affect 
the outcome of consultation. Therefore, additional measures to protect 
the habitat from adverse modification are not likely to be required.
    We have reviewed the Lazy K Bar Ranch HCP. A summary of our 
assessment is as follows:
    (1) A current plan or agreement must be complete and provide 
sufficient conservation benefit to the species: A habitat conservation 
plan was submitted and approved in November 1998 which provides for 
continued conservation of the species through the minimization of 
habitat destruction (a maximum of 17 percent disturbance), revegetation 
(approximately 21 ac), and seasonal restrictions to avoid potential 
noise disturbance. These efforts will maintain habitat for breeding and 
dispersal, as well as reduce the potential for disturbance during 
sensitive seasons of the year.
    (2) The plan or agreement must provide assurances that the 
conservation management strategies will be implemented: The coverage 
provided under this HCP and related 10(a)(1)(B) permit is conditional 
upon the implementation of the included terms and conditions. The terms 
and conditions are nondiscretionary. Annual reporting is required 
showing the results of surveys and cavity inspections, as well as 
amount of area graded, plat proposals, and the extent of revegetation 
completed.
    (3) The plan or agreement must provide assurances that the 
conservation management strategies will be effective: Monitoring is a 
key component of this habitat conservation plan. Surveys to detect 
pygmy-owl presence or absence will be conducted on an annual basis. 
Cavity inspections will occur to document the status and occupancy of 
potential nesting cavities. The plan provides for the funding and 
completion of telemetry studies on any pygmy-owls detected so that the 
effects of the project on pygmy-owl habitat use and behavior can be 
determined. The success of vegetation salvage and revegetation efforts 
will be monitored. Photo documentation will be used to track the 
effects to habitat from both development activities and revegetation.
    On the basis of this assessment, we have determined that the area 
addressed by the Lazy K Bar Ranch HCP does not require additional 
special management considerations to conserve the pygmy-owl. Therefore, 
the area covered by the existing, legally operative incidental take 
permit issued for pygmy-owls under section 10(a)(1)(B) of the Act is, 
by definition under Section 3(5)(A) of the Act, not included in this 
proposed designation of critical habitat.
    Lands within HCPs are subject to disposal (e.g., through sale or 
exchange), subject to various sideboards included in each HCP. Proposed 
critical habitat does not include non-Federal lands covered by an 
incidental take permit for pygmy-owls issued under section 10(a)(1)(B) 
of the Act for these HCPs as long as such permit, or a conservation 
easement providing comparable conservation benefits, remains legally 
operative on such lands.
    We also considered exclusion of HCPs under subsection 4(b)(2) of 
the Act, which allows us to exclude areas from critical habitat 
designation where the benefits of exclusion outweigh the benefits of 
designation, provided the exclusion will not result in the extinction 
of the species. We believe that in most instances, the benefits of 
excluding HCPs from critical habitat designations will outweigh the 
benefits of including them. We believe this is the case in relation to 
the Lazy K Bar Ranch HCP that addresses pygmy-owls.
    The benefits of including HCP lands in critical habitat are 
normally nonexistent. The principal benefit of any designated critical 
habitat is that activities in such habitat that may affect it require 
consultation under section 7 of the Act if such actions involve a 
Federal nexus (i.e., an action authorized, funded, or carried out by a 
Federal agency). Such consultation would ensure that adequate 
protection is provided to avoid adverse modification of critical 
habitat. Where HCPs are in place, our experience indicates that this 
benefit is small or non-existent.
    Further, HCPs typically provide for greater conservation benefits 
to a covered species than section 7 consultations because HCPs assure 
the long-term protection and management of a covered species and its 
habitat. Such assurances are typically not provided by section 7 
consultations which, in contrast to HCPs, often do not commit the 
project proponent to long-term special management or protections.
    The development and implementation of HCPs provide other important 
conservation benefits, including the development of biological 
information to guide conservation efforts and assist in species 
recovery and the creation of innovative solutions to conserve species 
while allowing for commercial activity. The educational benefits of 
critical habitat, including informing the public of areas that are 
important for the long-term survival and conservation of the species, 
are essentially the same as those that would occur from the public 
notice and comment procedures required to establish an HCP, as well as 
the public participation that occurs in the development of many 
regional HCPs. For these reasons, then, we believe that designation of 
critical habitat normally has little benefit in areas covered by HCPs.
    The benefits of excluding HCPs from being designated as critical 
habitat include relieving landowners, communities and counties of any 
additional regulatory review that results from such a designation. Many 
HCPs, particularly large regional HCPs, take many years to develop and, 
upon completion, become regional conservation plans that are consistent 
with the recovery of covered species. Imposing an additional regulatory 
review after HCP completion may jeopardize conservation efforts and 
partnerships in many areas and could be viewed as a disincentive to 
those developing HCPs.
    A related benefit of excluding HCP areas is that it would encourage 
the continued development of partnerships with HCP participants, 
including States, local governments, conservation organizations, and 
private landowners, that together can implement conservation actions we 
would be unable to accomplish alone. By excluding areas covered by HCPs 
from

[[Page 71045]]

critical habitat designation, we preserve these partnerships and, we 
believe, set the stage for more effective conservation actions in the 
future.
    In general, we believe the benefits of critical habitat designation 
to be insignificant in areas covered by approved HCPs. We also believe 
that the benefits of excluding HCPs from designation are significant. 
Weighing the small benefits of inclusion against the benefits of 
exclusion, including the benefits of relieving property owners of an 
additional layer of approvals and regulation, together with the 
encouragement of conservation partnerships, would generally result in 
HCPs being excluded from critical habitat designation under section 
4(b)(2) of the Act.

Effects of Critical Habitat Designation

    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions both with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated or proposed. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
Sec.  402. Section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of such a species. If a Federal 
action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with us. 
Section 7(a)(4) of the Act and regulations at 50 CFR Sec.  402.10 
require Federal agencies to confer with us on any action that is likely 
to result in destruction or adverse modification of proposed critical 
habitat.
    Activities on Federal lands that may affect pygmy-owl critical 
habitat will require section 7 consultation. Activities on private or 
State lands that are funded, permitted or carried out by a Federal 
agency, such as a permit from the U.S. Army Corps of Engineers (Corps) 
under section 404 of the Clean Water Act, or a section 402 permit under 
the Clean Water Act from the Environmental Protection Agency (EPA), 
will be subject to the section 7 consultation process if those actions 
may affect critical habitat or a listed species through modification of 
suitable habitat. Through this consultation, we would advise agencies 
whether the permitted actions would likely jeopardize the continued 
existence of the species or adversely modify critical habitat. Federal 
actions not affecting critical habitat or otherwise not affecting 
pygmy-owls, and actions on non-Federal lands that are not federally 
funded, permitted or carried out, will not require section 7 
consultation.
    We will conduct our analyses regarding the destruction or adverse 
modification of critical habitat over the entire critical habitat 
designation and on a unit basis, as dictated by conditions within the 
unit. A consultation focuses on the entire critical habitat area 
designated, unless the critical habitat rule identifies another basis 
for analysis, such as discrete units and/or groups of units necessary 
for different life-cycle phases, units representing distinctive habitat 
characteristics or gene pools, or units fulfilling essential geographic 
distribution requirements. In the case of the pygmy-owl, certain CHUs 
(e.g., CHU 1 and CHU 3) contain habitat for breeding and dispersal 
constrained by existing land uses. In addition, the small population 
size and dispersed distribution of the pygmy-owl make local populations 
within specific CHUs and the ability to maintain connectivity among 
them geographically significant for the maintenance of the overall 
Arizona population of pygmy-owls.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.2 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that we believe would 
avoid the likelihood of jeopardizing the continued existence of listed 
species or the destruction or adverse modification of critical habitat. 
Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation with us for actions for which formal consultation has been 
completed, if those actions may affect proposed or designated critical 
habitat.
    Section 4(b)(8) of the Act requires that we describe in any 
proposed or final regulation that designates critical habitat those 
activities involving a Federal action that may destroy or adversely 
modify such habitat or that may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat 
include those that alter the primary constituent elements to the extent 
that the value of critical habitat for the conservation of the species 
is appreciably diminished. We note that such activities may include, 
but are not limited to:
    (1) Activities such as clearing of vegetation that appreciably 
reduce the value of the critical habitat for breeding;
    (2) Activities such as clearing vegetation, road-building, or 
recreation that appreciably reduce the value of the critical habitat 
for connectivity;
    (3) Activities such as clearing of vegetation, water diversion or 
impoundment, or high-impact recreation that appreciably reduce the 
value of the critical habitat for feeding by pygmy-owls;
    (4) Activities that appreciably reduce the value of the critical 
habitat for other biological purposes (e.g., roosting, rearing, or 
other normal behavior patterns).
    The following federally funded programs and actions that may be 
affected by the proposed designation of critical habitat include, but 
are not limited to:
    (1) Funding or approval of road development, realignment, widening, 
or maintenance by the Federal Highway Administration resulting in the 
significant loss or degradation of the primary constituent elements;
    (2) Funding of housing development by the Federal Housing 
Administration, Veteran's Administration, Small Business Administration 
or Department of Housing and Urban Development resulting in the 
significant loss or degradation of the primary constituent elements;
    (3) Approval of structures and distribution for energy, 
communication, and other utilities by the Federal Energy Regulatory 
Commission or the Federal Communications Commission resulting in the 
loss or degradation of the primary constituent elements;
    (4) Approval of actions related to grazing, mining, recreation, and 
land planning by the Bureau of Land Management, U.S. Forest Service, 
and National Park Service that result in a significant loss or 
degradation of the primary constituent elements;
    (5) Approval of structures or actions by the Bureau of Reclamation 
related to the management of waterways or

[[Page 71046]]

floodways that result in a significant loss or degradation of the 
primary constituent elements; and
    (6) Approval of permits or actions related to the Clean Water Act 
by the Environmental Protection Agency or Corps that result in the 
significant loss or degradation of the primary constituent elements.
    The Act and 50 CFR 17.22 also provide for the issuance of permits 
to carry out otherwise prohibited activities involving endangered 
animal species under certain circumstances. Such permits are available 
for scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities.
    If you have questions regarding whether specific activities may 
constitute adverse modification of critical habitat, contact the Field 
Supervisor, Arizona Ecological Services Field Office (see ADDRESSES 
section). Requests for copies of the regulations on listed wildlife and 
inquiries about prohibitions and permits may be addressed to the 
Service, Branch of Endangered Species/Permits, P.O. Box 1306, 
Albuquerque, NM 87103 (telephone 505/248-6920, facsimile 505/248-6922).

Relationship to Habitat Conservation Plans and Other Planning Efforts

    Section 3(5)(A) of the Act defines critical habitat, in part, as 
those areas requiring special management considerations or protection. 
Section 10(a)(1)(B) of the Act authorizes us to issue permits for the 
take of listed species incidental to otherwise lawful activities. This 
permit allows a non-Federal landowner to proceed with an activity that 
is legal in all other respects, but that results in the incidental 
taking of a listed species. An incidental take permit application must 
be supported by an HCP that identifies conservation measures that the 
permittee agrees to implement for the species to minimize and mitigate 
the impacts of the permitted incidental take. The purpose of the HCP is 
to describe and ensure that the effects of the permitted action on 
covered species are adequately minimized and mitigated, and that the 
action does not appreciably reduce the survival and recovery of the 
species.
    We began working with Pima County in 1998 to develop the Sonoran 
Desert Conservation Plan which identifies and provides for the regional 
or area-wide protection and perpetuation of plants, animals, and their 
habitats, while allowing compatible land-use and economic activity. 
This regional HCP will address the effects of urban growth and propose 
conservation for 55 vulnerable species in Pima County, including the 
pygmy-owl. The Town of Marana is also pursuing an incidental take 
permit for actions within their jurisdiction that will address the 
pygmy-owl and other species. There is one currently operative HCP (Lazy 
K Bar Ranch) that specifically addresses the pygmy-owl and its habitat. 
Based on our evaluation of this HCP we have concluded, pursuant to 
section 3(5)(A) of the Act, that areas within this HCP do not require 
additional special management considerations or protection, and 
consequently we have not included areas within it as proposed critical 
habitat. (See the Managed Lands section, above, for a discussion of the 
factors considered).
    In the event that future HCPs covering the pygmy-owl are developed 
within the boundaries of designated critical habitat, we will work with 
applicants to ensure that the HCPs provide for protection and 
management of habitat areas essential for the conservation of the 
pygmy-owl.
    The HCP development process provides an opportunity for more 
intensive data collection and analysis regarding the use of particular 
habitat areas by pygmy-owls. The process also enables us to conduct 
detailed evaluations of the importance of such lands to the long-term 
survival of the species in the context of constructing a biologically 
configured system of interlinked habitat areas.
    We will provide technical assistance and work closely with 
applicants throughout the development of future HCPs to identify lands 
essential for the conservation of the pygmy-owl and appropriate 
management for those lands. The take minimization and compensation 
measures provided under these HCPs are expected to protect critical 
habitat. Furthermore, we will complete intra-Service consultation on 
our issuances of section 10(a)(1)(B) permits for these HCPs to ensure 
permit issuance will not destroy or adversely modify critical habitat. 
If an HCP that addresses the pygmy-owl as a covered species is 
ultimately approved, we may reassess the critical habitat boundaries in 
light of the HCP.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude areas from critical habitat when such an 
exclusion will result in the extinction of the species. We have 
conducted a robust economic analysis that complies with the ruling by 
the Tenth Circuit Court of Appeals in New Mexico Cattle Growers 
Association, et. al. v. U.S. Fish and Wildlife Service on the effects 
of the proposed critical habitat designation. We are announcing the 
availability of the draft economic analysis with this proposed rule.

Public Comments Solicited

    It is our intent that any final action resulting from this proposal 
will be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. We particularly seek comments 
concerning:
    (1) Whether all areas proposed for designation are essential to the 
conservation of the species;
    (2) Whether any lands within the Tohono O'odham Nation should be 
included in the designation;
    (3) Whether the benefits of excluding specific areas will outweigh 
the benefits of including those areas as critical habitat;
    (4) Whether any areas included in the proposed designation have 
adequate special management and protection in place such that they do 
not meet the definition of critical habitat;
    (5) Whether we have looked at the right biological factors and 
other relevant data concerning the number and distribution of pygmy-
owls in Arizona, quantity and quality of available pygmy-owl habitat, 
and what habitat is essential to the conservation of the species and 
why. Is there additional information we have not considered?;
    (6) Whether the methodology utilized to delineate the proposed 
critical habitat boundaries is appropriate for determining areas that 
are essential to the conservation of the pygmy-owl (e.g., range of the 
owl, specific sites, and the need for habitat connectivity);
    (7) If the rule accurately reflects the land use practices and 
current or planned activities in the subject areas and their possible 
impacts on proposed critical habitat;
    (8) Whether there are any foreseeable economic or other impacts 
resulting from the proposed designation of critical habitat, including 
any impacts on small entities or families that are not considered in 
the draft economic

[[Page 71047]]

analysis (specifically estimated number of small businesses affected by 
the designation);
    (9) Whether economic and other values associated with designating 
critical habitat for the pygmy-owl such as those derived from non-
consumptive uses (e.g., hiking, camping, bird-watching, enhanced 
watershed protection, improved air quality, increased soil retention, 
``existence values,'' and reductions in administrative costs) were 
included appropriately;
    (10) Whether we properly assessed the available literature 
regarding pygmy-owls;
    (11) If the use of the preliminary SMAs described in the draft 
Recovery Plan is appropriate in delineating critical habitat areas;
    (12) If the areas proposed for designation are essential to the 
conservation of the species;
    (13) Whether we have sufficient information to support designation 
of each of the proposed units;
    (14) What should the relationship be between the recovery plan and 
the critical habitat designations; and
    (15) Have we adequately addressed uncertainty and scientific 
disagreement with respect to all aspects of the proposed designation?
    Prior to making a final determination on this proposed rule, we 
will take into consideration all relevant comments and additional 
information received during the comment period.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will seek the expert opinions of at least three appropriate 
and independent specialists regarding this proposed rule. The purpose 
of such review is to promote listing decisions that are based on 
scientifically sound data, assumptions, and analyses, including input 
from appropriate experts and specialists. We will send these peer 
reviewers copies of this proposed rule immediately following its 
publication in the Federal Register. We will invite these peer 
reviewers to comment, during the public comment period, on the specific 
assumptions and conclusions regarding the proposed designation of 
critical habitat.
    We will consider all comments and information received during the 
90-day comment period on this proposed rule during preparation of a 
final rulemaking. Accordingly, the final decision may differ from this 
proposal. Depending on public comments, information, or data received, 
we will evaluate and make a final determination on the areas that are 
essential to the conservation of pygmy-owl, and critical habitat could 
be revised as appropriate.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. We are scheduling one public hearing on this proposal. We 
will hold this public hearing in the Leo Rich Theater at the Tucson 
Convention Center in Tucson, AZ, on January 23, 2002, from 6:30 p.m. to 
9 p.m. For more information on this hearing, contact the Field 
Supervisor of the Arizona Ecological Services Field office (see 
ADDRESSES section).

Executive Order 12866

    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this notice easier to understand including answers to questions 
such as the following: (1) Are the requirements in the notice clearly 
stated? (2) Does the notice contain technical language or jargon that 
interferes with the clarity? (3) Does the format of the notice 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce its clarity? (4) Is the description of the notice in the 
SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the notice? What else could we do to make the notice 
easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240. You may e-mail your comments to this address: 
[email protected].
    Our practice is to make comments that we receive on this 
rulemaking, including names and home addresses of respondents, 
available for public review during regular business hours. Individual 
respondents may request that we withhold their home address from the 
rulemaking record, which we will honor to the extent allowable by 
Federal law. In some circumstances, we would withhold from the 
rulemaking record a respondent's identity, as allowable by Federal law. 
If you wish for us to withhold your name and/or address, you must state 
this prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, including individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

Required Determinations

Regulatory Planning and Review

    For the purposes of Executive Order 12866, this document is a 
significant rule and has been reviewed by the Office of Management and 
Budget (OMB). A separate consideration of the economic and other 
relevant impacts will be conducted under section 4(b)(2) of the Act.
    We have prepared a draft economic analysis to assist us in 
compliance with section 4(b)(2) as well as Executive Order 12866 and 
other regulatory requirements. Concerning Executive Order 12866, the 
draft analysis indicates that this rule will not have an annual 
economic effect of $100 million or more or adversely affect an economic 
sector, productivity, jobs, the environment, or other units of 
government. Under the Act, critical habitat may not be destroyed or 
adversely modified by a Federal agency action; the Act does not impose 
any restrictions related to critical habitat on non-Federal persons 
unless they are conducting activities funded or otherwise sponsored or 
permitted by a Federal agency.
    As discussed above, Federal agencies would be required to ensure 
that their actions do not destroy or adversely modify designated 
critical habitat of the pygmy-owl. Because of the potential for impacts 
on other Federal agencies' activities, we will review this proposed 
action for any inconsistencies with other Federal agency actions.
    If this rule is finalized we will determine whether it materially 
affects entitlements, grants, user fees, loan programs, or the rights 
and obligations of their recipients, except those involving Federal 
agencies which would be required to ensure that their activities do not 
destroy or adversely modify designated critical habitat. As discussed 
above, we have conducted an economic analysis and determined that this 
rule will not have an annual economic effect of $100 million or more.
    OMB has determined that the critical habitat portion of this rule 
will raise novel legal or policy issues and, as a result, this rule has 
undergone OMB review. The proposed rule follows the requirements for 
proposing critical habitat contained in the Act.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever a Federal

[[Page 71048]]

agency is required to publish a notice of rulemaking for any proposed 
or final rule, it must prepare and make available for public comment a 
regulatory flexibility analysis that describes the effect of the rule 
on small entities (i.e., small businesses, small organizations, and 
small government jurisdictions). However, no regulatory flexibility 
analysis is required if the head of an agency certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities. SBREFA amended the Regulatory Flexibility Act to 
require Federal agencies to provide a statement of the factual basis 
for certifying that a rule will not have a significant economic impact 
on a substantial number of small entities. Based on the information 
available to us at this time, we are certifying that the rule will not 
have a significant effect on a substantial number of small entities. 
However, we intend to consider the information from the addendum to the 
economic analysis prior to our final designation. The following 
discussion explains our rationale and is based upon the information 
contained in the draft Economic Analysis that we are providing for 
comment concurrently with this proposed rule.
    This analysis first determines whether critical habitat potentially 
affects a ``substantial number'' of small entities in counties 
supporting critical habitat areas. While SBREFA does not explicitly 
define ``substantial number,'' the Small Business Administration, as 
well as other Federal agencies, have interpreted this to represent an 
impact on 20 percent or greater of the number of small entities in any 
industry.\1\
---------------------------------------------------------------------------

    \1\ See\\1/2\\ U.S. Small Business Administration, The 
Regulatory Flexibility Act: An Implementation Guide for Federal 
Agencies, 1998. Accessed at: www.sba.gov/advo/laws/rfaguide.pdf\\1/
2\\ on December 3, 2001.
---------------------------------------------------------------------------

Estimated Number of Small Businesses Affected: The ``Substantial 
Number'' Test

    To be conservative, (i.e., more likely to overstate impacts than 
understate them), this analysis assumes that a unique entity will 
undertake each of the projected consultations in a given year, and so 
the number of businesses affected is equal to the total annual number 
of consultations (both formal and informal).\2\
---------------------------------------------------------------------------

    \2\ While it is possible that the same business could consult 
with the Service more than once, it is unlikely to do so during the 
one-year timeframe addressed in this analysis. However, should such 
multiple consultations occur, they would concentrate effects of the 
designation on fewer entities. In such a case, the approach outlined 
here likely would overstate the number of affected businesses.
---------------------------------------------------------------------------

    First, the number of small businesses affected is estimated; \3\
---------------------------------------------------------------------------

    \3\ Note that because these values represent the probability 
that small businesses will be affected during a one-year time 
period, calculations may result in fractions of businesses. This is 
an acceptable result, as these values represent the probability that 
small businesses will be affected by section 7 implementation of the 
Act.
---------------------------------------------------------------------------

    [sbull] Estimate the number of businesses within the study area 
affected by section 7 implementation annually (assumed to be equal to 
the number of annual consultations);
    [sbull] Calculate the percent of businesses in the affected 
industry that are likely to be small;
    [sbull] Calculate the number of affected small businesses in the 
affected industry;
    [sbull] Calculate the percent of small businesses likely to be 
affected by critical habitat.
    This calculation reflects conservative assumptions and nonetheless 
yields an estimate that is still far less than the 20 percent threshold 
that would be considered ``substantial.'' As a result, this analysis 
concludes that a significant economic impact on a substantial number of 
small entities will not result from the designation of critical habitat 
for the pygmy-owl. Nevertheless, an estimate of the number of small 
businesses that will experience effects at a significant level is 
provided below.
    Small businesses in the construction and development industry could 
potentially be affected by the designation of critical habitat for the 
pygmy-owl if the designation leads to significant project modifications 
or delays associated with development. To be conservative, this 
analysis assumes that a unique company will undertake each of the 
projected consultations in a single year and that each of these 
companies will be a small business. Thus, this analysis assumes that 27 
unique companies will consult with the Service on development projects 
over ten years, or approximately 2.7 businesses per year. There are 
approximately 161 residential development companies in the counties in 
which critical habitat units are located.\4\ Thus, approximately 1.7 
percent of small residential development companies in Pima and Pinal 
Counties may be affected by the designation of critical habitat for the 
pygmy-owl annually. Because 1.7 percent reflects conservative 
assumptions and is far less than the 20 percent threshold that would be 
considered ``substantial'', this analysis concludes that a significant 
economic impact on a substantial number of small entities will not 
result from the designation of critical habitat for the pygmy-owl.
---------------------------------------------------------------------------

    \4\ Census Bureau, County Business Patterns, Accessed at: http://www.census.gov/epcd/ cbp/view/cbpview.html on August 26, 2002.
---------------------------------------------------------------------------

    To the extent that the designation of critical habitat for the 
pygmy-owl may lead to an increase in the number of formal consultations 
and project modifications, some mining operations, particularly the 
smaller operators in Pinal County, may be affected by the designation. 
The Service estimates that approximately six consultations are likely 
to occur within pygmy-owl critical habitat areas in the next ten years, 
or approximately 0.6 per year. There are approximately 66 mining 
companies in the counties in which critical habitat units are 
located.\5\ Therefore approximately 0.9 percent of small mining 
companies in Pima and Pinal Counties may be affected by the designation 
of critical habitat for the pygmy-owl annually. Because 0.9 percent 
reflects conservative assumptions and is still less than the 20 percent 
threshold that would be considered ``substantial,'' this analysis 
concludes that a significant economic impact on a substantial number of 
small entities will not result from the designation of critical habitat 
for the pygmy-owl.
---------------------------------------------------------------------------

    \5\ Census Bureau, County Business Patterns, Accessed at: http://www.census.gov/epcd/cbp/ view/cbpview.html on August 26, 2002.
---------------------------------------------------------------------------

Estimated Effects on Small Businesses: The ``Significant Effect'' Test

    Costs of critical habitat designation to small businesses consist 
primarily of the cost of participating in section 7 consultations and 
the cost of project modifications. To calculate the likelihood that a 
small business will experience a significant effect from critical 
habitat designation for the pygmy-owl, the following calculations were 
made:
    [sbull] Calculate the per-business cost. This consists of the unit 
cost to a third party of participating in a section 7 consultation 
(formal or informal) and the unit cost of associated project 
modifications. To be conservative, this analysis uses the high-end 
estimate for each cost.
    [sbull] Determine the amount of annual sales that a company would 
need to have for this per-business cost to constitute a ``significant 
effect.'' This is calculated by dividing the per-business cost by the 
three percent ``significance'' threshold value.
    [sbull] Estimate the likelihood that small businesses in the study 
area will have

[[Page 71049]]

annual sales equal to or less than the threshold amount calculated 
above. This is estimated using national statistics on the distribution 
of sales within industries.\6\
---------------------------------------------------------------------------

    \6\ This probability is calculated based on national industry 
statistics obtained from the Robert Morris Associated Annual 
Statement of Studies: 2001-2002 and from comparison with the SBA 
definitions of small businesses.
---------------------------------------------------------------------------

    [sbull] Based on the probability that a single business may 
experience significant effects, calculate the expected value of the 
number of businesses likely to experience a significant effect.
    [sbull] Calculate the percent of businesses in the study area 
within the affected industry that are likely to be affected 
significantly.
    Small businesses in the construction and development industries 
per-business cost could potentially be $4.3 million. The annual sales 
that a company would need to have for this per-business cost to 
constitute a ``significant effect'' would be $120 million. Based on 
national statistics 11 percent of small businesses in Pima and Pinal 
Counties will have sales in this range. Thus, the expected number of 
small businesses likely to experience a significant effect is 89 
percent of 2.7, or 2.4 businesses annually. This number represents 
approximately 1.4 percent of construction and development companies in 
Pima and Pinal Counties. Because 1.4 percent reflects conservative 
assumptions and is still less than the 20 percent threshold that would 
be considered ``significant,'' this analysis concludes that a 
significant economic impact on a substantial number of small entities 
will not result from the designation of critical habitat for the pygmy-
owl.
    The mining industry's per-business cost could potentially be 
$45,700. The annual sales that a company would need to have for this 
per-business cost to constitute a ``significant effect'' would be $1.5 
million. Based on national statistics 22 percent of small businesses in 
Pima and Pinal Counties will have sales in this range. The expected 
number of small businesses likely to experience a significant effect is 
88 percent of 0.6, or 0.5 businesses annually. This number represents 
approximately or 0.9 percent of mining companies in Pima and Pinal 
Counties. Because 0.9 percent reflects conservative assumptions and is 
still less than the 20 percent threshold that would be considered 
``significant,'' this analysis concludes that a significant economic 
impact on a substantial number of small entities will not result from 
the designation of critical habitat for the pygmy-owl.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
We have a very good consultation history for the pygmy-owl; thus, we 
can describe the kinds of actions that have undergone consultations. 
Within the areas proposed as critical habitat units, the BLM, 
Department of Energy (DOE), and the Federal Energy Regulatory 
Commission (FERC) are likely to undergo section 7 consultation for 
actions relating to energy supply, distribution, or use.
    Since the species was listed in 1997, the BLM has consulted on the 
Safford Resource Management Plan (RMP) and the Phoenix RMP, which 
address utility corridors. There are several other proposed energy 
distribution lines (e.g., the Sonora-Arizona Interconnection Project) 
in the planning phases that involve Federal agencies, including DOE, 
FERC, BLM and the Forest Service, depending on the alternative selected 
and the lands that will be affected. These distribution lines are 
likely to require section 7 consultation for one or several listed 
species that occur along their routes. Measures, including adjustments 
to routes, should be available to minimize and mitigate adverse 
effects.
    While this rule is a significant regulatory action under Executive 
Order 12866, it is not expected to significantly affect energy 
supplies, distribution, or use. Therefore, this action is not a 
significant energy action and no Statement of Energy Effects is 
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), based upon the information available to us through the draft 
Economic Analysis and as described in the ``Regulatory Flexibility 
Act'' section above:
    (1) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any of their 
actions involving Federal funding or authorization must not destroy or 
adversely modify the critical habitat.
    (2) This rule will not produce a Federal mandate of $100 million or 
greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act).

Takings

    In accordance with Executive Order 12630, we have considered 
whether this rule has significant takings implications.
I. Summary of the Action
    We are proposing to designate approximately 1.2 million acres of 
critical habitat for the pygmy-owl. On September 21, 2001, the United 
States District Court for the District of Arizona, in National 
Association of Home Builders et al. v. Norton, Civ.-00-0903-PHX-SRB 
vacated the previous designation of critical habitat for the pygmy-owl 
and ordered us to issue a new proposed rule designating critical 
habitat for the pygmy-owl. This proposed rule is being issued pursuant 
to that order.
II. Assessment of Takings Implications
    The mere promulgation of a regulation, like the enactment of a 
statute, is rarely sufficient to establish that private property has 
been taken unless the regulation on its face denies the property owners 
economically viable use of their land (Agins v. City of Tiburon, 447 
U.S. 255, 260-263 (1980); Hodel v. Virginia Surface Mining and 
Reclamation Ass'n, 452 U.S. 264, 195 (1981)). The designation of 
critical habitat alone does not deny anyone economically viable use of 
their property. The Act does not automatically restrict all uses of 
critical habitat, but only imposes restrictions under section 7(a)(2) 
on Federal agency actions that may result in destruction or adverse 
modification of designated critical habitat. This is not the very rare 
case such as that found in Whitney Benefits, Inc. v. United States, 926 
F.2nd 1169 (Fed. Cir. 1991), in which a statute explicitly prohibits 
the only economically useful activity possible on certain lands and a 
court is able to discern without administrative action that no permit 
could possibly be granted.
    Recognizing that governmental regulation involves adjustment of 
rights for the public good, the court has found that a regulation which 
curtails the most profitable use of property, resulting in a reduction 
in value or limitations on use, likewise does not necessarily result in 
a taking (Andrus v. Allard, 444 U.S. 51, 66 (1979); Agins, 447 U.S. at 
262; Hodel, 452 U.S. at 296). Where a regulation denies property owners 
all economically viable use of their property, then a taking will 
likely occur (Agins, 447 U.S. at 260). However, where regulation does 
not categorically

[[Page 71050]]

prohibit use but merely regulates the conditions under which such use 
may occur, and does not regulate alternative uses, then no taking 
occurs (Hodel, 452 U.S. at 296). With the designation of critical 
habitat, property owners are not denied the economically viable use of 
their land. Use of land is not categorically prohibited but rather 
certain restrictions are imposed upon Federal agency actions which may 
result in the destruction or adverse modification of critical habitat. 
As such, it is not likely that taking occurs.
    Even beyond the above, however, a property owner must establish 
that a ``concrete controversy'' exists before the court may even reach 
the merits of a takings claim (Hodel, 452 U.S. at 294; Agins, 447 U.S. 
at 260). The property owner must show a specific and real impact to 
specific properties before judicial resolution of a takings claim is 
made (MacDonald, Sommer, and Frates v. Yolo County, 447 U.S. 340, 348-
349; Agins, 447 U.S. at 260). The issue is not yet ripe for judicial 
resolution until administrative action is pursued to a final 
determination (Hodel, 452 U.S. at 297; MacDonald, 447 U.S. at 348-349). 
It is likely that, prior to judicial intervention, a solution will be 
reached at the administrative level (Hodel, 452 U.S. at 297). The Act 
provides mechanisms, through section 7 consultation, to resolve 
apparent conflicts between proposed Federal actions, including Federal 
funding or permitting of actions on private land, and the conservation 
of the species, including avoiding the destruction or adverse 
modification of designated critical habitat. Based on our experience 
with section 7 consultations for all listed species, virtually all 
projects--including those that, in their initial proposed form, would 
result in jeopardy or adverse modification determinations in section 7 
consultations--can be implemented successfully with, at most, the 
adoption of reasonable and prudent alternatives. These measures must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation.
    We believe that the takings implications associated with this 
critical habitat designation will be insignificant, even though 
private, State, and Federal lands are included. Impacts of critical 
habitat designation may occur on private lands where there is Federal 
involvement (e.g., Federal funding or permitting) subject to section 7 
of the Act. Impacts on private entities may also result if the decision 
on a proposed action on Federally owned critical habitat could affect 
economic activity on adjoining non-Federal land. Each action would be 
evaluated by the involved Federal agency, in consultation with us, in 
relation to its impact on the pygmy-owl and its designated critical 
habitat. In the unexpected event that extensive modifications would be 
required to a project on private property, it is not likely that the 
economic impacts to the property owner would be of sufficient magnitude 
to support a takings action. We do not anticipates that property values 
will be affected by critical habitat designation, but this will be 
analyzed in our economic analysis. Therefore, we anticipate that this 
critical habitat designation will result in insignificant takings 
implications on these lands.
III. Alternatives to Designating Critical Habitat
    Under the Act, there is no alternative to designation of critical 
habitat. Critical habitat must be designated unless we determine that 
it is not prudent or determinable to do so (16 U.S.C. 1533(b)(6)(C)). 
As described above, we are under court order to complete a rulemaking 
to designate critical habitat for the pygmy-owl. We will further 
consider the economic and other relevant impacts of the designation in 
deciding whether to exclude areas for the designation in the final 
rule.
IV. Financial Exposure
    The designation of critical habitat for the pygmy-owl will not on 
its face cause a taking of private property. Because the Act's critical 
habitat protection requirements apply only to Federal agency actions, 
few, if any, conflicts between critical habitat and private property 
rights should result. No approximation of the financial exposure of the 
Federal government is possible, but it is expected to be insignificant.
    Based on the above assessment, we find that this proposed rule 
designating critical habitat for the pygmy-owl does not pose 
significant takings implications.

Federalism

    In accordance with Executive Order 13132, we have considered 
whether this rule has significant Federalism effects and have 
determined that a Federalism assessment is not required. In keeping 
with Department of the Interior policy, we requested information from 
and coordinated development of this proposed rule with appropriate 
resource agencies in Arizona. We will continue to coordinate any future 
designation of critical habitat for the pygmy-owl with the appropriate 
agencies.
    We do not anticipate that this regulation will intrude on State 
policy or administration, change the role of the Federal or State 
government, or affect fiscal capacity. For example, we have conducted 
many formal consultations with the Corps and EPA over actions related 
to their issuance of permits pursuant to sections 404 and 402, 
respectively, under the Clean Water Act. Because these consultations 
were conducted prior to the original designation of critical habitat, 
while critical habitat was in place, and after critical habitat 
designation for the pygmy-owl was vacated pursuant to court order, we 
do not believe that this designation of critical habitat will have 
significant Federalism effects. If this critical habitat designation is 
finalized, Federal agencies also must ensure, through section 7 
consultation with us, that their activities do not destroy or adversely 
modify designated critical habitat. Nevertheless, we do not anticipate 
that the types of measures, provided by past consultations (e.g., those 
issued from 1997 through 2002), will increase because an area is 
designated as critical habitat. This rule also will not change the 
private property rights within the area proposed to be designated as 
critical habitat. For these reasons, we do not anticipate that the 
designation of critical habitat will change State policy or 
administration, change the role of the Federal or State government, or 
affect fiscal capacity.
    Within some areas the designation of critical habitat could trigger 
additional review of Federal activities under section 7 of the Act, and 
may result in additional requirements on Federal activities to avoid 
destroying or adversely modifying critical habitat. Any action that 
lacked Federal involvement would not be affected by the critical 
habitat designation. Should a federally funded, permitted, or 
implemented project be proposed that may affect designated critical 
habitat, we will work with the Federal action agency and any applicant, 
through section 7 consultation, to identify ways to implement the 
proposed project while minimizing or avoiding any adverse effect to the 
species or critical habitat. In our experience, the majority of such 
projects can be successfully implemented with modifications that avoid 
significant economic impacts to project proponents.
    The designation may have some benefit to these governments in that 
the areas essential to the conservation of the species would be clearly 
defined, and the primary constituent elements of the habitat necessary 
to the survival of the species would be identified. While this 
definition and identification do not alter where and what federally 
sponsored

[[Page 71051]]

activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule would not unduly burden the 
judicial system and would meet the requirements of sections 3(a) and 
3(b)(2) of the Order. We propose to designate critical habitat in 
accordance with the provisions of the Act. The rule uses standard 
property descriptions and identifies the primary constituent elements 
within the designated areas to assist the public in understanding the 
habitat needs of the pygmy-owl.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. This rule will not impose new record-keeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the Ninth Circuit Douglas County 
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S. Ct. 698 
(1996).

Government-to-Government Relationship With Indian Pueblos and Tribes

    In accordance with the Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997), the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951), E.O. 13175, and the 
Department of the Interior's requirement at 512 DM 2, we understand 
that recognized Federal Indian Pueblos and Tribes must be related to on 
a Government-to-Government basis. Therefore, we are soliciting 
information from the Indian Pueblos and Tribes and will arrange 
meetings with them during the comment period on potential effects to 
them or their resources that may result from critical habitat 
designation.
    We have met with representatives of the Tohono O'odham Nation and, 
based on the Section 4(b)(2) of the Act, we have determined that the 
benefits of designating the Nation as critical habitat do not outweigh 
the benefits of excluding them. We also believe that this exclusion 
will not result in the extinction of the pygmy-owl because of the 
limited threats to pygmy-owls and their habitat within the Nation and 
the Nation's initiation of a conservation program. In addition, the 
Recovery Team has not recommended inclusion of the Tohono O'odham 
Nation as a Recovery Area. Consequently, we are not proposing critical 
habitat on the Tohono O'odham Nation.
    Pygmy-owls were recently located on a grazing allotment held by the 
Pascua Yaqui Tribe. These grazing leases include State Trust and 
Federal lands, but are adjacent to lands held in title by the Tribe. It 
will be important to coordinate conservation efforts for the pygmy-owl 
in this area with the Pascua Yaqui Tribe.
    We will continue to work with the Tohono O'odham Nation and the 
Pascua Yaqui Tribe regarding the development of management and 
conservation plans, conservation agreements, grants, and other 
cooperative projects that could contribute to the recovery of pygmy-
owls in Arizona.

References Cited

    A complete list of all references cited in this final rule is 
available upon request from the Arizona Ecological Services Field 
Office (see ``Addresses'' section).

Author

    The primary authors of this notice are the staff at the Arizona 
Ecological Services Field Office (see ``Addresses'' section).

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--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec.  17.95(b) by revising critical habitat for the Pygmy-
owl, cactus ferruginous (Glaucidium brasilianum cactorum), to read as 
follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds. * * *
    CACTUS FERRUGINOUS PYGMY-OWL (Glaucidium brasilianum cactorum)
    (1) Critical habitat units are depicted for Pima and Pinal 
Counties, Arizona, on the maps below. These maps are a graphical 
representation of the geographic boundaries that encompass the proposed 
pygmy-owl critical habitat and are provided for illustrative purposes 
only. The map and GIS files used to create these maps are not the 
definitive source for determining critical habitat boundaries. While we 
make every effort to represent the proposed critical habitat shown on 
these maps as completely and accurately as possible (given existing 
time, resource, data, and display constraints), the maps are for 
reference only; the areas that geographically contain the proposed 
critical habitat are legally described below.
    (2) Within these areas, the primary constituent elements for the 
pygmy-owl are those habitat components that are essential for the 
primary biological needs of foraging (provide sufficient prey base and 
cover from which to hunt in an appropriate configuration and proximity 
to nest and roost sites), nesting (trees and cacti of adequate size to 
support cavities in proximity to foraging, roosting, sheltering and 
dispersal habitats), rearing of young (adequate cover for protection 
from climatic elements and predators in an appropriate configuration in 
relation to the nest site), roosting (provides substrates of adequate 
size and cover), sheltering (provides substrates of adequate size and 
cover), and dispersal (provides adequate cover and configuration to 
facilitate movement and reduce mortality factors, i.e., predators, prey 
availability, human-related factors, etc.). Only areas within these 
geographic boundaries that are below 1,200 m (4,000 ft) and include one 
or more of the primary constituent elements related to vegetation are 
proposed as critical habitat.
    (3) The primary constituent elements include:
    (i) Elevations below 1,200 m (4,000 ft) within the biotic 
communities of Sonoran riparian deciduous woodlands;

[[Page 71052]]

Sonoran riparian scrubland; mesquite bosques; xeroriparian communities; 
tree-lined drainages in semidesert, Sonoran savanna, and mesquite 
grasslands; and the Arizona Upland and Lower Colorado River 
subdivisions of Sonoran desertscrub (see Brown 1994 for a description 
of these vegetation communities);
    (ii) Nesting cavities located in trees including, but not limited 
to, cottonwood, willow, ash, mesquite, palo verde, ironwood, and 
hackberry with a trunk diameter of 15 cm (6 in) or greater measured 1.4 
m (4.5 ft) from the ground, or large columnar cactus such as saguaro or 
organ pipe greater than 2.4 m (8 ft);
    (iii) Multilayered vegetation (presence of canopy, mid-story, and 
ground cover) provided by trees and cacti in association with shrubs 
such as acacia, prickly pear, desert hackberry, graythorn, etc., and 
ground cover such as triangle-leaf bursage, burro weed, grasses, or 
annual plants. By way of description, preliminary data gathered by the 
Arizona Game and Fish Department (AGFD) indicates 35 percent ground 
cover at perch sites and 48 percent ground cover at nest sites; mid-
story cover of 65 percent at perch sites and 65 percent at nest sites; 
and 73 percent canopy cover at perch sites and 87 percent canopy cover 
at nest sites (Wilcox et al. 1999). This AGFD information is based on a 
limited study area, a small sample size, and methods used to describe 
microhabitat characteristics and may have only limited applicability in 
project evaluation;
    (iv) Vegetation providing mid-story and canopy level cover (this is 
provided primarily by trees greater than 2 m (6 ft) in height) in a 
configuration and density compatible with pygmy-owl flight and 
dispersal behaviors. Within 15-m radius plots centered on nests and 
perch sites, AGFD has documented the mean number of trees and average 
height of trees for Sonoran desertscrub and semidesert grassland areas. 
The mean number of trees per plot in Sonoran desertscrub plots was 12.5 
with a mean height of 3.95 m. The mean number of trees in semidesert 
grassland was 28.5 with a mean height of 8.1 m (Wilcox et al. 2000). 
This AGFD information is based on a small sample size using a method 
designed to describe microhabitat characteristics. These numbers may 
have only limited applicability in project evaluations; and
    (v) Habitat elements configured and human activity levels minimized 
so that unimpeded use, based on pygmy-owl behavioral patterns (typical 
flight distances, activity level tolerance, etc.), can occur during 
dispersal and within home ranges (the total area used on an annual 
basis).
    (4) Critical habitat does not include non-Federal lands covered 
under the existing legally operative incidental take permit (Lazy K Bar 
Ranch) for the pygmy-owl issued under section 10(a) of the Act.
    (5) Areas above 1,200 m (4,000 ft) and existing features and 
structures within proposed critical habitat, such as buildings; roads; 
cultivated agricultural land; residential landscaping (e.g., mowed 
nonnative ornamental grasses); residential, commercial, and industrial 
developments; and other features, do not contain the primary 
constituent elements. Therefore, these areas are not considered 
critical habitat and are specifically excluded by definition.
    (6) Note: Index map follows:

[[Page 71053]]

[GRAPHIC] [TIFF OMITTED] TP27NO02.000

    (7) Unit 1. Pima County, Arizona. From USGS Sells, Ariz. 1979; 
Atascosa Mts., Ariz. 1979.; and Silver Bell Mtns., 1994.
    (i) Unit 1: Gila and Salt Principal Meridian, Arizona: T. 14 S., R. 
9 E.,

[[Page 71054]]

secs. 33 to 36; T. 14 S., R. 10 E., secs. 31 to 36; T. 15 S., R. 9 E., 
secs. 1 to 4, 9 to 16, 21 to 36; T. 15 S., R. 10 E., secs. 1 to 36; T. 
16 S., R. 8 E., secs. 25 to 28 and 33 to 36; T. 16 S., R. 9 E., secs. 1 
to 6, 12 to 15 and 19 to 36; T. 16 S., R. 10 E., secs. 1 to 36; T. 17 
S., R. 8 E., secs. 1 to 3, 10 to 16, 21 to 36, and E. \1/2\ of secs. 4 
and 9; T. 17 S., R. 9 E., secs. 1 to 36; T. 17 S., R. 10 E., secs. 1 to 
36; T. 18 S., R. 7 E., secs. 1, 12, and those portions of 2, 11, 13 to 
14, 24, 25 and 36 east of the Tohono O'odham Nation boundary; T. 18 S., 
R. 8 E., secs. 1 to 18, 20 to 36, and those portions of sec. 19 east of 
the Tohono O'odham Nation boundary; T. 18 S., R. 9 E., secs. 1 to 36; 
T. 18 S., R. 10 E., secs. 1 to 36; T. 19 S., R. 7 E., secs. 24, 25, 35, 
36, and those portions of secs. 1, 12, 14, 23, 26, 33 and 34 east of 
the Tohono O'odham Nation boundary; T. 19 S., R. 8 E., secs. 1 to 36; 
T. 19 S., R. 9 E., secs. 1 to 36; T. 19 S., R. 10 E., secs. 1 to 12; T. 
20 S., R. 7 E., secs. 1 to 2, 11 to 15, 22 to 27, 34 to 36, and those 
portions of secs. 3, 9 to 10, 16 to 17, 21, 28 to 29, 32 to 33 east of 
the Tohono O'odham Nation; T. 20 S., R. 8 E., secs. 1 to 36; T. 20 S., 
R. 9 E., secs. 1 to 12, 14 to 22, 27 to 34 and those portions of 13, 23 
to 26, 36 within the boundary of the Buenos Aires N.W.R.; T. 21 S., R. 
7 E., secs. 1 to 4, 9 to 16, 21 to 27, 34 to 36 and those portions of 
secs. 5, 8, 17, 20, 28, 29 east of the Tohono O'odham Nation boundary 
and the portion of sec. 33 north of the Tohono O'odham Nation boundary; 
T. 21 S., R. 8 E., secs. 1 to 36; T. 21 S., R. 9 E., secs. 1 to 11, 14 
to 22, 27 to 33, N \1/2\ of sec. 34, and those portions of 12, 13, and 
24 within the boundary of the Buenos Aires N.W.R.; T. 21 S., R. 10 E., 
those portions of secs. 6, 7, 18 to 20, 29, 30 within the boundary of 
the Buenos Aires N.W.R.; T. 22 S., R. 7 E., secs. 1 to 3, 10 to 15, and 
those portions of secs. 22 to 24 north of Mexico; T. 22 S., R. 8 E., 
secs. 1 to 27 and those portions of secs. 28 to 30, 33 to 36 north of 
Mexico; T. 22 S., R. 9 E., secs. 6 to 7, 18 to 19, 30 to 31; T. 23 S., 
R. 8 E., the portion of sec. 1 north of Mexico; T. 23 S., R. 9 E., the 
portion of sec. 6 north of Mexico and within the boundary of the Buenos 
Aires N.W.R.
    (ii) Note: Map of Unit 1 follows:

[[Page 71055]]

[GRAPHIC] [TIFF OMITTED] TP27NO02.001

    (8) Unit 2. Pima and Pinal counties, Arizona. From USGS Casa 
Grande, Ariz, 1994 and Silver Bell Mountains, Ariz., 1994 maps.
    (i) Unit 2: Gila and Salt Principal Meridian, Arizona: T. 10 S., R. 
9 E.,

[[Page 71056]]

secs. 25 to 36 and those portions of secs. 15 and 22 to 24 south and 
west of the Santa Cruz River's east channel and associated diversion; 
T. 10 S., R. 10 E., secs. 17 to 21, 27 to 33, the portions of sec. 8 
south of Sasco Road, those portions of secs. 34 and 35 north of Pinal 
Air Park Road, and those portions of secs. 9, 15, 16, 22, 23, 25, 26, 
36 west of west edge of pavement of I-10; T. 11 S., R. 9 E., secs. 1 to 
36; T. 11 S., R. 10 E., secs 19 and 30, W. \1/2\ of sec. 20, and W. \1/
2\ of sec. 29; T. 11 S., R. 11 E. that portion of sec. 6 west of west 
edge of pavement of I-10; T. 12 S., R. 9 E., secs. 1 to 17, 19 to 29, 
32 to 35, and W \1/2\ and SW\1/4\ of sec 32; T. 12 S., R. 10 E., secs. 
6 to 7 and 18; T. 12 S., R. 11 E., sec. 36; T. 12 S., R. 12 E., sec. 
17, 20, 29, 31 to 32, and those portions of sec. 8 south of the edge of 
pavement of Avra Valley Road, that portion of sec. 9 west of edge of 
pavement of I-10 and south of the edge of pavement of Avra Valley Road, 
that portion of sec 15 east of the edge of pavement of Interstate 10, 
those portions of sec. 16 east of the west levee/bank of the Santa Cruz 
River, those portions of secs. 21 and 22 within the east and west 
levies of the Santa Cruz River, the portions of secs. 26 and 27 within 
the levees of the Santa Cruz River, E \1/2\ of the SE \1/4\ of sec 34 
and that portion of sec. 34 south and east of the south edge of 
pavement of Cortaro Road and the portion of sec. 34 within the levees 
of the Santa Cruz River, that portion of sec. 35 west of the east levee 
of the Santa Cruz River, and the portion of sec. 36 within the levees 
of the Santa Cruz River; T.13 S., R. 9 E., secs. 1 to 18, 22 to 27, and 
34 to 36; T. 13 S., R.10 E., secs. 7, 18 to 19, 29 to 36, and NW \1/4\ 
of NW \1/4\ of sec. 6, W. \1/2\ of sec. 17, W. \1/2\ of the SW \1/4\ of 
sec. 20; T. 13 S., R. 11 E., secs. 13 to 15, 21 to 28, 31 to 36, S. \1/
2\ of sec. 9, S. \1/2\ of sec. 10, and S. \1/2\ of sec. 11, and N.E.\1/
4\ of sec. 29; T. 13 S., R. 12 E., sec.1 north of the edge of pavement 
of Silverbell Road and west of the east levee of the Santa Cruz River, 
sec. 2 except that portion south and east of Abington Road., sec. 3, SE 
\1/4\ of sec. 4 and the portions of sec. 4 within Saguaro N.P., secs. 5 
to 9, those portions of secs. 10 to 11 north and west of Abington Road, 
NE \1/4\ and S \1/2\ of sec. 12, W \1/2\ of the NE \1/4\ and W \1/2\ of 
sec. 13, E \1/2\ and SW \1/4\ of sec. 14, N \1/2\ of the NW \1/4\ and 
NW \1/4\ of the NE \1/4\ and S \1/2\ of sec. 15, secs. 16 to 22, W \1/
2\ of sec. 23 and that portion of sec. 23 north and west of W. Paseo de 
las Estrallas to N. Calle del Risco to W. Placita del Risco to N. Paseo 
del Barranco to W. Calle de la Busca, and the portion of sec 24 north 
and west of W. Calle de la Busca and Tortolita Road, secs. 28 to 33, 
and that portion of secs. 34 and 35 within saguaro N.P. administrative 
boundary; T. 13 S., R. 13 E., sec. 6 within the channel of the Santa 
Cruz River and Canada del Oro and sec. 7 within the channel of the 
Santa Cruz River and the Rillito River; T. 14 S., R. 9 E., secs. 1 to 3 
and 6 to 12; T. 14 S., R. 10 E., secs. 1 to 12, 25, and those portions 
of secs. 23, 24 and 26 outside the boundary of Tohono O'odham Nation; 
T. 14 S., R. 11 E., secs. 1 to 15, 22 to 36; T. 14 S., R. 12 E., secs. 
4 to 11, 13 to 22, 24, N. \1/2\ of 23, N. \1/2\ of 30, and those 
portions of secs. 1 to 3, 12, and 25 within Tucson Mountain County 
Park; T. 14 S., R. 13 E., those portions of secs. 7, 18, 19, and 28 to 
30 within Tucson Mountain County Park; T. 15 S., R. 11 E., sec. 3 to 7.
    (ii) Note: Map of Unit 2 follows:

[[Page 71057]]

[GRAPHIC] [TIFF OMITTED] TP27NO02.002

    (9) Unit 3. Pima and Pinal counties, Arizona. From USGS Silverbell 
Mountains, Ariz., 1994; Casa Grande, Ariz., 1994 maps.
    (i) Unit 3: Gila and Salt Principal Meridian, Arizona: T. 9 S., R. 
10 E., sec.

[[Page 71058]]

36 and S \1/2\ of sec. 35; T. 10 S., R. 10 E., secs. 1 to 3, 10 to 14, 
24, those portions of secs. 9, 15, 22, 23, 25, 26, 36 east of east edge 
of pavement of I-10, and S \1/2\ of sec. 4 east of the east edge of 
pavement of I-10; T.10 S., R.11 E., secs. 1 to 13, 23 to 27, 31 to 36, 
N \1/2\ of sec. 14, N \1/2\ of sec 15., N \1/2\ of sec. 16, N \1/2\ of 
sec. 17, N \1/2\ of sec. 18, SE \1/4\ of sec. 22, S \1/2\ and NE \1/4\ 
of sec. 28, and S\1/4\ of sec. 29; T.10 S., R.12 E., Sec. 4 to 9, 16 to 
19, N \1/2\ of sec. 1, S \1/2\ of N \1/2\ of sec. 2 and the N \1/2\ of 
S \1/2\ of sec. 2, S \1/2\ of sec. 3, N \1/2\ and SW \1/4\ of sec 10, 
NW \1/4\ of sec. 15, N \1/2\ and SW \1/4\ of sec 20, N \1/2\ and SW \1/
4\ of sec 30, W \1/2\ of sec 31, and those portions of secs. 28, 29, 
31, 32, and 33 within 150 m (495 ft.) of the center of Cottonwood Wash 
and its southern branch; T.11 S., R.11 E., secs. 1 to 5, the portion of 
sec. 6 east of the eastern edge of pavement of I-10, E \1/2\ of sec. 
12, and those portions of secs. 12, 13, 14 and 23 that are east of the 
Central Arizona Project Canal property and within 150 m (495 ft.) of 
the center of Cottonwood Wash; T.11 S., R.12 E., secs. 6, 7, 17, 20, 
21, 25 to 28, 34 to 36, SW \1/4\ of sec. 5, W \1/2\ and SE \1/4\ of 
sec. 8, W \1/2\ of sec 16, E \1/2\ and NW \1/4\ of sec. 18, NE \1/4\ of 
sec. 19, E \1/2\ of Sec 29, E \1/2\ and NW \1/4\ of sec. 33, that 
portion of sec. 5 within 150 m (495 ft.) of the center of Cottonwood 
Wash, and those portions of secs. 3, 9, 10, 19, and 30 within 150 m 
(495 ft) of the center of Cochie Wash; T.11 S., R.13 E., secs. 28 to 
33; T.12 S., R.12 E., secs. 1 to 4, 10 to 14, 24, the E \1/2\ of NE \1/
4\ and the SE \1/4\ of the NE \1/4\ and the NE \1/4\ of the NW \1/4\ of 
sec 5, those portions of secs. 9, 15 to 16, 23 east of the east edge of 
pavement of I-10, N \1/2\ of sec. 25 and the E 3/4 of the S \1/2\ of 
sec 25 excluding the SE \1/4\ of the SE \1/4\, and the portions of sec. 
26 north of the north edge of pavement of Cortaro Farms Road and east 
of the east edge of pavement of I-10; T12S, R13E, secs. 4 to 9, 16 to 
21, N \1/2\ and E \1/2\ of the SE \1/4\ of sec 30, W \1/2\ of the SW 
\1/4\ of sec. 29 and that portion of sec 29 north of Cortaro Farm Road 
and west of Shannon Road.
    (ii) Note: Map of Unit 3 follows:

[[Page 71059]]

[GRAPHIC] [TIFF OMITTED] TP27NO02.003


[[Page 71060]]


    (10) Unit 4. Pinal County, Arizona. From USGS Casa Grande, Ariz., 
1994 and Mammoth, Ariz., 1986 maps.
    (i) Unit 4: Gila and Salt Principal Meridian, Arizona: T. 8 S., R. 
11 E., secs. 7 to 36; T. 8 S., R. 12 E., secs. 18 to 20, 29 to 33, and 
those portions of secs. 7, 8, 16,17, 21, 22, 27, 28, 34 and 35 west of 
edge of pavement of State Route 79; T. 9 S., R. 11 E., secs. 1 to 36; 
T. 9 S., R. 12 E., secs. 3 to 11, 13 to 36, and those portions of secs. 
1, 2, and 12 west of edge of pavement of State Route 79; T. 9 S., R. 13 
E., secs. 19, 32 and 33.
    (ii) Note: Map of Unit 4 follows:

[[Page 71061]]

[GRAPHIC] [TIFF OMITTED] TP27NO02.004

    (11) Unit 5. Pima County, Arizona. From BLM Gila Bend, Ariz., 1981; 
Ajo, Ariz., 1980; Dateland, Ariz., 1980; Cabeza Prieta Mountains, 
Ariz., 1980; and USGS Lukeville, Ariz.--Sonona,

[[Page 71062]]

1994 and Quitobaquito Hills, Ariz.--Sonora, 1994 maps.
    (i) Unit 5: Gila and Salt Principal Meridian, Arizona: T. 12 S., R. 
5 W., secs. 1 to 5, 8 to 17, 20 to 29, 32 to 36; T. 12 S., R. 4 W., 
secs. 4 to 9, 16 to 21, 28 to 33; T. 13 S. R. 7 W. sec. 36; T. 13 S., 
R. 6 W., secs. 19 to 36; T. 13 S., R. 5 W., secs. 1 to 5, 8 to 17, and 
19 to 36; T. 14 S., R. 10 W., secs. 25 to 28, 32 to 36, and the 
portions of sec. 31 within Pima County, Arizona; T. 14 S., R. 9 W., 
secs. 25 to 36; T. 14 S., R. 8 W., secs. 13 to 16 and 20 to 36; T. 14 
S., R. 7 W., secs. 1 to 4, and 8 to 36; T. 14 S., R. 6 W., secs. 1 to 
36; T. 14 S., R. 5 W., secs. 1 to 36; T. 15 S., R. 10 W., secs. 1 to 5, 
8 to 17, 20 to 29, 32 to 36, and those portions of secs. 6, 7, 18, 19, 
30, and 31 within Pima County, Arizona; T. 15 S., R. 9 W., secs. 1 to 
34; T. 15 S., R. 8 W., secs. 1 to 30; T. 15 S., R. 7 W., secs. 1 to 30; 
T. 15 S., R. 6 W., secs. 1 to 30 and 33 to 36; T. 15 S., R. 5 W., secs. 
1 to 36; T. 15 S., R. 4 W., secs. 4 to 9, 16 to 19, 30 to 31 and those 
portions of 3, 10, 15, 20 to 22, 29, 32 west of the Tohono O'odham 
Nation boundary; T. 16 S., R. 10 W., secs. 1 to 5, 8 to 14, those 
portions of 15 to 18 north of Mexico, and those portions of secs. 6, 7 
and 18 within Pima County, Arizona; T. 16 S., R. 9 W., secs. 3 to 8, 
and sec. 18; T. 16 S., R. 6 W., secs. 1 to 4, 9 to 16, 21 to 28, and 33 
to 36; T. 16 S., R. 5 W., secs. 1 to 36; T. 16 S., R. 4 W., secs. 6 to 
7, 17 to 20, 29 to 33, and those portions of 5, 8 to 9, 16, 21, 26 to 
28, 34, 35 west of Tohono O'odham Nation boundary; T. 17 S., R. 6 W., 
secs. 1 to 4, 9 to 16, 21 to 28, and 35, 36, those portions of secs. 33 
and 34 north of Mexico.; T. 17 S., R. 5 W., secs. 1 to 36; T. 17 S., R. 
4 W., secs. 4 to 9, 16 to 22, 25 to 36, and those portions of secs. 3, 
10, 11, 14, 15, 23, 24 west of Tohono O'odham Nation; T. 18 S., R. 6 
W., those portions of secs. 1 to 3 within Organ Pipe Cactus N.P. and 
north of Mexico; T. 18 S., R. 5 W., secs, 1 to 5, 11, 12 and those 
portions of 6 to 10, 13 to 15 within Organ Pipe Cactus N.P. and north 
of Mexico; T. 18 S., R. 4 W., secs, 1 to 17, 23, 24 and those portions 
of secs. 18 to 22, and 25 to 28 north of Mexico; T. 18 S., R. 3 W., 
secs. 6, 7, 18, 19, and 30, and the portions of sec. 31 north of 
Mexico.

    (ii) Note: Map of Unit 5 follows:


[[Page 71063]]


[GRAPHIC] [TIFF OMITTED] TP27NO02.005


[[Page 71064]]


* * * * *

    Dated: November 15, 2002.
Paul Hoffman,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-29617 Filed 11-26-02; 8:45 am]
BILLING CODE 4310-55-P