[Federal Register Volume 88, Number 138 (Thursday, July 20, 2023)]
[Rules and Regulations]
[Pages 46910-46950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14486]



[[Page 46909]]

Vol. 88

Thursday,

No. 138

July 20, 2023

Part IV





Department of the Interior





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





Fish and Wildlife Service





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





50 CFR Part 17





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

  Federal Register / Vol. 88 , No. 138 / Thursday, July 20, 2023 / 
Rules and Regulations  

[[Page 46910]]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2021-0098; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF25


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened species status under the Endangered Species Act of 1973 
(Act), as amended, for the cactus ferruginous pygmy-owl (Glaucidium 
brasilianum cactorum), a bird subspecies found in Mexico, southern 
Arizona, and southern Texas. This rule adds the subspecies to the List 
of Endangered and Threatened Wildlife. We also finalize a rule under 
the authority of section 4(d) of the Act that provides measures that 
are necessary and advisable to provide for the conservation of this 
subspecies. We concluded that designation of critical habitat is 
prudent and determinable at this time. Critical habitat will be 
proposed in a separate rule-making.

DATES: This rule is effective August 21, 2023.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R2-ES-2021-0098.

FOR FURTHER INFORMATION CONTACT: Heather Whitlaw, Field Supervisor, 
U.S. Fish and Wildlife Service, Arizona Ecological Services Field 
Office, 9828 N 31st Ave., Phoenix, AZ 85051; telephone 602-242-0210. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, a species, 
subspecies, or distinct vertebrate population segment warrants listing 
if it meets the definition of an endangered species (in danger of 
extinction throughout all or a significant portion of its range) or a 
threatened species (likely to become endangered within the foreseeable 
future throughout all or a significant portion of its range). If we 
determine that a species warrants listing, we must list the species 
promptly and designate the species' critical habitat to the maximum 
extent prudent and determinable. We have determined that the cactus 
ferruginous pygmy-owl meets the definition of a threatened subspecies; 
therefore, we are listing it as such. We have determined that the 
designation of critical habitat for the cactus ferruginous pygmy-owl is 
prudent and determinable, and we will propose designation in a separate 
rule. Listing a species as an endangered or threatened species can be 
completed only by issuing a rule through the Administrative Procedure 
Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. This rule lists the cactus ferruginous 
pygmy-owl as a threatened subspecies under the Act and adds it to the 
List of Endangered and Threatened Wildlife. This rule also finalizes a 
rule issued under section 4(d) of the Act (hereafter, referred to as a 
``4(d) rule'').
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that threats to the cactus 
ferruginous pygmy-owl include: (1) Habitat loss and fragmentation from 
urbanization, invasive species, and agricultural or forest production; 
and (2) climate change (effects from current and future changes in 
climate) and climate conditions (effects from current and past 
climate), resulting in hotter, more arid conditions throughout much of 
the subspecies' geographic range. The 4(d) rule would generally 
prohibit the same activities as prohibited for an endangered species 
but would allow exemptions for specific types of education and outreach 
activities already permitted under a Migratory Bird Treaty Act permit, 
surveying and monitoring conducted in Arizona under a state scientific 
activity permit issued by the state, and habitat restoration and 
enhancement activities that improve habitat conditions for the cactus 
ferruginous pygmy-owl.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. Section 3(5)(A) of the Act 
defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, 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 protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat. 
As stated in the proposed listing rule (86 FR 72547, December 22, 
2021), we have determined that the designation of critical habitat for 
the cactus ferruginous pygmy-owl is prudent and will be proposed in a 
separate rule.

Previous Federal Actions

    As described in Previous Federal Actions of our proposed listing 
rule for the cactus ferruginous pygmy-owl (86 FR 72547, December 22, 
2021), we received a petition dated March 15, 2007, from the Center for 
Biological Diversity and Defenders of Wildlife (CBD, DOW; petitioners) 
requesting that we list the cactus ferruginous pygmy-owl as an 
endangered or threatened species under the Act (CBD and DOW 2007, 
entire). On October 5, 2011, we published in the Federal Register (76 
FR 61856) a 12-month finding on the petition to list the pygmy-owl as 
endangered or threatened. Using the currently accepted taxonomic 
classification of the pygmy-owl (Glaucidium brasilianum cactorum), we 
found that listing the pygmy-owl was not warranted throughout all or a 
significant portion of its range, including the petitioned and other 
potential distinct population segment (DPS) configurations. We were 
litigated on this decision (Case 4:12-cv-00627-CKJ), and the court 
found in favor of the

[[Page 46911]]

plaintiffs and remanded the 2011 12-month finding on the 2007 petition 
to list the pygmy-owl (Case 4:14-cv-02506-RM). Under a court 
settlement, we developed a new 12-month finding and published our 
proposed rule to list the pygmy-owl on December 22, 2021 (86 FR 72547).

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the cactus ferruginous pygmy-owl. The SSA team was composed of Service 
biologists, in consultation with other species and subject-matter 
experts. The SSA report represents a compilation of the best scientific 
and commercial data available concerning the status of the subspecies, 
including the impacts of past, present, and future factors (both 
negative and beneficial) affecting the subspecies.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the SSA report. As discussed in 
the proposed rule, we sent the SSA report to five independent peer 
reviewers and received three responses. The peer reviews can be found 
at https://regulations.gov. We also sent the SSA report to 13 partners, 
including Tribes and scientists with expertise in land management, 
pygmy-owl and raptor ecology, and climate science, for review. We 
received review from 11 partners, including State and Federal agencies, 
universities, and nonprofit organizations. In preparing the proposed 
rule, we incorporated the results of these reviews, as appropriate, 
into the SSA report, which was the foundation for the proposed rule and 
this final rule.

Summary of Changes From the Proposed Rule

    Since the publication of the December 22, 2021, proposed rule to 
list the cactus ferruginous pygmy-owl as threatened with a 4(d) rule 
(86 FR 72547), we have made the following changes:
    (1) Per requests from commenters, we have revised the provisions of 
the 4(d) rule. We updated and clarified our description of the habitat 
restoration and enhancement exception to clarify that this exception 
does not include vegetation management along roadways or fuels 
management that includes the removal of trees and large shrubs. We also 
provided additional clarity and guidance on what types of projects 
would be excepted under the 4(d) rule and which would require 
coordination with and approval from the Service. These changes included 
additional clarification regarding conditions under which prescribed 
fire may be excepted under the 4(d) rule and specific guidance on how 
to coordinate with us prior to habitat restoration and enhancement 
projects to ensure that projects qualify for exception under the 4(d) 
rule.
    (2) In the preamble, we now include a more detailed discussion of 
the DPS analysis we undertook, including a description of any pertinent 
new information we have received since our 2011 12-month finding (76 FR 
61856, October 5, 2011).
    (3) Based upon new reports we received from the Arizona Game and 
Fish Department during the comment period, we updated the biological 
information for the subspecies related to surveys, distribution, 
occupancy, and genetic differentiation (AGFD 2021b, pers. comm.; 
Cobbold et al. 2021, entire; Cobbold et al. 2022a, entire; Cobbold et 
al. 2022b, entire). This information did not alter any significant 
findings in the proposed rule.
    (4) A number of commenters provided us with additional references 
to consider as we finalized this rule. We considered these references 
and other references we found while responding to public comments and 
have incorporated them and any associated information in the final rule 
and SSA report as appropriate. See the Summary of New Information Since 
the 2011 12-Month Finding section below for an explanation of where 
these new references are included in issues relevant to our finding and 
determination.
    (5) We added a summary of the new information and changes that have 
occurred since our 2011 12-month finding to clarify the factors that 
contributed to a different determination in this final listing rule. 
This summary is found in Summary of New Information Since the 2011 12-
Month Finding, below.
    (6) In response to a comment received during the public comment 
period, we completed additional analysis on the effects of certain land 
uses in Texas and Arizona over the past decade (2010-2020) on pygmy-owl 
habitat using additional sources of information to the source used by 
the commenter. This further analysis can be found in appendix 6 of the 
SSA report (Service 2022a, appendix 6).

Summary of New Information Since the 2011 12-Month Finding

    This final listing rule results in a different finding than our 
2011 12-month finding. This change in finding is based on an additional 
decade of threats and land-use changes, as well as climate change, 
acting on the landscape within the range of the pygmy-owl. We also used 
a different approach in assessing the status of the pygmy-owl 
throughout its range. We developed a species status assessment for the 
pygmy-owl using the best available information and a team of experts, 
including subject-matter experts, representing a range of agencies, 
Tribal entities, and conservation partners, supported by new spatial 
data and modeling developed subsequent to our 2011 12-month finding (76 
FR 61856, October 5, 2011). Below we summarize the new information 
available since 2011 upon which our 2021 proposed listing rule (86 FR 
72547, December 22, 2021) was based. We have also updated our 
discussion of the DPS finding to include information subsequent to our 
2011 12-month finding (see Distinct Vertebrate Population Segment, 
below).

Taxonomic Classification

    Additional genetic sampling was conducted in Mexico by the Arizona 
Game and Fish Department (AGFD) (Cobbold et al. 2022b, entire). While 
these additional data add to the baseline information we used to 
evaluate the status of the pygmy-owl, these results did not change our 
finding that we lack sufficient information to adopt the proposed 
taxonomic classification (change taxonomic classification to Glaucidium 
ridgwayi cactorum with associated change in distribution) described by 
Proudfoot et al. (2006a, entire; 2006b, entire) and discussed in the 
2011 12-month finding (76 FR 61856, October 5, 2011). Therefore, no 
change to the taxonomic classification of the pygmy-owl has occurred 
since our 2011 12-month finding.

Rangewide Distribution

    The taxonomic classification of the pygmy-owl did not change; thus, 
the general geographic distribution of the pygmy-owl did not change and 
is the same as described in the 2011 12-month finding (76 FR 61856, 
October 5, 2011). However, the analysis in our current finding divided 
the overall range of the pygmy-owl into five separate analysis units. 
Using this smaller scale analysis, we were able to discuss the 
condition of pygmy-owl populations and their habitat within each 
analysis unit, which is a finer resolution analysis than we

[[Page 46912]]

used in 2011. This more detailed analysis can be found in the SSA 
report (Service 2022a, entire), which includes a detailed description 
of each analysis unit. We also accessed additional pygmy-owl locations 
across the range of the pygmy-owl that we did not use in 2011 via the 
Global Biodiversity Information Facility, which included location data 
from such sources as eBird, iNaturalist, and museum specimens (GBIF 
2020, unpaginated).

Climate Change

    The decade that passed between our 2011 12-month finding (76 FR 
61856, October 5, 2011) and our proposed listing rule (86 FR 72547, 
December 22, 2021) has been characterized by ongoing climate impacts to 
pygmy-owl populations and their habitats (Bagne and Finch 2012, entire; 
Coe et al. 2012, entire; Jiang and Yang 2012, entire; Romero-Lankao, et 
al. 2014, p. 1443; Melillo et al. 2014, entire; USGCRP 2018, chapters 
23 and 25). Impacts resulting from climate change such as ongoing 
drought (habitat and prey impacts), increased temperatures (decreased 
productivity), reduced vegetation health and associated impacts to 
pygmy-owl prey availability, and increased fire occurrence (habitat and 
prey impacts) have resulted in negative effects to pygmy-owl abundance 
and distribution, as well as in loss of habitat and increased habitat 
fragmentation (Melillo et al. 2014, entire; Vermote et al. 2014, 
unpaginated; Cook et al. 2015, p. 6; Easterling et al. 2017, pp. 207-
230; USGCRP 2018, chapters 23 and 25; Gonzalez et al. 2018, entire; 
Breshears et al. 2018, p. 1; Williams et al. 2020, p. 317, IPCC 2022, 
entire).
    Enough time has passed since the early predictions of impacts of 
climate change that we have seen evidence of those predicted impacts on 
vegetation communities across the range of the pygmy-owl. Generally, 
these impacts have been in line with or worse than what was predicted. 
New climate models and projections and updated information in general 
were available for our analysis. These projections continue to predict 
impacts at the same or increasing levels upon the landscape in areas 
where the pygmy-owl occurs. This information is discussed in greater 
detail in Climate Change and Climate Conditions, below. Additionally, 
we included climate scientists in our peer and partner review of the 
climate section of the pygmy-owl SSA report, and they provided input 
and updated citations regarding our discussion of climate effects that 
are included in the SSA report and this final listing rule.

Rangewide Habitat Loss

    With the exception of climate change, there is not a single threat 
leading to habitat loss across the range of the pygmy-owl. However, 
habitat loss is occurring across every portion of the range of the 
pygmy-owl. Each of the five analysis units is experiencing varying 
degrees of pygmy-owl habitat loss that, when considered together, 
result in rangewide habitat loss (Thomas et al. 2012, p. 43; Lyons et 
al. 2013, p. 8; Vo 2013, unpaginated; TDC 2019, entire; Texas Land 
Trends 2019, entire; Wied et al. 2020, entire; Mesa-Sierra et al. 2022, 
unpaginated; Burquez 2022, pers. comm.). The 2011 12-month finding did 
not assess local habitat impacts at the level of individual analysis 
units. These more specific descriptions of threats and impacts by 
analysis unit can be found in the SSA report (Service 2022a, appendix 
5) and in Summary of Current Condition of the Subspecies, below.

Status in Arizona

    As in 2011, pygmy-owls continue to be absent from Pinal County and 
around Tucson where they were found as recently as the early 2000s 
(Ingraldi 2020, pers. comm.). Additionally, based on survey efforts in 
2020 and 2021, pygmy-owls can no longer be found reliably in Organ Pipe 
Cactus National Monument for the first time since records have been 
kept (Ingraldi 2020, pers. comm.; AGFD 2021b, pers. comm.). Personal 
communication with Tribal staff indicates that pygmy-owls continue to 
be found on the Tohono O'odham Nation, although comprehensive surveys 
have not been conducted and information on specific locations of pygmy-
owls is not released by the Tohono O'odham Nation (Verwys 2020 and 
2021, pers. comm.). Currently, the known abundance of owls is higher in 
Altar Valley than it was in 2011, likely due to increased survey and 
monitoring under the Pima County Multi-Species Conservation Plan and by 
the AGFD (Flesch 2018a, entire; Ingraldi 2020, pers. comm.; PCOSC 2021, 
entire). However, occupancy in the Altar Valley appears to be down in 
2022, potentially in response to the dry winter of 2021-2022 and 
ongoing drought conditions (AGFD 2022, unpublished data; Service 2022b, 
unpublished data; NDMC 2022, unpaginated).
    Threats related to climate change have increased, including fire 
(Inciweb 2022, unpaginated), invasive species, degraded vegetation 
condition, and reduced prey availability due to drought and impacted 
hydrology including the loss of surface and ground water (BOR 2021, 
entire; NDMC 2022, unpaginated). Development continues to impact 
habitat particularly in areas of northwest Tucson and Pinal County. 
While there is not a direct correlation between acres of pygmy-owl 
habitat lost and human population growth, it is reasonable to find 
that, as human population grows, the amount of native habitat lost or 
fragmented will increase. We looked at recent population growth and 
projections in Arizona as an indication for future urbanization (OEO 
2018, unpaginated; U.S. Census Bureau 2021a, unpaginated; EBRC 2021, 
unpaginated). New, taller border walls have been constructed along all 
border areas occupied by pygmy-owls in Arizona (DHS 2020, unpaginated). 
As discussed in the SSA report, the impacts of this border 
infrastructure on pygmy-owls have not been studied but represent a 
potential barrier to pygmy-owl movements along and across the border.
    We considered a new analysis of Arizona pygmy-owl occupancy (Flesch 
et al. 2017, entire). This report includes an analysis of factors 
contributing to pygmy-owl occupancy in Arizona, as well as factors to 
consider in designing and implementing pygmy-owl conservation actions. 
In addition, a climate change study that was published since our 2011 
12-month finding predicts a reduction in saguaros (Carnegiea gigantea) 
in the Sonoran Desert (Thomas et al. 2012, p. 43). Saguaros are the key 
nesting substrate for pygmy-owls in the Sonoran Desert of Arizona.

Status in Texas

    Threats to the pygmy-owl and pygmy-owl habitat from drought, as 
well as fire, freezes, and hurricanes (Harvey in 2017, Hanna in 2020, 
and Ida in 2021) have all continued in Texas over the past decade (EPA 
2016, unpaginated; Bhatia et al. 2019, entire; Inciweb 2022, 
unpaginated; Bond 2022, unpaginated; NDMC 2022, unpaginated; NIFC 2022, 
unpaginated; NWS 2022, unpaginated). Many of these effects are the 
result of climate change (Romero-Lankao, et al. 2014, p. 1459; EPA 
2016, unpaginated; Gonzalez et al. 2018, entire). Urbanization and 
agricultural development in both Texas and northeastern Mexico (Texas 
Land Trends 2019, entire; USGS 2022, unpaginated; Texas Comptroller 
2020, unpaginated) have continued, likely resulting in increased 
isolation of the Texas population from those in Mexico. No recent 
surveying or monitoring has been conducted in Texas. However, given 
current habitat conditions as outlined in the SSA report, the declines 
in pygmy-owls and pygmy-owl habitat

[[Page 46913]]

documented in the 2011 12-month finding have likely continued, 
resulting in reduced abundance of pygmy-owls. For example, the Texas 
Parks and Wildlife Department recently changed the conservation status 
rank for ferruginous pygmy-owl in Texas from S3:vulnerable to 
S2:imperiled (TPWD 2022, unpaginated). In addition, the number and 
distribution of pygmy-owls in the Lower Rio Grande Valley has declined 
since 1988, likely due to the ongoing loss of riparian habitats along 
the Rio Grande (Leslie 2016, entire).

Status in Northern Sonora

    Our understanding of the habitat needs for pygmy-owls in the 
Sonoran Desert has improved since 2011 as a result of ongoing research 
in northern Sonora (Flesch 2014, entire; Flesch et al. 2015, entire; 
Flesch 2017, entire; Flesch et al. 2017, entire; Cobbold et al. 2021, 
entire; Cobbold et al 2022a, entire). The abundance of pygmy-owls in 
northern Sonora has declined with increasing drought (Flesch et al. 
2017, entire; Flesch 2021, entire). Abundance and densities of pygmy-
owls are, in general, higher farther south in Sonora in thornscrub and 
tropical dry forests and lower in the northern part of northwest Mexico 
(Cobbold et al. 2021, entire; Cobbold et al. 2022a, entire). These data 
are consistent with previous findings (Flesch 2003, entire). Threats 
resulting in reduced vegetation condition and increased habitat 
fragmentation have been documented (Flesch 2014, entire; Flesch et al. 
2015, entire; Flesch et al. 2017, entire; Flesch 2021, entire). In 
2012, a climate change study was published predicting a reduction in 
saguaros in the Sonoran Desert (Thomas et al. 2012, p. 43). Saguaros 
are the key nesting substrate for pygmy-owls in the Sonoran Desert of 
northern Sonora. In addition, a retired Service biologist who led the 
Sonoran Joint Venture provided updated information on the status of 
land use and impacts to pygmy-owls in Sonora (Mesta 2020, pers. comm.).

Status in Remainder of Mexico

    There are no recent pygmy-owl survey or monitoring data for the 
remainder of Mexico, so we continue to have no recent, verified data on 
abundance or occupancy. We used eBird, iNaturalist, and museum specimen 
records to get a general scope of occurrences in these areas, but did 
not use these records to estimate abundance (GBIF 2020, unpaginated; 
Johnston et al. 2021, p. 1266). Ten additional years of threats acting 
on these population groups have impacted the landscape and habitat of 
the pygmy-owl in these areas including extraction of natural resources, 
increases in invasive species, use of pesticides, and the effects of 
climate change such as drought and increased evapotranspiration 
(Enr[iacute]quez and Vazquez-Perez 2017, p. 546, DataMexico 2021, 
unpaginated; Murray-Tortarolo 2021; entire; Mesa-Sierra et al. 2022, 
unpaginated). Specifically, habitat loss and fragmentation has 
increased since 2011 as a result of wood harvesting, agriculture, 
population growth and urbanization, and other land uses (CONAPO 2014, 
p. 25; Enr[iacute]quez and Vazquez-Perez 2017, p. 546; DataMexico 2021, 
unpaginated; Burquez 2022, pers. comm.). Increases in hurricanes in 
northeastern Mexico (EPA 2016, entire) have resulted in impacts to 
pygmy-owl habitat. We also received additional information related to 
the status of the pygmy-owl in Mexico such as the lack of research and 
data, lack of land use planning and government oversight, other 
threats, establishment of preserve areas, and cultural significance 
(Enr[iacute]quez and Vazquez-Perez 2017, p. 546; Enr[iacute]quez 2021, 
pers. comm.).

Conservation Actions

    Implementation of the Pima County Multi-Species Conservation Plan 
has resulted in additional surveys for pygmy-owls on lands controlled 
by Pima County in Arizona. Additional pygmy-owl habitat has been 
protected through conservation planning and habitat acquisition and 
protection as part of implementing this large, regional Pima County 
Habitat Conservation Plan (Pima County 2016, entire; Flesch 2018a, 
entire; PCOSC 2021, entire). Investigation of captive-breeding and 
release to establish new pygmy-owl population groups and to augment 
existing population groups has continued in Arizona (AGFD 2015, 
entire). The Altar Valley Watershed Plan has been developed and will 
contribute to the enhancement of pygmy-owl habitat in Altar Valley, 
Arizona (Altar Valley Watershed Working Group 2022, entire).

Factor A--The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    We evaluated new information related to the effects of present and 
future climate change on vegetation on which the pygmy-owl depends 
(Bagne and Finch 2012, entire; Coe et al. 2012, entire; Jiang and Yang 
2012, entire; Flesch 2014, pp. 113-116; Melillo et al. 2014, entire; 
Romero-Lankao, et al. 2014, p. 1443; Flesch et al. 2015, entire; 
Pearce-Higgins et al. 2015, entire; Deguines et al. 2017, entire; 
Flesch et al. 2017, entire; USGCRP 2018, chapters 23 and 25). The 
incidence of fires, particularly in Arizona and Texas, has increased 
since 2011 (Inciweb 2022, unpaginated). While there is not a direct 
correlation between acres of pygmy-owl habitat lost and human 
population growth, it is reasonable to find that, as human population 
grows, the amount of native habitat lost or fragmented will increase. 
We used updated population growth estimates in the SSA report and this 
final rule (Brinkhoff 2016, unpaginated; HHS 2017, unpaginated; OEO 
2018, unpaginated; INEGI 2021, unpaginated; CONAPO 2014, p. 25; TDC 
2019, entire; Pinal County 2019, p. 126; Gonzales 2020, unpaginated; 
DataMexico 2021, unpaginated; Service 2022a, chapter 7). We also looked 
at more recent information from Mexico related to habitat loss and 
fragmentation, which showed that land uses continue to impact pygmy-owl 
habitat and the occupancy and productivity of pygmy-owls 
(Enr[iacute]quez and Vazquez-Perez 2017, p. 546; Flesch et al. 2017, 
entire). We have also included recent information on the effects of 
buffelgrass on the ecosystems and habitats used by pygmy-owls (Lyons et 
al. 2013, p. 8; Vo 2013, entire, Wied et al. 2020, p. 47; ASDM 2022, 
unpaginated). We also considered new information showing that pygmy-owl 
occupancy decreases in areas of increased roadway size, agricultural 
development, and other factors causing pygmy-owl habitat disturbance 
(Flesch 2017, p. 5; Flesch et al. 2017, entire; Flesch 2021, pp. 12-
14).

Factor B--Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    We have observed a recent increase in visitation by birders (2019 
to present) to known pygmy-owl territories (Flesch 2018b, pers. comm., 
Vaughan 2019, pers. comm.), but we have not studied how that activity 
has affected occupancy and productivity. We also evaluated more recent 
information on the impacts of researchers on birds (Gibson et al. 2015, 
pp. 404-406; Herzog et al. 2020, p. 891).

Factor C--Disease or Predation

    We are not aware of any additional information regarding the 
effects of disease and predation on pygmy-owls since what was included 
in our 2011 12-month finding.

Factor D--The Inadequacy of Existing Regulatory Mechanisms

    Typically, work funded or implemented by Federal agencies complies 
with a number of environmental laws such as the National Environmental 
Policy Act and

[[Page 46914]]

the Endangered Species Act. However, under the Real ID Act, the U.S. 
Department of Homeland Security (DHS) waived environmental compliance 
for much of the border infrastructure work completed recently in 
Arizona and Texas (Fischer 2019, unpaginated; USCBP 2020, unpaginated). 
This work included the construction of taller border fencing with 
lights and associated access roads contributing to habitat loss and 
fragmentation.

Factor E--Other Natural or Manmade Factors Affecting the Species' 
Continued Existence

    A new potential threat to pygmy-owls was identified subsequent to 
our 2011 12-month finding as reported in a study that documented 
pesticides in pygmy-owl feathers and blood (Arrona-Rivera et al. 2016, 
entire). We also evaluated new information related to climate and 
weather impacts on pygmy-owls that affect productivity in pygmy-owls as 
well as pygmy-owl prey species (Flesch 2014, pp. 113-116; Flesch et al. 
2015, entire; Pearce-Higgins et al. 2015, entire; Deguines et al. 2017, 
entire; Flesch et al. 2017, entire). We considered a more recent 
publication on the potential for small population size to increase 
extinction risk and the types of information needed to model such risk 
(Benson et al. 2016, pp. 1-2, 8). During the development of the pygmy-
owl SSA report, we sought peer and partner review specifically on our 
climate change analysis. The responses we received from climate experts 
were used to update our SSA report and are included in more detail in 
this final rule.
    Additionally, we considered more recent information related to 
updated climate models, downscaled climate predictions, and information 
on drought (Bagne and Finch 2012, entire; Coe et al. 2012, entire; 
Jiang and Yang 2012, entire; Romero-Lankao, et al. 2014, p. 1443; 
Melillo et al. 2014, entire; Cook et al. 2015, p. 6; Wang et al. 2016, 
pp. 6-7; Dewes et al. 2017, p. 17; Easterling et al. 2017, entire; 
Diffenbaugh et al. 2017, entire; Gonzalez et al. 2018, entire; 
Christensen et al. 2018, p. 5409; Breshears et al. 2018, p. 6; Williams 
et al. 2020, p. 317; Bradford et al. 2020, entire; BOR 2021, entire). 
Furthermore, additional IPCC reports have been published since 2011, as 
well as National Climate Assessments, and we have included these in our 
climate analysis related to this final rule and the pygmy-owl SSA 
report (IPCC 2014b, entire; Melillo et al. 2014, entire; USGCRP 2018, 
chapters 23 and 25; IPCC 2022, entire). We also have new information 
indicating that climate extremes may be more important than averages 
(Germain and Lutz 2020, entire) and further evidence that climate has 
become, and is projected to become, more extreme within the range of 
the pygmy-owl (Bagne and Finch 2012, entire; Cook et al. 2015, p. 6; 
Diffenbaugh et al. 2017, entire; Easterling et al. 2017, entire; BOR 
2021, entire). Additionally, since our 2011 12-month finding, a climate 
change study was published predicting a reduction in saguaros in the 
Sonoran Desert (Thomas et al. 2012, p. 43). Saguaros are the key 
nesting substrate for pygmy-owls in the Sonoran Desert.

Overall Status and Needs of Pygmy-Owls

    Subsequent to our 2011 12-month finding, the IUCN published a Red 
List Update for the ferruginous pygmy-owl (Glaucidium brasilianum) and, 
although the status remained the same as the 2009 Red List status 
(Least Concern), the Update acknowledged rangewide declines in the 
ferruginous pygmy-owl (BirdLife International 2016, unpaginated). We 
also reviewed and incorporated the updated Birds of North America 
ferruginous pygmy-owl account (now Birds of the World) (Proudfoot et 
al. 2020, entire). Additionally, new information has been published 
further supporting the importance of woodland vegetation and large, 
unfragmented habitat patches in the Sonoran Desert (Flesch et al. 2015, 
entire).

Additional Sources of Information

    The following includes a list of information sources that were 
included subsequent to the proposed rule: AdaptWest Project 2015, 
unpaginated; AdaptWest Project 2022, unpaginated; Altar Valley 
Watershed Working Group 2022, entire; AGFD 2021b, pers. comm.; AGFD 
2022, unpublished data; ASDM 2022, unpaginated; Arrona-Rivera et al. 
2016, entire; Bhatia et al. 2019, entire; BirdLife International 2016, 
unpaginated; Blackie et al. 2014, entire; Bond 2022, unpaginated; 
Bradford et al. 2020, entire; Breshears et al. 2018, entire; 
Buffelgrass Working Group 2008, entire; BOR 1947, unpaginated; BOR 
2021, entire; Burquez 2022, pers. comm.; Burquez and Martinez-Yrizar 
1997, entire; Christensen et al. 2018, entire; Cobbold et al. 2021, 
entire; Cobbold et al. 2022a, entire; Cobbold et al. 2022b, entire; 
Cook et al. 2001, entire; Deguines et al. 2017, entire; Dewes et al. 
2017, entire; Diffenbaugh et al. 2017, entire; Easterling et al. 2017, 
entire; Enr[iacute]quez et al. 2017, entire; Flesch 2003, entire; 
Flesch 2014, entire; Flesch 2017, entire; Flesch 2018a, entire; Flesch 
2018b, pers. comm., Flesch 2021, entire; Flesch et al. 2010, entire; 
Germain and Lutz 2020, entire; Gonzalez et al. 2018, entire; Gonzales 
2020, unpaginated; Gornish and Howery 2019, entire; Herzog et al. 2020, 
entire; Inciweb 2022, unpaginated; IPCC 2014b, entire; IPCC 2022, 
entire; Johnson et al. 2004, entire; Johnston et al. 2021, entire; 
Keith 2007, entire; Lesli 2016, entire; Marris 2006, entire; Mays 1996, 
entire; Melillo et al. 2014, entire; Meltz and Copeland 2007, entire; 
Mesa-Sierra et al. 2022, entire; Mesta 2020, pers. comm.; Murray-
Tortarolo 2021, entire; NDMC 2022, unpaginated; NIFC 2022, unpaginated; 
INEGI 2021, unpaginated; NWS 2022, unpaginated; Pearce-Higgins et al. 
2015, unpaginated; PCOSC 2021, entire; Pinal County 2019, entire; 
Romero-Lankao et al. 2014, entire; Texas Comptroller 2020, unpaginated; 
TDC 2019, entire; Texas Land Trends 2019, entire; TPWD 2022, 
unpaginated; U.S. Census Bureau 2021b, unpaginated; DHS 2020, 
unpaginated; U.S. NDMC 2022, unpaginated; EPA 2016, unpaginated; 
Service 2022b, unpaginated; USGCRP 2018, entire; USGS 2022, 
unpaginated; EBRC 2021, unpaginated; Valdez et al. 2006, entire; 
Vaughan 2019, pers. comm.; Vermote et al. 2014, unpaginated; Verwys 
2020, pers. comm.; Verwys 2021, pers. comm.; Walker and Pavlakovish-
Kochi 2003, entire; Wang et al. 2016, entire; Wied et al. 2020, entire.

I. Final Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
cactus ferruginous pygmy-owl is presented in the SSA report. We 
summarize this information here.
    The cactus ferruginous pygmy-owl is a diurnal, nonmigratory 
subspecies of ferruginous pygmy-owl and is found from central Arizona 
south to Michoac[aacute]n, Mexico, in the west and from south Texas to 
Tamaulipas and Nuevo Leon, Mexico, in the east. Pygmy-owls eat a 
variety of prey including birds, insects, lizards, and small mammals, 
with the relative importance of prey type varying throughout the year.
    The pygmy-owl is a small bird, approximately 17 centimeters (cm) 
(6.7 inches (in)) long. Generally, male pygmy-owls average 58 grams (g) 
to 66 g (2.0 to 2.3 ounces (oz)) and females average 70 g to 75 g (2.4 
to 2.6 oz). The pygmy-owl is reddish brown overall, with a cream-
colored belly streaked with reddish brown. The crown is lightly 
streaked, and a pair of dark

[[Page 46915]]

brown or black spots outlined in white occurs on the nape, suggesting 
eyes (Oberholser 1974, p. 451). The species lacks obvious ear tufts 
(Santillan et al. 2008, p. 154), and the eyes are yellow. The tail is 
relatively long for an owl and is reddish brown in color, with darker 
brown bars. Males have pale bands between the dark bars on the tail, 
while females have darker reddish bands between the dark bars.
    Cactus ferruginous pygmy-owls are secondary cavity nesters, nesting 
in cavities of trees and columnar cacti, with nesting substrate varying 
throughout its range. Pygmy-owls can breed in their first year and 
typically mate for life, with both sexes breeding annually. Clutch size 
can vary from two to seven eggs with the female incubating the eggs for 
28 days (Johnsgard 1988, p. 162; Proudfoot and Johnson 2000, p. 11). 
Fledglings disperse from their natal sites about 8 weeks after they 
fledge (Flesch and Steidl 2007, p. 36). Pygmy-owls live on average 3 to 
5 years but have been documented to live 7 to 9 years in the wild 
(Proudfoot 2009, pers. comm.) and 10 years in captivity (Abbate 2009, 
pers. comm.).
    Pygmy-owls are found in a variety of vegetation communities, 
including Sonoran desertscrub and semidesert grasslands in Arizona and 
northern Sonora, thornscrub and tropical dry forests in southern Sonora 
south to Michoac[aacute]n, Tamaulipan brushland in northeastern Mexico, 
and live oak forest in Texas. At a finer scale, the pygmy-owl is a 
creature of edges found in semi-open areas of thorny scrub and 
woodlands in association with giant cacti and in scattered patches of 
woodlands in open landscapes, such as tropical dry forests and riparian 
communities along ephemeral, intermittent, and perennial drainages 
(K[ouml]nig et al. 1999, p. 373). It is often found at the edges of 
riparian and xeroriparian drainages and even habitat edges created by 
villages, towns, and cities (Abbate et al. 1999, pp. 14-23; Proudfoot 
and Johnson 2000, p. 5).
    The taxonomy of Glaucidium is complicated and has been the subject 
of much discussion and investigation. Following delisting of the pygmy-
owl in 2006 (71 FR 19452, April 14, 2006), we were petitioned to relist 
the pygmy-owl (CBD and DOW 2007, entire). The petitioners requested a 
revised taxonomic consideration for the pygmy-owl based on Proudfoot et 
al. (2006a, p. 9; 2006b, p. 946) and K[ouml]nig et al. (1999, pp. 160, 
370-373), classifying the northern portion of Glaucidium brasilianum's 
range as an entirely separate species, G. ridgwayi, and recognizing two 
subspecies of G. ridgwayi: G. r. cactorum in western Mexico and Arizona 
and G. r. ridgwayi in eastern Mexico and Texas. Other recent studies 
proposing or supporting the change to G. ridgwayi for the northern 
portion of G. brasilianum's range have been published in the past 20 
years (Navarro-Sig[uuml]enza and Peterson 2004, p. 5; Wink et al. 2008, 
pp. 42-63; Enr[iacute]quez et al. 2017, p. 15).
    As we evaluated the cactus ferruginous pygmy-owl's current status, 
we found that, although there is genetic differentiation at the far 
ends of the pygmy-owl's distribution represented by Arizona and Texas, 
uncertainty continues with regard to how this pattern is represented in 
the southern portion of the range. This latter area represents the 
boundary between the petitioners' two proposed subspecies (cactorum and 
ridgwayi within the proposed reclassification of the species ridgwayi), 
which raises the question of whether there is adequate data to support 
a change in species classification and define the eastern and western 
distributions as separate subspecies as proposed by Proudfoot et al. 
(2006a, entire; 2006b, entire). The Arizona Game and Fish Department 
(AGFD) completed additional pygmy-owl genetic sampling in the southern 
portion of the pygmy-owl's range in Mexico in 2022 (Cobbold et al. 
2022b, entire). This work did not collect samples far enough south into 
southern Mexico and Central America to resolve the proposed taxonomic 
change of Proudfoot et al. (2006a, entire; 2006b, entire), but it did 
confirm that genetic differentiation does occur across the range of 
what is currently classified as the subspecies cactorum, and that this 
pattern of differentiation is the result of isolation by distance 
(Cobbold et al. 2022b, entire). Additionally, this updated analysis and 
additional genetic sampling did seem to answer the question of whether 
the Transvolcanic Belt of Mexico at the southern end of the pygmy-owl's 
range presents a barrier to gene flow across this area.
    Based on additional sampling conducted specifically in the area of 
the Transvolcanic Belt, an area hypothesized to be a potential barrier 
to movement and gene flow, pygmy-owl samples collected north and south 
of, as well as within, the Transvolcanic Belt clustered in a single 
genetically related group (Cobbold et al. (2022b, p. 16). This finding 
suggests a high degree of gene flow between these population groups. 
Consequently, the results suggest that the Mexican Transvolcanic Belt 
does not represent a dispersal barrier to pygmy-owl population groups 
located on either side of the geological feature within the sampled 
areas. Additionally, genetic differentiation followed a pattern of 
isolation by distance, a model under which the strongest differences in 
genetic structure are expected to occur at the extremities of a 
species' or subspecies' range (Cobbold et al. 2022b, p. 15). Between 
the extremities, there is gradual genetic differentiation, rather than 
abrupt changes, across the range. Sudden changes would be more likely 
to represent dispersal barriers and, therefore, boundaries between 
different genetic groupings. Although these datasets show that there 
are genetic differences across the range of the pygmy-owl, they do not 
provide adequate evidence of genetic differentiation along the gradient 
from Arizona to Texas that would warrant the taxonomic changes 
recommended by Proudfoot et al. (2006a, entire, and 2006b, entire). In 
particular, sample sizes in the southern portion of the range remain 
low. Samples in this portion of the range are critical to determining 
if there are indeed two distinct subspecies of pygmy-owl. While future 
work and studies may clarify and resolve these issues, we will continue 
to use the currently accepted distribution of G. brasilianum cactorum 
as described in the 1957 American Ornithologists' Union (now the 
American Ornithological Society) checklist and various other 
publications (Friedmann et al. 1950, p. 145; Oberholser 1974, p. 452; 
Johnsgard 1988, p. 159; Millsap and Johnson 1988, p. 137).

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR part 424 regarding how we add, remove, and reclassify 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019). On the 
same day, the Service also issued final regulations that, for species 
listed as threatened species after September 26, 2019, eliminated the 
Service's general protective regulations automatically applying to 
threatened species the prohibitions that section 9 of the Act

[[Page 46916]]

applies to endangered species (84 FR 44753; August 27, 2019).
    The regulations that are in effect and therefore applicable to this 
final rule are 50 CFR part 424, as amended by (a) revisions that we 
issued jointly with the National Marine Fisheries Service in 2019 
regarding both the listing, delisting, and reclassification of 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019); and 
(b) revisions that we issued in 2019 eliminating for species listed as 
threatened species are September 26, 2019, the Service's general 
protective regulations that had automatically applied to threatened 
species the prohibitions that section 9 of the Act applies to 
endangered species (84 FR 44753; August 27, 2019).
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the subspecies, including an assessment of the potential 
threats to the subspecies. The SSA report does not represent our 
decision on whether the subspecies should be listed as an endangered or 
threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies.
    To assess cactus ferruginous pygmy-owl viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the subspecies to withstand environmental 
and demographic stochasticity (for example, wet or dry, warm or cold 
years), redundancy is the ability of the subspecies to withstand 
catastrophic events (for example, droughts, large pollution events), 
and representation is the ability of the subspecies to adapt over time 
to both near-term and long-term changes in its physical and biological 
environment (for example, climate conditions, pathogens). In general, 
species viability will increase with increases in resiliency, 
redundancy, and representation (Smith et al. 2018, p. 306). Using these 
principles, we identified the subspecies' ecological requirements for 
survival and reproduction at the individual, population, and subspecies 
levels, and described the beneficial and risk factors influencing the 
species' viability.
    In the context of the Act, resiliency, redundancy, and 
representation are influenced by the five listing factors described in 
the Act. Conversely, the measures of resiliency, redundancy, and 
representation can indicate the extent to which any or all of the five 
listing factors are influencing the viability and status of a species 
in the context of the Act. This relationship between resiliency, 
redundancy, and representation and the five listing factors is 
described in more detail in the Threats, Current Condition, Future 
Scenarios, and Determination of Cactus Ferruginous Pygmy-owl Status 
sections of this final rule.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the

[[Page 46917]]

historical and current condition of the species' demographics and 
habitat characteristics, including an explanation of how the species 
arrived at its current condition. The final stage of the SSA involved 
making predictions about the species' responses to positive and 
negative environmental and anthropogenic influences. Throughout all of 
these stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report can be found at Docket No. FWS-R2-
ES-2021-0098 at https://www.regulations.gov.

Summary of Biological Status and Threats

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

Threats

    We reviewed the potential risk factors, and their applicable 
listing factor, that could be affecting the resiliency, redundancy, and 
representation of the pygmy-owl now and in the future including: 
climate change and climate condition (Factor E), habitat loss and 
fragmentation (Factor A), human activities and disturbance (Factors B 
and E), waived or ineffective regulatory mechanisms (Factor D), human-
caused mortality (Factors B and E), disease and predation (Factor C), 
and small population size (Factor E). In this final rule, we will 
discuss only those factors in detail that could meaningfully impact the 
status of the subspecies. Those risks that are not known to have 
effects on pygmy-owl populations, such as disease, are not discussed 
here but are evaluated in the SSA report. The primary risk factors 
affecting the current and future status of the pygmy-owl are: (1) 
Habitat loss and fragmentation (Factor A), and (2) climate change and 
climate conditions (Factor E). We acknowledge, however, that all of the 
threats discussed in this final rule and the SSA report can exacerbate 
or contribute to these two primary threats and that it is important to 
consider all of the known threats to pygmy-owl populations. For a 
detailed description of the threats analysis, please refer to the SSA 
report (Service 2022a, chapter 7).

Habitat Loss and Fragmentation

    Pygmy-owls require habitat elements, such as mature woodlands, that 
include appropriate cavities for nest sites, adequate structural 
diversity and cover, and a diverse prey base. Urbanization, invasive 
species, and agricultural or forest production are all causing a 
reduction in the extent of habitat and an increase in habitat 
fragmentation throughout the geographic range of the subspecies. In 
response to a comment we received during the public comment period and 
prior to finalizing this rule, we completed some additional analysis on 
the effects of certain land uses in Texas and Arizona over the past 
decade (2010-2020) on pygmy-owl habitat. The commenter provided results 
of an analysis they did on changes in land cover within the pygmy-owl 
analysis areas during the time period of 2010-2015 and suggested that 
the impacts to pygmy-owl habitat were not as great as we presented in 
the proposed rule and SSA report. Because it is important to consider 
the scope, scale, and the factors included in different sources of 
data, we conducted additional analysis using data sources that provided 
the same type of data that the commenter used in their analysis. This 
allowed us to compare the results of additional sources of data with 
the results presented by the commenter. This additional analysis does 
not change the outcome of our listing decision, but it does provide 
additional support for our finding that areas of important pygmy-owl 
habitat have been lost or modified and habitat fragmentation has 
continued, at least in Texas and Arizona, during this time period. This 
further analysis can be found in appendix 6 of the SSA report (Service 
2022a, appendix 6).
Urbanization
    Urbanization causes permanent impacts on the landscape that 
potentially result in the loss and alteration of pygmy-owl habitat. 
Residential, commercial, and infrastructure development replace and 
fragment areas of native vegetation resulting in the loss of available 
pygmy-owl habitat and habitat connectivity needed to support pygmy-owl 
dispersal and demographic support (exchange of individuals and rescue 
effect) of population groups.
    Urbanization can also have detrimental effects on wildlife habitat 
by increasing the channelization or disruption of riverine corridors, 
the proliferation of exotic species, and the fragmentation of remaining 
patches of natural vegetation into smaller and smaller pieces that are 
unable to support viable populations of native plants or animals (Ewing 
et al. 2005, pp. 1-2; Nabhan and Holdsworth 1998, p. 2). Human-related 
mortality (e.g., shooting, collisions, and predation by pets) also 
increases as urbanization increases (Banks 1979, pp. 1-2; Churcher and 
Lawton 1987, p. 439). Development of roadways and their contribution to 
habitat loss and fragmentation is a particularly widespread impact of 
urbanization (Nickens 1991, p. 1). Data from Arizona and Mexico 
indicate that roadways and other open areas lacking cover affect pygmy-
owl dispersal (Abbate et al. 1999, p. 54; Flesch and Steidl 2007, pp. 
6-7; Flesch 2017, p. 5; Flesch et al. 2017, entire; Flesch 2021, pp. 
12-14). Nest success and juvenile survival were also lower at pygmy-owl 
nest sites closer to large roadways, suggesting that habitat quality 
may be reduced in those areas (Flesch and Steidl 2007, pp. 6-7; Flesch 
2017, p. 5).
    From 2010 to 2020, various land uses, including urbanization, have 
resulted in the loss of pygmy-owl habitat in Arizona and Texas (Service 
2022a, appendix 6), and this loss and fragmentation of pygmy-owl 
habitat is likely to continue. While there is not a direct correlation 
between acres of pygmy-owl habitat lost and human population growth, it 
is reasonable to conclude that, as human population grows, the amount 
of native habitat lost or fragmented will increase. From 2010 to 2020, 
population growth rates increased in all Arizona counties where the 
pygmy-owl has recently occurred: Pima (9.3 percent); Pinal (25.7 
percent); and Santa Cruz (13 percent) (OEO 2018, unpaginated). Many 
cities and towns within the historical distribution of the pygmy-owl in 
Arizona experienced substantial growth between April 2010 and July 
2019: Casa Grande (20.7 percent); City of Eloy (17.8 percent); City of 
Florence (7.7 percent); Town of Marana (41.9 percent); Town of Oro 
Valley (12.2 percent); and the Town of

[[Page 46918]]

Sahuarita (20.9 percent) (U.S. Census Bureau 2021a, unpaginated). Urban 
expansion and human population growth trends in Arizona are expected to 
continue into the future. The Maricopa-Pima-Pinal Counties area of 
Arizona is expected to grow by as much as 132 percent between 2005 and 
2050, creating rural-urban edge effects across thousands of acres of 
pygmy-owl habitat (AECOM 2011, p. 13). Additionally, a wide area from 
the international border in Nogales, through Tucson, Phoenix, and north 
into Yavapai County (called the Sun Corridor ``Megapolitan'' Area) is 
projected to have 11,297,000 people by 2050, a 132 percent increase 
from 2005 (AECOM 2011, p. 13). If build-out occurs as expected, it will 
encompass a substantial portion of the current and historical 
distribution of the pygmy-owl in Arizona.
    In Texas, the pygmy-owl occurred in relatively high abundance until 
approximately 90 percent of the mesquite-ebony woodlands of the Rio 
Grande delta were cleared in 1910-1950 (Oberholser 1974, p. 452). 
Currently, most of the pygmy-owl habitat occurs on private ranch lands, 
and, therefore, the threat of habitat loss and fragmentation of the 
remaining pygmy-owl habitat due to urbanization may be reduced in some 
areas of Texas. However, urbanization and agriculture along the United 
States-Mexico border are likely to continue to isolate the Texas 
population of pygmy-owls by restricting movements between Texas and 
northeastern Mexico (TDC 2019, entire; Texas Land Trends 2019, entire; 
USGS 2022, unpaginated).
    The United States-Mexico border region has a distinct demographic 
pattern of permanent and temporary development related to warehouses, 
exports, and other border-related activities, and patterns of 
population growth in this area of northern Mexico has accelerated 
relative to other Mexican States (Pineiro 2001, pp. 1-2). The Sonoran 
border population has been increasing faster than that State's average 
and faster than Arizona's border population; between 1990 and 2000, the 
population in the Sonoran border municipios increased by 33.4 percent, 
compared to Sonora's average (21.6 percent) and the average increase of 
Arizona's border counties (27.8 percent). Growth of urban areas in 
Texas is expected to result in a decrease of rural land uses, further 
fragmenting habitats in this region (Texas Land Trends 2019, entire). 
Urbanization has increased habitat conversion and fragmentation, which, 
along with immigration, population growth, and resource consumption, 
were ranked as the highest threats to the Sonoran Desert Ecoregion 
(Nabhan and Holdsworth 1998, p. 1). This pattern focuses development, 
and potential barriers or impediments to pygmy-owl movements, in a 
region that is important for demographic support (immigration events 
and gene flow) of pygmy-owl population groups, including movements such 
as dispersal.
    Significant human population expansion and urbanization in the 
Sierra Madre foothill corridor may represent a long-term risk to pygmy-
owls in northeastern Mexico. From 2010 to 2015 the population in 
Tamaulipas increased by 8 percent to 3,527,735, and the population in 
Nuevo Le[oacute]n increased by 24 percent to 5,784,442 (DataMexico 
2021, unpaginated). Such increasing urbanization results in the 
permanent removal of pygmy-owl habitat reducing habitat availability 
and, more significantly, increases habitat fragmentation affecting the 
opportunity for pygmy-owl movements within northeastern Mexico and 
between Mexico and Texas. Habitat removal in northeastern Mexico is 
widespread and nearly complete in northern Tamaulipas (Hunter 1988, p. 
8). Demographic support (rescue effect) of pygmy-owl population groups 
is threatened by ongoing loss and fragmentation of habitat in this 
area. Urbanization has the potential to permanently alter the last 
major landscape linkage between the pygmy-owl population in Texas and 
those in northeastern Mexico (Tewes 1993, pp. 28-29).
    Human population growth in Sinaloa, Nayarit, Colima, and Jalisco, 
Mexico, is ongoing. From 2010 to 2015, the population in Sinaloa grew 
at a rate of 9.3 percent, Nayarit grew at a rate of 13.9 percent, 
Jalisco grew at a rate of 13.6 percent, and Colima grew at a rate of 
12.4 percent (DataMexico 2021, unpaginated). Growth rates in these 
areas will likely have some concurrent spread of urbanization despite 
the fact that most of the growth is taking place in the large cities 
rather than in the rural areas (Brinkhoff 2016, unpaginated). 
Additionally, these Mexican States have other threats to pygmy-owl 
habitat occurring, such as agricultural development and deforestation, 
that, in combination with habitat lost to urbanization, represent 
threats to the continued viability of the pygmy-owl in this area 
(Blackie et al. 2014, p. 1; Burquez 2022, pers. comm.; Mesa-Sierra et 
al. 2022, entire).
Invasive Species
    The invasion of nonnative vegetation, particularly nonnative 
grasses, has altered the natural fire regime over the Sonoran Desert 
ecoregion of the pygmy-owl range, in particular, but invasive species 
impact native habitats in other pygmy-owl analysis units as well (Esque 
and Schwalbe 2002, p. 165; Lyons et al. 2013, p. 71; Wied et al. 2020, 
entire). In areas composed entirely of native species, ground 
vegetation density is mediated by barren spaces that do not allow fire 
to carry across the landscape. However, in areas where nonnative 
species have become established, the fine fuel load is continuous, and 
fire is capable of spreading quickly and efficiently (Esque and 
Schwalbe 2002, p. 175; Wied et al. 2020, p. 48). As a result, fire has 
become a significant threat to the native vegetation of the Sonoran 
Desert. Sonoran Desert vegetation is not fire adapted, and many such 
vegetative communities in Arizona are no longer in a natural or 
historical state. Instead, these vegetative communities and their fire 
dynamics have been inalterably changed by nonnative grasses and forbs, 
and in some areas by woody shrubs and trees (Gornish and Howery 2019, 
entire). Nonnative plant communities are problematic not only for 
imperiled species such as the pygmy-owl, but also for land managers 
whose goals include forest stewardship and wildfire mitigation for 
public safety and natural resource protection. The Arizona Wildfire 
Risk Assessment Portal estimates that a substantial portion of the 
pygmy-owl range in Arizona (2,433,763 ha; 6,013,959 acres) has a 
moderate to high risk of experiencing adverse effects of wildfire in 
the foreseeable future. As discussed elsewhere in this final rule and 
in our SSA report, such adverse effects include the destruction of 
roosting and nesting substrate provided by mature trees and columnar 
cacti. Using conservative estimates from post-fire monitoring performed 
by the Tonto National Forest, the Arizona Department of Forestry and 
Fire Management (ADFFM) concluded that over 30 million saguaros could 
be lost and unlikely to regenerate if a large portion of the area under 
risk were to burn (ADFFM 2022, pers. comm.).
    Nonnative annual plants prevalent within the Sonoran range of the 
pygmy-owl include Bromus rubens and B. tectorum (brome grasses), 
Schismus spp. (Mediterranean grasses), and Sahara mustard (Brassica 
tournefortii) (Esque and Schwalbe 2002, p. 165; ASDM 2021, 
unpaginated). However, the nonnative species that is currently one of 
the greatest threats to vegetation communities in Arizona and Texas in 
the United States and northeastern and northwestern Mexico is the 
perennial Cenchrus ciliaris (buffelgrass), which is

[[Page 46919]]

prevalent and increasing throughout much of the range of the pygmy-owl 
(Burquez and Quintana 1994, p. 23; Van Devender and Dimmit 2006, p. 5; 
Lyons et al. 2013, pp. 68-69; Wied et al. 2020, pp. 47-48).
    Buffelgrass is not only fire-tolerant (unlike native Sonoran Desert 
plant species) but is actually fire-promoting (Halverson and Guertin 
2003, p. 13; Lyons et al. 2013, p. 71). Invasion sets in motion a 
grass-fire cycle where nonnative grass provides the fuel necessary to 
initiate and promote fire. Nonnative grasses recover more quickly than 
native grass, tree, and cacti species and cause a further 
susceptibility to fire (D'Antonio and Vitousek 1992, p. 73; Schmid and 
Rogers 1988, p. 442). While a single fire in an area may or may not 
produce long-term reductions in plant cover or biomass, repeated 
wildfires in a given area, due to the establishment of nonnative 
grasses, are capable of ecosystem type-conversion from native 
desertscrub to nonnative annual grassland (Wied et al. 2020, p. 48). 
These repeated fires may render the area unsuitable for pygmy-owls and 
other native wildlife due to the loss of trees and columnar cacti and 
reduced diversity of cover and prey species (Brooks and Esque 2002, p. 
336; Wied et al. 2020, p. 48).
    The distribution of buffelgrass has been supported and promoted by 
governments on both sides of the United States-Mexico border as a 
resource to increase range productivity and forage production (Lyons et 
al. 2013, p. 65). A 2006 publication estimates that 143,504 ha (3.5 
million ac) have been converted to buffelgrass in Sonora, and that 
between 1990 and 2000, there was an 82 percent increase in buffelgrass 
coverage (Franklin et al. 2006, pp. 62, 66, 67). Following 
establishment, buffelgrass fuels fires that destroy Sonoran 
desertscrub, thornscrub, and, to a lesser extent, tropical dry forest; 
the disturbed areas are quickly converted to open savannas composed 
entirely of buffelgrass, which removes pygmy-owl nest substrates and 
generally renders areas unsuitable for future occupancy by pygmy-owls. 
Buffelgrass is now fully naturalized in most of Sonora, southern 
Arizona, and some areas in central and southern Baja California 
(Burquez-Montijo et al. 2002, p. 131) and now commonly spreads without 
human cultivation (Burquez et al. 1998, p. 26; Perramond 2000, p. 131; 
Arriaga et al. 2004, pp. 1509-1511).
    Because of the significance of the issue of buffelgrass invasion in 
Arizona, the Governor of Arizona formed the Arizona Invasive Species 
Advisory Council in 2005, and the Southern Arizona Buffelgrass Working 
Group developed the Southern Arizona Buffelgrass Strategic Plan in 2008 
(Buffelgrass Working Group 2008, entire) in order to coordinate the 
control of buffelgrass. Because of its negative impacts to native 
ecosystems, buffelgrass was declared a noxious weed by the State of 
Arizona in March 2005. This buffelgrass working group is now led by the 
Arizona-Sonora Desert Museum (ASDM). The ASDM is currently mapping the 
extent, and control, of buffelgrass in southern Arizona in an effort to 
inform and direct management activities (ASDM 2022, unpaginated). These 
efforts are helping to manage buffelgrass invasion in southern Arizona.
    Similar issues occur in Texas. Buffelgrass is now one of the most 
abundant nonnative grasses in South Texas, and a prevalent invasive 
grass within the range of the pygmy-owl. During the 1950s, Federal and 
State land management agencies promoted buffelgrass as a forage grass 
in South Texas (Smith 2010, p. 113; Lyons et al. 2013, p. 69). 
Buffelgrass is very well adapted to the hot, semi-arid climate of South 
Texas due to its drought resistance and ability to aggressively 
establish in heavily grazed landscapes (Smith 2010, p. 113; Wied et al. 
2020, p. 48). Despite increasing awareness of the ecological damage 
caused by nonnative grasses, buffelgrass is still planted in areas 
affected by drought and overgrazing to stabilize soils and to increase 
rangeland productivity. Prescribed burning used for brush control 
typically promotes buffelgrass forage production in South Texas 
(Hamilton and Scifres 1982, p. 11). Buffelgrass often creates 
homogeneous monocultures by out-competing native plants for essential 
resources (Lyons et al. 2013, p. 8). Furthermore, buffelgrass produces 
phytotoxins in the soil that inhibit the growth of neighboring native 
plants (Vo 2013, unpaginated). With regard to pygmy-owl habitat, the 
loss of trees and canopy cover and the creation of dense ground cover 
resulting from buffelgrass conversion reduces nest cavity availability, 
cover for predator avoidance and thermoregulation, and prey 
availability. Overall, buffelgrass is the dominant herbaceous cover on 
10 million ha (24,710,538 acres) in southern Texas and northeastern 
Mexico (Wied et al. 2020, p. 47).
    The impacts of buffelgrass establishment and invasion are 
substantial for the pygmy-owl in the United States and Mexico because 
conversion results in the loss of important habitat features, 
particularly columnar cacti and trees that provide nest sites. 
Buffelgrass also reduces habitat diversity by creating monocultures of 
buffelgrass and out-competing native vegetation species (Lyons et al. 
2013, pp. 66-67; Wied et al. 2020, p. 48), which decreases prey 
availability for the pygmy-owl by decreasing the habitat compositional 
and structural diversity. Buffelgrass invasion and the subsequent fires 
eliminate most columnar cacti, trees, and shrubs of the desert 
(Burquez-Montijo et al. 2002, p. 138). This elimination of trees, 
shrubs, and columnar cacti from these areas is a potential threat to 
the survival of the pygmy-owl in the northern part of its range, as 
these vegetation components are necessary for roosting, nesting, 
protection from predators, and thermal regulation. Invasion and 
conversion to buffelgrass also negatively affect the diversity and 
availability of prey species in these areas (Franklin et al. 2006, p. 
69; Avila-Jimenez 2004, p. 18; Burquez-Montijo et al. 2002, pp. 130, 
135).
    Buffelgrass is adapted to dry, arid conditions and does not grow in 
areas with high rates of precipitation or high humidity, above 
elevations of 1,265 m (4,150 ft), or in areas with freezing 
temperatures. Areas that support pygmy-owls south of Sonora and 
northern Sinaloa typically are wetter and more humid, and conditions 
are not as favorable for the invasion of buffelgrass. Surveys completed 
in Sonora and Sinaloa in 2006 noted buffelgrass was present in Sonora 
and northern Sinaloa, but the more southerly locations were noted as 
sparse or moderate (Van Devender and Dimmitt 2006, p. 7). However, 
because buffelgrass was first introduced to Mexico in Tamaulipas and 
Neuvo Leon, and then subsequently to Sonora and Sinaloa (Lyons et al. 
2013, pp. 68-69), buffelgrass and its associated impacts are found in 
all five of the pygmy-owl analysis units used in our analysis for this 
final rule.
Agricultural Production and Wood Harvesting
    Agricultural development and wood harvesting can result in 
substantial impacts to the availability and connectivity of pygmy-owl 
habitat. Conversion of native vegetation communities to agricultural 
fields or pastures for grazing has occurred within historical pygmy-owl 
habitat in both the United States and Mexico, and not only removes 
existing pygmy-owl habitat elements, but also can affect the long-term 
ability of these areas to return to native vegetation communities once 
agricultural activities cease. Wood harvesting has a direct effect on 
the

[[Page 46920]]

amount of available cover and nest sites for pygmy-owls and is often 
associated with agricultural development. Wood harvesting also occurs 
to supply firewood and charcoal, and to provide material for cultural 
and decorative wood carvings.
    In Arizona, although new agricultural development is limited, the 
effects to historical habitat are still evident. Many areas that 
historically supported meso- and xeri-riparian habitat have been 
converted to agricultural lands, and associated groundwater pumping has 
affected the hydrology of these valleys (Jackson and Comus 1999, pp. 
233, 249). These riparian areas are important pygmy-owl habitat, 
especially within drier upland vegetation communities like Sonoran 
desertscrub and semi-desert grasslands.
    Habitat fragmentation as a result of agricultural development has 
also occurred within Texas. Brush-clearing, pesticide use, and 
irrigation practices associated with agriculture have had detrimental 
effects on the Lower Rio Grande Valley (Jahrsdoerfer and Leslie 1988, 
p. 1). From the 1920s until the early 1970s, over 90 percent of pygmy-
owl habitat in the Lower Rio Grande Valley of Texas was cleared for 
agricultural and urban expansion (Oberholser 1974, p. 452). The Norias 
Division of the King Ranch in southern Texas has been at the center of 
most research on pygmy-owls in Texas (Mays 1996, entire; Proudfoot 
1996, entire), but has been isolated by agricultural expansion, which 
has restricted pygmy-owl dispersal (Oberholser 1974). This expansion 
has resulted in loss of pygmy-owl habitat connectivity between pygmy-
owl population groups in Texas and in Mexico. From 2010 to 2020, 
various land uses, including agricultural development and wood 
harvesting, have resulted in some loss of pygmy-owl habitat in Arizona 
and Texas (Service 2022a, Appendix 6), and this loss and fragmentation 
of pygmy-owl habitat is likely to continue based on population growth 
projections (HHS 2017, unpaginated; OEO 2018, unpaginated; TDC 2019, 
entire; Pinal County 2019, p. 126; Gonzales 2020, unpaginated).
    Historically, agriculture in Sonora, Mexico, was restricted to 
small areas with shallow water tables, but it had, nonetheless, 
seriously affected riparian areas by the end of the nineteenth century. 
For example, in the Rio Mayo and Rio Yaqui coastal plains, nearly 1 
million ha (2.5 million ac) of mesquite, cottonwood, and willow 
riparian forests and coastal thornscrub disappeared after dams upriver 
started to operate (Burquez and Martinez-Yrizar 2007, p. 543). Other 
Mexican States within the range of the pygmy-owl show similar potential 
for habitat loss. For example, in Tamaulipas, areas under irrigation 
increased from 174,400 to 494,472 ha (431,000 to 1.22 million ac) 
between 1998 and 2004, with an area of 668,872 ha (1.65 million ac) 
equipped for irrigation. However, agricultural development in the 
States of Colima, Jalisco, Nayarit, and Nuevo Leon had decreases in the 
amount of irrigated lands over the same period (FAO 2007, unpaginated).
    There is some evidence that historical agricultural practices by 
indigenous peoples and early settlers provided and potentially enhanced 
available pygmy-owl habitat in Arizona, primarily through the 
development of irrigation canals that promoted the presence of woody 
vegetation (BOR 1947, unpaginated; Johnson et al. 2004, p. 139). 
However, more recent agricultural developments typically remove areas 
of native vegetation resulting in pygmy-owl habitat loss and 
fragmentation over relatively large areas, causing reductions in ground 
and surface waters impacting riparian systems important to the pygmy-
owl and pygmy-owl prey species, and resulting in habitat fragmentation 
and loss of habitat connectivity for the pygmy-owl. While the loss and 
fragmentation of habitat is more of an historical impact in Arizona and 
Texas, some agricultural development continues in these areas and some 
historical impacts are still evident. In Mexico, agricultural 
development is an ongoing threat to pygmy-owl habitat (Burquez 2022, 
pers. comm.).
    Wood harvesting is also a potential threat to pygmy-owl habitat. 
Ironwood (Olneya tesota) and mesquite (Prosopis spp.) are harvested 
throughout the Sonoran Desert for use as charcoal, fuelwood, and 
carving (Burquez and Martinez Yrizar 2007, p. 545). For instance, by 
1994, 202,000 ha (500,000 ac) of mesquite had been cleared in northern 
Mexico to meet the growing demand for mesquite charcoal (Haller 1994, 
p. 1). Flesch (2021, pp. 11, 13) noted that pygmy-owl habitat impacts 
from charcoal operations are still occurring in Sonora. Unfortunately, 
woodcutters and charcoal makers used large, mature mesquite and 
ironwood trees growing in riparian areas (Taylor 2006, p. 12), which is 
the tree class that is of most value as pygmy-owl habitat. Loss of 
leguminous trees results in long-term effects to the soil as these 
trees add organic matter, fix nitrogen, and add sulfur and soluble 
salts, affecting overall habitat quality and quantity (Rodriguez-Franco 
and Aguirre 1996, p. 6-47). Ironwood and mesquite trees are important 
nurse plant species for saguaros, the primary nesting substrate for 
pygmy-owls in the northern portion of their range (Burquez and Quintana 
1994, p. 11). Declining tree populations in the Sonoran Desert as a 
result of commercial uses and land conversion threatens other plant 
species and may alter the structure and composition of the vertebrate 
and invertebrate communities as well (Bestelmeyer and Schooley 1999, p. 
644). This has implications for pygmy-owl prey availability because 
pygmy-owls rely on a seasonal diversity of vertebrate and invertebrate 
prey species; loss of tree structure and diversity reduces prey 
diversity and availability.
    Once common in areas of the Rio Grande delta, significant habitat 
loss and fragmentation due to woodcutting have now caused the pygmy-owl 
to be a rare occurrence in this area of Texas. Oberholser (1974, p. 
452) concluded that agricultural expansion and subsequent loss of 
native woodland and thornscrub habitat, begun in the 1920s, preceded 
the rapid demise of pygmy-owl populations in the Lower Rio Grande 
Valley of southern Texas. Because much of the suitable pygmy-owl 
habitat in Texas occurs on private ranches, habitat areas are subject 
to potential impacts that are associated with ongoing ranch activities 
such as grazing, herd management, fencing, pasture improvements, 
construction of cattle pens and waters, road construction, and 
development of hunting facilities. Brush-clearing, in particular, has 
been identified as a potential factor in present and future declines in 
the pygmy-owl population in Texas (Oberholser 1974, p. 452). 
Conversely, ranch practices that enhance or increase pygmy-owl habitat 
to support ecotourism can contribute to conservation of the pygmy-owl 
in Texas (Wauer et al. 1993, p. 1076).
    Habitat fragmentation in northeastern Mexico is extensive, with 
only about two percent of the ecoregion remaining intact, and no 
habitat blocks larger than 250 square km (96.5 square mi), and no 
significant protected areas (Cook et al. 2001, p. 4). Fire is often 
used to clear woodlands for agriculture in this area of Mexico, and 
many of these fires are not adequately controlled. There may be fire-
extensive related effects to native plant communities (Cook et al. 
2001, p. 4); however, there is no specific information available for 
how much area may be affected by this activity.
    Areas of dry subtropical forests, important habitat for pygmy-owls 
in southwestern Mexico, have been used by humans through time for 
settlement

[[Page 46921]]

and various other activities (Trejo and Dirzo 2000, p. 133; Blackie et 
al. 2014, pp. 1-2). The long-term impact of this settlement has 
converted these dry subtropical forests into shrublands and savannas 
lacking large trees, columnar cacti, and cover and prey diversity that 
are important pygmy-owl habitat elements. In Mexico, tropical dry 
forest is the major type of tropical vegetation in the country, 
covering over 60 percent of the total area of tropical vegetation. 
About 8 percent (approximately 160,000 square km (61,776 square mi)) of 
this forest remained intact by the late 1970s, and an assessment made 
at the beginning of the present decade suggested that 30 percent of 
these tropical forests have been altered and converted to agricultural 
lands and cattle grasslands (Trejo and Drizo 2000, p. 134; Mesa-Sierra 
et al. 2022, unpaginated). Tropical dry forests, such as Selva baja 
caducifolia and Bosque tropical caducifolio, are the most important 
reservoir of biodiversity along the Pacific coast of Mexico (Burquez 
2022, pers. comm.). Extensive reductions in these habitats have 
occurred in the past. For instance, extensive irrigation systems have 
been developed along the coasts of Sinaloa and Nayarit, and in more 
localized areas in Jalisco, Michoac[aacute]n, and Guerrero. These and 
other land-transformation pressures affecting tropical dry forests have 
not diminished with time (Burquez 2022, pers. comm.).
Summary of Habitat Loss and Fragmentation
    In summary, pygmy-owls require habitat elements such as mature 
woodlands that include appropriate cavities for nest sites, adequate 
structural diversity and cover, and a diverse prey base. These habitat 
elements need to be available across the geographic range of the pygmy-
owl and spatially arranged to allow connectivity between habitat 
patches. Pygmy-owl habitat loss and fragmentation have affected, and 
are continuing to affect, pygmy-owl viability throughout its range.
    These threats vary in scope and intensity throughout the pygmy-
owl's geographic range, and specific threats are a more significant 
issue in certain parts of the range than in others. For example, in 
Arizona and Northern Sonora, pygmy-owl habitat loss and fragmentation 
resulting from urbanization, changing fire regimes due to the invasion 
of buffelgrass, and agricultural development and woodcutting are 
significant threats that have negatively affected pygmy-owl habitat. In 
Texas, historical loss of habitat has reduced the pygmy-owl range, and, 
in Texas and other areas of the pygmy-owl's range, these past impacts 
continue to affect the current extent of available pygmy-owl habitat, 
because of the extended time it takes for these lands to recover. 
Therefore, even if habitat destruction ceases, the negative effects of 
past land use are expected to continue in many of these areas into the 
future, and this will be a cumulative impact with current impacts from 
invasive species, agricultural development, and other land use 
practices (Texas Land Trends 2019, entire; Wied et al. 2020, entire; 
DHS 2020, unpaginated; USGS 2022, unpaginated).
    One of the most pressing issues for the U.S.-Mexico border is the 
impact of illegal human and vehicular traffic through these unique and 
environmentally sensitive areas. Many of these locations now bear the 
scars of wildcat trails, abandoned refuse, and trampled vegetation 
(Marris 2006, p. 339; Walker and Pavlakovich-Kochi 2003, p. 15). Trails 
and roadways remove pygmy-owl habitat features; noise and disturbance 
from people and vehicles disrupt important behaviors; and there is an 
increased risk of fire in important habitats resulting from cooking and 
warming fires, as well as signal fires used by cross-border immigrants 
and smugglers.
    For the remainder of the pygmy-owl's range and habitat in Mexico 
(northeastern Mexico and south of Sonora), data available for our 
analysis were limited. Available data that we considered regarding 
population growth and land use patterns indicates that human population 
growth throughout Mexico is occurring (INEGI 2021, unpaginated; CONAPO 
2014, p. 25; DataMexico 2021, unpaginated). Historical loss of pygmy-
owl habitat in northeastern Mexico has occurred, and recent increases 
in agricultural development are occurring in Tamaulipas (FAO 2007, 
unpaginated). Tropical dry forests, one of the most biologically 
significant vegetation communities in Mexico and important pygmy-owl 
habitat, has been significantly reduced and is continuing to be lost 
(Burquez 2022 pers. comm.; Mesa-Sierra et al. 2022, unpaginated).
    This information indicates that the impacts to pygmy-owl habitat 
discussed herein may be having different levels of effects on the 
populations of pygmy-owls throughout their range and, while not every 
activity is occurring in every analysis unit, every analysis unit is 
experiencing habitat loss and fragmentation (Service 2022a, appendix 
5). Enr[iacute]quez and Vazquez-Perez (2017, p. 546) indicate that, 
during the last 50 years, Mexico has seen drastic changes in land uses 
due to rapid urbanization and industrialization, which has been poorly 
planned. The result has been impacts to the natural environment, 
including the degradation and loss of biological diversity in Mexico. 
There has been limited work in Mexico, however, to understand what the 
direct impacts of these threats are on owl population losses and 
changes in distribution and abundance of subspecies in the long term 
(Enr[iacute]quez and Vazquez-Perez 2017, p. 546).
    Habitat loss and fragmentation will impact both the eastern and 
western populations of pygmy-owls through reduced size and number of 
suitable blocks of nesting habitat and nest cavity availability, loss 
and reduction of habitat connectivity and the ability of pygmy-owls to 
move across the landscape to provide demographic and genetic rescue, 
loss and reduction of prey availability, and the increase of potential 
threats related to predation, pesticides, and human disturbance.

Climate Change and Climate Conditions

    Enough time has passed since the early predictions of impacts of 
climate change that we have seen evidence of those predicted impacts on 
vegetation communities across the range of the pygmy-owl (Vermote et 
al. 2014, unpaginated; Romero-Lankao, et al. 2014, p. 1459; Williams et 
al. 2020, p. 317; IPCC 2022, entire). New climate models and 
projections, updated Normalized Difference Vegetation Index (NDVI) 
datasets, and an assessment examining pygmy-owl's vulnerability to 
climate change have been completed since our analysis in the 2011 
pygmy-owl 12-month finding (Bagne and Finch 2012, pp. 67-73; Coe et al. 
2012, entire; Jiang and Yang 2012, entire; IPCC 2014b, entire; Romero-
Lankao, et al. 2014, entire; Melillo et al. 2014, entire; Vermote et 
al. 2014, unpaginated; AdaptWest Project 2015, unpaginated; Cook et al. 
2015, entire; Pascale et al. 2017, p. 806; USGCRP 2018, chapters 23 and 
25; Gonzalez et al. 2018, entire; Christensen et al. 2018, p. 5409; BOR 
2021, entire; AdaptWest Project 2022, unpaginated; IPCC 2022, entire). 
These projections continue to predict impacts at the same or increasing 
levels upon the landscape in areas where the pygmy-owl occurs.
    In the SSA report, the proposed rule, and this final listing rule, 
we used newer modeling related to climate that was not used in our 2011 
12-month finding, and this change reduced the subjectivity of our 
approach to evaluate the effects to pygmy-owl habitat effects

[[Page 46922]]

(Vermote et al. 2014, unpaginated; AdaptWest Project 2015, unpaginated; 
Wang et al. 2016, pp. 6-7; Dewes et al. 2017, p. 17; Diffenbaugh et al. 
2017, entire; AdaptWest Project 2022, unpaginated; Service 2022a, 
chapter 6, appendices 2 and 3). Furthermore, additional IPCC reports 
have been published since 2011, as well as National Climate 
Assessments, and we have included the appropriate information found in 
these sources in our climate analysis to ensure that we considered the 
most current and best information available. These sources represent 
the current understanding of the evidence and effects of climate change 
(IPCC 2014b, entire; Melillo et al. 2014, entire; USGCRP 2018, chapters 
23 and 25; IPCC 2022, entire).
    Climate change projections within the geographic range of the 
pygmy-owl show that increasing temperatures, decreasing precipitation, 
and increasing intensity of weather events are likely (Karmalkar et al. 
2011, entire; Bagne and Finch 2012, entire; Coe et al. 2012, entire; 
and Jiang and Yang 2012, entire; BOR 2021; p. 23). Climate influences 
pygmy-owl habitat conditions and availability through the loss of 
vegetation cover, reduced prey availability, increased predation, 
reduced nest site availability, and vegetation community change. The 
majority of the current range of the pygmy-owl occurs in tropical or 
subtropical vegetation communities, which may be reduced in coverage if 
climate change results in hotter, more arid conditions. Extended 
drought has and continues to affect vegetation communities used by the 
pygmy-owl in the United States (NDMC 2022, unpaginated). Additionally, 
models predict that the distribution of suitable habitat for saguaros, 
the primary pygmy-owl nesting substrate within the Sonoran Desert 
ecoregion, will substantially decrease over the next 50 years under a 
moderate climate change scenario (Weiss and Overpeck 2005, p. 2074; 
Thomas et al. 2012, p. 43).
    Climate change scenarios project that drought will occur more 
frequently and increase in severity, with a decrease in the frequency 
and increase in severity of precipitation events (Seager et al. 2007, 
p. 9; Cook et al. 2015, p. 6; Pascale et al. 2017, p. 806; Williams et 
al. 2020, p. 317; BOR 2021, p. 23). Drought and changes to the timing 
and intensity of precipitation events may reduce available cover and 
prey for pygmy-owls adjacent to riparian areas through scouring flood 
events and reduced moisture retention. The extent to which changing 
climatic patterns will affect the pygmy-owl is better understood 
following the past decade of observations in the field. For example, in 
northern Sonora, the summer monsoon's precipitation (or lack thereof) 
has a significant effect on whether or not juvenile pygmy-owls reach 
adulthood, as the lizards preferred by these owls are more abundant 
when summer precipitation does not fall below normal levels. Climate 
change has made the amount of summer precipitation more variable than 
it used to be. Average summer monsoons in the Sonoran Desert produce 
2.43 inches of rain. In years like 2019 and 2020, however, when summer 
rainfall was significantly below average (0.66 inches and 1.0 inches 
respectively), there was less prey for juveniles to eat as they entered 
adulthood, and thus fewer owls survived. In years like 2015-2016, when 
the amount of precipitation from the summer monsoon was above average, 
more juveniles survived to adulthood and owl population levels in those 
years did not decline (Flesch 2021, entire).
    Synergistic interactions are likely to occur between the effects of 
climate change and habitat fragmentation and loss. Climate change 
projections indicate that conditions will likely favor increased 
occurrence and distribution of nonnative, invasive species and 
alteration of historical fire regimes. Climate change may also affect 
the viability of the pygmy-owl through precipitation-driven changes in 
plant and insect biomass, which in turn influence abundance of lizards, 
small mammals, and birds (Jones 1981, p. 111; Flesch 2008, p. 5; Flesch 
et al. 2015, p. 26). Decreased precipitation generally reduces plant 
cover and insect productivity, which in turn reduces the abundance and 
availability of pygmy-owl prey species. Similarly, increased 
temperatures reduce pygmy-owl prey activity due to increased energetic 
demands of thermoregulation and a decreased availability of prey and 
cover (Flesch 2014, p. 116; Flesch et al. 2015, p. 26). These indirect 
effects on prey availability and direct effects on prey activity affect 
nestling growth, development, and survival. When decreased 
precipitation affects food supply and increased temperature affects 
prey activity, reduced pygmy-owl productivity is likely to result in 
reduced pygmy-owl resiliency (Flesch et al. 2015, p. 26).
    A recent downscaled hydroclimate study reported predicted climate 
impacts within the range of the pygmy-owl in Arizona (BOR 2021, 
entire). In general, the scenarios for the greenhouse gas emissions 
model that approximates our current trajectory predicts that monsoonal 
rain will be reduced, as well as more highly variable. Temperatures 
will also increase significantly during both winter (between 1.88 
[deg]Fahrenheit (F) and 3.20 [deg]F) and summer (between 2.59 [deg]F 
and 3.34 [deg]F). As a result, streamflow throughout the area covered 
by this effort, including the Avra and Altar valleys, which are 
occupied by pygmy-owls, is likely to be reduced, which would negatively 
impact infiltration into the aquifer. These changes are likely to 
impact pygmy-owls and their prey species in a variety of ways, many of 
them negative. For example, increased evapotranspiration and reduced 
soil moisture could negatively impact prey species that pygmy-owls 
depend on, reduce the amount and/or quality of vegetation necessary for 
roosting, thermoregulation, and predator avoidance, amplify fire risk 
and concomitant compromise of necessary woodland vegetation and 
availability of mature saguaro cacti, as well as lead to reduced 
nestling fitness if nest cavity temperatures rise too high (Flesch et 
al. 2015, p. 26; Service 2022a, chapter 6; Flesch 2021, entire). 
Climate change can also influence natural events, such as hurricanes 
and tropical storms, which can modify and fragment pygmy-owl habitats, 
primarily through loss of woody cover, as evidenced in Texas and 
northeastern Mexico (Hurricane Harvey in 2017, Hurricane Hanna in 2020, 
and Hurricane Ida in 2021). Historical and ongoing threats to the 
pygmy-owl from habitat loss and fragmentation as well as from climate 
change and climate conditions, have shaped the current habitat and 
population conditions of the subspecies throughout its range.
    In summary, climate change and its associated change in conditions 
on the landscape will impact both the eastern and western pygmy-owl 
populations through habitat loss and fragmentation, reduced nest cavity 
availability, reduced prey populations, lower productivity, and reduced 
survivability.

Current Condition

    To assess resiliency, we evaluated six components that broadly 
related to the subspecies' population demography or physical 
environment and for which we had data sufficient to conduct the 
analysis. We assessed each analysis unit's physical environment by 
examining three components determined to have the most influence on the 
subspecies: habitat intactness, prey availability, and vegetation 
health and cover (Flesch 2017, entire). We also assessed each analysis 
unit's demography through abundance, occupancy, and evidence of 
reproduction. We established

[[Page 46923]]

parameters for each component by evaluating the range of existing data 
and separating those data into categories based on our understanding of 
the subspecies' demographics and habitat. Using the demographic and 
habitat parameters, we then categorized the overall condition of each 
analysis unit. We provide a summary of each of the six factors below 
and describe them in detail in the SSA report (Service 2022a, entire).

Demographic Factors

    Abundance: Larger populations have a lower risk of extinction than 
smaller populations (Pimm et al. 1988, pp. 773-775; Trombulak et al. 
2004, p. 1183). Small populations are less resilient and more 
vulnerable to the effects of demographic, environmental, and genetic 
stochasticity, and have a higher risk of extinction than larger 
populations (Trombulak et al. 2004, p. 1183). Small populations may 
experience increased inbreeding, loss of genetic variation, and 
ultimately a decreased potential to adapt to environmental change 
(Trombulak et al. 2004, p. 1183; Harmon and Braude 2010, p. 125; Benson 
et al. 2016, pp. 1-2). The abundance of pygmy-owls within each analysis 
unit must be high enough to support persistence of pygmy-owl population 
groups (multiple breeding pairs of pygmy-owls within relatively 
discrete geographic areas) within the analysis unit. This persistence 
of population groups is accomplished by having adequate patches of 
habitat to support multiple nesting pairs of pygmy-owls and their 
offspring, having adequate habitat connectivity to support 
establishment of additional territories by dispersing young, and having 
a supply of floaters (unpaired individuals of breeding age) within each 
pygmy-owl population group to offset loss of breeding adults and to 
provide potential mates for dispersing juveniles. In order to compare 
the resiliency of the individual analysis units, we estimated the 
general magnitude of the abundance of pygmy-owls within each analysis 
unit (Service 2022a, chapter 6 and table 4.2). However, these estimates 
of the magnitude of abundance should not be construed as actual 
population estimates (see Summary of Current Condition of the 
Subspecies below).
    Occupancy: Sufficiently resilient pygmy-owl populations must occupy 
large enough areas such that stochastic events and environmental 
fluctuations that affect individual pygmy-owls, or population groups of 
pygmy-owls, do not eliminate the entire population. Pygmy-owls are 
patchily distributed across the landscape in population groups of 
nesting owls. Each of these population groups must contain a high 
enough abundance of pygmy-owls to enable the population group to 
persist on the landscape over time. Enough occupied population groups 
of pygmy-owls must also exist on the landscape, with interconnected 
habitat supporting movement among population groups, so that each 
population group can receive or exchange individuals with any given 
adjacent population group.
    Pygmy-owl occupancy is an indicator of habitat conditions as well 
as demographic factors, such as reproduction and survival. Habitats 
that support a high abundance of pygmy-owls are better able to provide 
floaters and available mates to dispersing pygmy-owls from adjacent 
populations. These floaters are able to serve as replacement breeders 
if either or both members of an existing breeding pair are lost. 
Observations indicate that if a site is occupied by a breeding pair, 
they will breed. Survival of adults also affects occupancy, as some 
occupied sites will be abandoned if one of the adult breeders perishes. 
These sites can be reoccupied in the future when floaters or dispersing 
birds move into the area.
    Evidence of reproduction: Adequately resilient pygmy-owl 
populations must also reproduce and produce a sufficient number of 
young such that recruitment equals or exceeds mortality. Current 
population size and abundance reflects previous influences on the 
population and habitat, while reproduction and recruitment reflect 
population trends that may be stable, increasing, or decreasing in the 
future. Adequately resilient populations of the pygmy-owl must have 
sufficient abundance to replace members of breeding pairs that have 
been lost and to support persistent population groups of nesting pygmy-
owls through dispersal. However, the necessary reproductive rate needed 
for a self-sustaining population is unknown. Additionally, key 
demographic parameters of pygmy-owl populations (e.g., survival, life 
expectancy, lifespan, productivity, etc.) are unknown throughout most 
of the geographic range. Due to the lack of information on demographic 
parameters of reproduction, recruitment, and survival, we broadly 
considered evidence of reproduction to include any evidence of 
reproduction (e.g., active nests, presence of eggs or nestlings, 
fledglings, etc.), as well as persistence of occupied territories and 
population groups in an area over a sufficient amount of time to 
indicate evidence of reproduction. Thus, evidence of reproduction on a 
consistent basis over time likely indicates a sufficiently resilient 
population.
    Habitat intactness: Adequately resilient pygmy-owl populations need 
intact habitat that is large enough to support year-round occupancy, as 
well as connectivity between habitat patches to enable dispersal. As 
the baseline for our analysis of habitat intactness, we modeled 
suitable vegetation types across the range of the pygmy-owl that 
provide habitat for the pygmy-owl (Service 2022a, chapter 6 and 
appendix 1). We know that the modeled suitable vegetation does not 
equal pygmy-owl habitat and that the acres of suitable vegetation are 
greater than the actual acres of pygmy-owl habitat. However, modeled 
suitable vegetation does provide a surrogate for acres of pygmy-owl 
habitat. Pygmy-owls are patchily distributed across much of their 
geographic range. These pygmy-owl population groups are dependent on 
interchange of individuals in order to maintain adequate abundance and 
genetic diversity on the landscape. Habitat connectivity is crucial to 
maintaining pathways for the interchange of individuals among pygmy-owl 
population groups (Flesch 2017, entire).
    Prey availability: Adequate prey availability is a key component 
for maintaining resiliency in pygmy-owl populations. Year-round prey 
availability is essential throughout the range of the pygmy-owl, with 
portions of the geographic range characterized by seasonal variability 
in available prey resources. The abundance of many of these prey 
species is influenced by annual and seasonal precipitation through 
increases and decreases in vegetation cover and diversity, which also 
influences insect abundance and availability. Sufficiently resilient 
pygmy-owl populations require adequate precipitation to support year-
round prey availability. This includes appropriately timed 
precipitation to support seasonally available prey such as lizards, 
insects, and small mammals.
    Vegetation cover: Sufficiently resilient pygmy-owl populations 
require adequate vegetation to provide cover for predator avoidance, 
thermoregulation, hunting, and nest cavities. Of primary importance for 
cover is the presence of woody vegetation canopy. Maintenance of the 
health and vigor of this woody cover is a key component to maintaining 
resiliency of pygmy-owl populations.

Summary of Current Condition of the Subspecies

    Currently, the cactus ferruginous pygmy-owl occurs from southern 
Arizona, south to Michoac[aacute]n in the

[[Page 46924]]

western portion of its range, and from southern Texas to Tamaulipas and 
Nuevo Leon in the eastern portion of its range. For our analysis, we 
divided the pygmy-owl's overall range into five analysis units: 
Arizona, northern Sonora, western Mexico, Texas, and northeastern 
Mexico (see Figure 1). In order to compare the resiliency of the 
individual analysis units, we estimated the general magnitude of the 
abundance of pygmy-owls within each analysis unit (Service 2022a, 
chapter 6 and table 4.2). This estimated magnitude of abundance is one 
of the demographic factors used to evaluate the resiliency of each 
analysis unit. These estimates of the magnitude of abundance should not 
be construed as actual population estimates. We lack sufficient data to 
make any statistically meaningful population estimates for any of the 
analysis units. Rather, these estimates of the magnitude of pygmy-owl 
abundance are used as a tool to compare the general abundance of pygmy-
owls in each analysis unit.
    The primary factors currently affecting the condition of cactus 
ferruginous pygmy-owl populations include changing climate conditions, 
and habitat fragmentation and loss. The threats contributing to or 
resulting from these two primary factors do not occur consistently 
across all analysis units, but all analysis units are being impacted by 
one or more of the threats discussed in this final rule and the SSA 
report (see Service 2022a, appendix 5 for a more detailed discussion of 
the particular threats impacting each analysis unit). Information from 
the northern Sonora analysis unit provides evidence of what factors 
contribute to the viability of pygmy-owl populations. Flesch (2014, pp. 
114-117) showed that, at least in the northern portion of the western 
pygmy-owl population, pygmy-owl abundance was consistently higher and 
varied less in areas with more nest cavities, more riparian vegetation, 
and lower land-use intensity, suggesting these factors are important 
drivers of pygmy-owl habitat quality. We have also identified which of 
the five listing factors identified in the Act are influencing the 
current condition of the pygmy-owl.

Resiliency

    The Arizona analysis unit currently has the lowest pygmy-owl 
abundance of all analysis units, which is estimated to be in the low 
hundreds. Habitat fragmentation and loss from urbanization and 
increases in invasive species such as buffelgrass, have reduced the 
availability and connectivity of habitat in this analysis unit (Factor 
A). Additionally, climate conditions have reduced prey availability and 
vegetative cover through increased temperatures and drought (Factor E). 
These factors result in a reduced capacity for this analysis unit to 
withstand stochastic events and result in a low resiliency currently.
    The northern Sonora analysis unit has an estimated pygmy-owl 
abundance in the high hundreds. However, this analysis unit is affected 
by habitat fragmentation from urbanization, agricultural development, 
and associated infrastructure (Flesch 2021, pp. 12-14) (Factor A). 
These stressors increase water use and, in conjunction with climate 
conditions, result in a reduction in the quality and availability of 
pygmy-owl habitat (Factor A). Abundance of pygmy-owls in the Sonoran 
Desert in northwest Mexico, for example, declined about 19-27 percent 
over a 12-year period, and change in owl abundance was highly 
associated with variation in precipitation and temperature (Factor E). 
In addition, hot, dry conditions influence the behavior and health of 
prey species the owl relies upon for food. For example, lizards are 
both less abundant and move less frequently as temperatures rise, 
making it more difficult for owls to spot and capture them (Flesch 
2021, entire).
    Based on moderate owl abundance and some decrease in habitat 
availability and connectivity, the northern Sonora analysis unit has a 
moderate level of population resiliency. Information from surveys and 
monitoring in 2021 in the northern Sonora analysis unit indicated a 
decline in pygmy-owl occupancy and an increase in habitat loss and 
fragmentation (Flesch 2021, pp. 12-14) and is evidence of decreasing 
resiliency in this analysis unit.
    The western Mexico analysis unit is estimated to have tens of 
thousands of pygmy-owls. This analysis unit has some habitat 
fragmentation from urbanization, agricultural development, and 
deforestation of the tropical dry forests (Factor A). Overall, the 
western Mexico analysis unit has high population resiliency due to high 
abundance of pygmy-owls and generally healthy vegetation cover, likely 
as a result of higher levels of precipitation in the region than in 
other parts of the pygmy-owl's range.
    The Texas analysis unit has an estimated pygmy-owl abundance in the 
high hundreds. Land ownership within this analysis unit has resulted in 
habitat fragmentation (Factor A) and, due to agricultural development 
and wood harvesting within the Rio Grande Valley, this analysis unit is 
somewhat genetically isolated from the rest of the geographic range of 
the subspecies (Factor E). Due to moderate pygmy-owl abundance, 
fragmentation of habitat, and some genetic isolation, the Texas 
analysis unit has a moderate level of population resiliency.
    The northeast Mexico analysis unit is estimated to have tens of 
thousands of pygmy-owls. However, this unit has high levels of habitat 
fragmentation due to urbanization and agricultural development (Factor 
A). Overall, the northeast Mexico analysis unit has a moderate level of 
population resiliency with some capacity to withstand stochastic 
events. Rangewide, current condition of the pygmy-owl populations 
indicate that three analysis units are maintaining a moderate level of 
population resiliency, one analysis has low resiliency, and one 
analysis unit has high resiliency.

Representation

    Resiliency, and the factors that drive resiliency, also contribute 
to the pygmy-owl's representation on the landscape. Pygmy-owls occupy a 
diversity of habitat types throughout the geographic range of the 
subspecies and maintain substantial genetic diversity. The subspecies' 
adaptive potential (representation) is currently high due to genetic 
and ecological variability across the range. There is substantial 
genetic diversity across the range (Proudfoot et al. 2006a, entire; 
2006b, entire; Cobbold et al. 2022b, entire) due to isolation-by-
distance and geographic barriers. Additionally, across the range, the 
pygmy-owl occupies a diverse range of ecological settings as a result 
of geographic gradients of vegetation, climate, elevation, topography, 
and other landscape elements. Such ecological diversity could help the 
pygmy-owl adapt to and survive future environmental changes, such as 
warming temperatures or decreased precipitation from climate change.

Redundancy

    We assessed the number and distribution of population groups across 
the pygmy-owl's geographic range as a measure of its redundancy. While 
the abundance and densities of pygmy-owls are lower in some analysis 
units, these portions of the range still contribute in a meaningful way 
to the overall pygmy-owl population. Each analysis unit within the 
geographic range of the subspecies maintains a network of population 
groups that are connected both within and between analysis units. These 
population groups have the potential to recolonize areas where other 
population groups are lost to catastrophic events. All analysis units

[[Page 46925]]

contribute to the total rangewide population, and population groups 
within each analysis unit provide population support for that analysis 
unit and adjacent portions of the range. If an analysis unit is self-
sustaining, it provides redundancy across the range, and may provide 
emigrants to support adjacent analysis units.
    Exchange of individual cactus ferruginous pygmy-owls occurs among 
population groups within the Arizona, northern Sonora, and Texas 
analysis units, and between the Arizona and northern Sonora analysis 
units (Abbate et al. 2000, p. 30; Flesch and Steidl 2007, p. 37; 
Proudfoot et al. 2020, unpaginated; AGFD 2022, unpublished data). 
Habitat fragmentation and reduced vegetation health, as a result of 
ongoing drought and various land uses, have resulted in the extirpation 
of population groups in Arizona and Texas (Factor A), but redundancy 
was exhibited in the northern Sonora analysis unit when drought 
conditions eased and historically occupied areas were reoccupied 
(Flesch et al. 2017, p. 12). However, abundance has once again declined 
in northern Sonora and increased habitat loss and fragmentation likely 
are decreasing pygmy-owl habitat connectivity within this analysis unit 
and likely between the northern Sonora and Arizona analysis units 
(Factor A) because both analysis units are experiencing similar 
conditions (Flesch et al. 2017, entire; Flesch 2021, p. 9).
    Despite existing habitat fragmentation, exchange of individual 
pygmy-owls occurs between population groups and between some analysis 
units is still occurring (Abbate et al. 2000, p. 30; Flesch and Steidl 
2007, p. 37; Proudfoot et al. 2020, unpaginated; AGFD 2022, unpublished 
data). Habitat types used by pygmy-owls vary across the range, with 
some vegetation types being restricted to certain portions of the 
geographic range. It is important to maintain pygmy-owl populations 
throughout the range to provide redundancy to adjacent populations in 
similar habitat conditions. Due to the broad geographic distribution 
and network of population groups that are connected within and between 
some analysis units throughout most of its range, the pygmy-owl has 
some ability to recolonize following catastrophic events (Flesch et al. 
2017, p. 12) and is considered to have adequate redundancy.
BILLING CODE 4333-15-P

[[Page 46926]]

[GRAPHIC] [TIFF OMITTED] TR20JY23.000

Figure 1. Cactus ferruginous pygmy-owl's range in the United States and 
Mexico, including the five analysis units used in the species status 
assessment.
BILLING CODE 4333-15-C

Future Scenarios

    In our SSA report, we defined viability as the ability of a species 
to sustain populations in the wild over time. To help address 
uncertainty associated with the degree and extent of potential future 
stressors and their impacts on species' needs, we assessed the 
principles of resiliency, redundancy, and representation using three 
plausible future scenarios that represent a reasonable range of 
outcomes that we expect could occur. We developed these scenarios by 
identifying information on the following primary factors anticipated to 
affect the cactus ferruginous pygmy-owl in the future: climate change, 
habitat loss and fragmentation, and ongoing conservation efforts 
(Flesch 2017, entire). The three scenarios capture the range of 
uncertainty in the changing landscape and how the pygmy-owl would 
likely respond to changing conditions.

[[Page 46927]]

    We used the best available data and models to project out 30 years 
into the future (i.e., 2050). This is appropriate because, as we 
discuss later in the document, we define 30 years as the foreseeable 
future for our analysis of pygmy-owl viability and whether the species 
is a threatened species. We chose this timeframe based on the 
subspecies' lifespan and observed cycles in population abundance, as 
well as the time period where we could reasonably project certain land 
use changes and urbanization patterns relevant to the pygmy-owl and its 
habitat. The majority of existing projections of urbanization and 
population growth within the geographic range of the pygmy-owl extend 
to 2050. Because urbanization and development are some of the primary 
drivers of habitat loss and fragmentation, we extended our analysis as 
far as we could reasonably project these changes and the subspecies' 
response to those changes. Additionally, the average lifespan of a 
pygmy-owl is 3 to 5 years. Thus, over a 30-year timeframe, we would 
expect 8 to 10 generations of pygmy-owls to be produced, which should 
be an adequate amount to assess the long-term effects of both threats 
and conservation actions. Because the primary avenue through which 
pygmy-owls move across the landscape is through the dispersal of 
juveniles, it can take multiple generations to provide adequate 
exchange of individuals to elicit detectable changes at the population 
group and analysis unit scales. Including multiple generations of 
pygmy-owls also allows adequate time to account for lags in demographic 
factors resulting from changes in environmental conditions. Therefore, 
we conclude that this number of generations is sufficient to assess the 
effective levels of resiliency, redundancy, and representation.
    Monitoring of pygmy-owl occupancy and productivity also indicates 
that, at least in Arizona and northern Sonora, 30 years is an adequate 
time period to document abundance cycles driven by climate conditions. 
Monitoring in both Arizona and northern Sonora from the mid-1990s to 
the present time showed a period of decline in occupancy and 
productivity, primarily due to drought, followed by an increase in 
productivity and occupancy during years of better precipitation such 
that abundance and occupancy recovered to nearly the original levels 
(Flesch et al. 2017, p. 12; Ingraldi 2020, pers. comm.; Service 2022a, 
entire). For more information on the models and their projections, 
please see the SSA report (Service 2022a, entire). Below, we also 
identify which of the five listing factors identified in the Act are 
influencing the pygmy-owl under each future scenario.
    Under Scenario 1 (continuation of current trends), we projected no 
significant changes to the rate of habitat loss and fragmentation 
within the subspecies' range (Factor A). For this scenario, we 
considered that climate change would track Representative Concentration 
Pathway (RCP) 4.5, which is one of four alternative trajectories for 
carbon dioxide emissions set forth by the International Panel on 
Climate Change (IPCC 2014a, pp. 8-9). Specifically, RCP 4.5 is an 
intermediate scenario where carbon dioxide emissions continue to 
increase through 2040, but then stabilize and begin to decline. This 
scenario would result in atmospheric carbon dioxide levels between 580 
and 720 parts per million (ppm) between 2050 and 2100, well above 
current rates of approximately 415 ppm, and would represent an 
approximately 2.5 [deg]Celsius (C) increase in global mean temperature 
relative to the period 1861--1880 (IPCC 2014a, p. 9) (Factor E). We 
also considered that current conservation efforts, such as captive 
rearing, would continue to be limited in their efficacy, due to limited 
resources for agencies and other conservation partners to expand 
implementation. However, we would expect conservation efforts to 
improve modestly with continued efforts to identify appropriate and 
effective methodologies and protocols that mitigate the primary 
limitations to the success of releasing captive-reared pygmy-owls. 
Additionally, climate change will continue to affect the suitability of 
conditions at release sites (poor habitat conditions, reduced prey 
availability, etc.) for captive-reared pygmy-owls, likely limiting the 
effectiveness of pygmy-owl releases unless those effects can be 
mitigated through project protocols (Factor E).
    Under these conditions, we do not anticipate that any of the 
factors used to evaluate resiliency would improve and, in fact, 
vegetation intactness would be reduced due to continued development 
(Factor A). Northeastern Mexico is projected to maintain its current 
level of pygmy-owl abundance because, relative to the current 
condition, substantial changes to habitat conditions are not expected, 
primarily because our analysis indicates reduced impacts from climate 
change on remaining habitat relative to other analysis units. Because 
of this, the northeastern Mexico analysis unit is expected to maintain 
a moderate level of population resiliency under this scenario. 
Conditions in the Arizona analysis unit would continue to decline due 
to continued habitat fragmentation and climate change (Factor A), and 
resiliency would remain low. Resiliency in the remaining three analysis 
units, northern Sonora, western Mexico, and Texas, would decline due to 
continued loss of pygmy-owl habitat, reduced habitat intactness, and a 
reduction in cover and prey availability for cactus ferruginous pygmy-
owls (Factor A). Overall, current levels of population redundancy and 
representation would be maintained rangewide, but at a reduced rate. 
All analysis units would remain occupied; however, representation 
within each analysis unit would likely decline at the population-group 
scale.
    Under Scenario 2 (worsening or increased effects scenario), we 
projected increased rates of habitat loss and fragmentation when 
compared to the current condition and over and above that projected 
under Scenario 1, leading to a decline in pygmy-owl habitat conditions 
(Factor A). For this scenario, we considered that climate change would 
track RCP 8.5, which is the highest greenhouse gas emission scenario. 
Under this scenario, atmospheric carbon dioxide concentrations are 
projected to exceed 1,000 ppm between 2050 and 2100 and would represent 
a 4.5 [deg]C increase in global mean temperature (IPCC 2014a, p. 9) 
(Factor E). We also assumed that conservation efforts that are 
currently underway would not be effective or would not be implemented.
    Increased habitat loss and fragmentation would result in the 
greatest effect on overall resiliency through a reduction in abundance 
and occupancy of pygmy-owls. Increased development and urbanization 
would result in increased permanent losses of habitat (Factor A). 
Indirect effects to vegetation and prey availability as a result of 
climate change would also occur (Factor E). Due to increased habitat 
fragmentation, such as agricultural development, as well as a reduction 
in vegetation health from drought (Factor A), resiliency in the western 
Mexico analysis unit is projected to decline. Under this scenario, 
climate change and increased habitat fragmentation from urbanization 
and agricultural development lead to the loss of some population groups 
within the Texas, Arizona, and northern Sonora analysis units (Factor 
A, Factor E). The resultant decline would decrease representation and 
redundancy within these analysis units. In particular, the Texas and 
Arizona analysis units would become more vulnerable to extirpation 
because of low

[[Page 46928]]

pygmy-owl abundance and occupancy driven by reduced habitat quality as 
a result of drought and high levels of habitat fragmentation from 
ongoing urbanization and agricultural development (Factor E, Factor A). 
Genetic representation would be reduced through the loss of population 
groups or analysis units and the subsequent reduction of gene flow 
(Factor E). Overall, there would be a reduction in resiliency, 
representation, and redundancy within most analysis units, and the 
likelihood of maintaining long-term viability would be considerably 
reduced.
    Under Scenario 3 (improving or reduced effects scenario), we 
project that habitat loss and fragmentation would continue, but at a 
reduced rate (Factor A). For this scenario, we considered that climate 
change would track RCP 4.5 (Factor E), and conservation efforts that 
are currently underway would be effective. We did not include other 
planned conservation efforts in this scenario because we are not aware 
of any that would significantly influence the viability of the 
subspecies.
    Despite effective conservation actions in portions of the range, 
the viability of pygmy-owl populations would continue to decline within 
all five analysis units due to the ongoing effects of habitat loss, 
fragmentation, and climate change (Factor A, Factor E). The positive 
effects of conservation actions would remain localized, and the 
negative effects of the ongoing threats would outweigh these local 
benefits to individual population groups at the scale of the entire 
analysis unit. Resiliency would remain low in the Arizona analysis unit 
and would decline in both the northern Sonora and western Mexico 
analysis units due to a reduction in habitat quality as a result of 
climate change (Factor E). We would expect pygmy-owl habitat 
fragmentation from urbanization, deforestation, and agricultural 
development (Factor A) to continue under this scenario, though at a 
slower rate because of increased efforts to address the impacts from 
climate change and to improve land use decisions, as well as 
implementing habitat-related conservation actions. Resiliency would 
remain in moderate condition for the Texas and northeastern Mexico 
analysis units. Although habitat conditions are expected to continue to 
decline due to drought and climate change (Factor E), we do not expect 
a large decline in pygmy-owl occupancy and abundance in Texas and 
northeastern Mexico. Under this scenario, each analysis unit remains 
occupied and contributes to the representation and redundancy across 
the range of the pygmy-owl. However, within each analysis unit, threats 
continue, albeit at a reduced rate, and the resiliency of population 
groups would decline in three of the five analysis units. Thus, within 
analysis units, representation and redundancy is likely to decrease at 
the population-group scale.

Cumulative Effects

    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed not only individual effects on the subspecies but also their 
potential cumulative effects. We incorporate the cumulative effects 
into our SSA analysis when we characterize the current and future 
condition of the subspecies. To assess the current and future condition 
of the subspecies, we undertake an iterative analysis that encompasses 
and incorporates the threats individually and then accumulates and 
evaluates the effects of all the factors that may be influencing the 
subspecies, including threats and conservation efforts. Because the SSA 
framework considers not just the presence of the factors, but to what 
degree they collectively influence risk to the entire subspecies, our 
assessment integrates the cumulative effects of the factors and 
replaces a standalone cumulative effects analysis.

Conservation Efforts and Regulatory Mechanisms

    In this section, we discuss regulatory mechanisms and conservation 
actions that potentially have influenced or will likely influence the 
current and future viability of the cactus ferruginous pygmy-owl.
Federal Protections
    The pygmy-owl is protected under the Migratory Bird Treaty Act 
(MBTA) (16 U.S.C. 703-712). The MBTA prohibits ``take'' of any 
migratory bird. However, unlike the Act, there are no provisions in the 
MBTA preventing habitat destruction unless direct mortality or 
destruction of an active nest also occurs. Approximately 31 percent of 
the pygmy-owl's historical geographic range in the United States is 
federally owned, with federally-owned lands making up approximately 40 
percent of pygmy-owl habitat in Arizona. However, a substantial extent 
of the known currently occupied habitat occurs on State Trust lands in 
Arizona and on private lands in Texas. Other Federal regulations and 
policies such as the Clean Water Act (33 U.S.C. 1251 et seq.), the 
military's integrated natural resources management plans (INRMPs, such 
as the one for the Barry M. Goldwater Range) (Uken 2008, pers. comm.), 
and National Park Service policy provide varying levels of protection, 
but they have not, to this date, been effective in protecting the 
pygmy-owl from further decline as National Park Service owned lands 
comprise only a small portion of the range of the pygmy-owl.
    Regulations under and implementation of the Clean Water Act help 
provide protections for a range of riparian habitat that is important 
to the pygmy-owl. Court actions and changes in regulations have 
decreased the potential scope of protections for riparian habitats 
within the range of the pygmy-owl. The 2006 Rapanos Supreme Court 
decision restricts the linear extent of jurisdiction to watercourses 
having a ``significant nexus'' with a Traditionally Navigable Water. 
This means that after the Court's decision was implemented starting in 
2008, fewer watercourses were deemed jurisdictional. This ruling has 
had the effect of further reducing past protections of riparian 
habitats. This limitation in the extent of federal jurisdiction 
particularly affected ephemeral streams in the pygmy-owl's Arizona 
habitat. Based on the individual approved jurisdictional determinations 
in Pima County by the U.S. Army Corps of Engineers, it is likely that 
most of the Avra-Altar system, which supports pygmy-owl occupancy, will 
be found to lack significant nexus to the Colorado River system, which 
means that these habitats will not receive the same analysis and 
protection that they received in the past under the Clean Water Act 
(Meltz and Copeland 2007, entire; Keith 2007, entire).
    As a result of the implementation of the 2005 Real ID Act (Division 
B of Pub. L. 109-13), the U.S. Department of Homeland Security (DHS) 
has waived application of the Act and other environmental laws in the 
construction of border infrastructure, including areas occupied by the 
pygmy-owl (73 FR 5272, January 29, 2008). As recently as 2020, DHS 
waived environmental compliance for the construction of border walls 
along the U.S.-Mexico border in Arizona and Texas (Fischer 2019, 
unpaginated; USCBP 2020, unpaginated). Consequently, pygmy-owl habitat 
has been lost and fragmented along most of the border area in Arizona, 
as well as in Texas. Of particular concern is the potential for border 
infrastructure to reduce habitat connectivity into occupied pygmy-owl 
habitat in Mexico (Flesch et al. 2010, pp. 177-179).

[[Page 46929]]

State Protections
    The pygmy-owl is included on the State of Arizona's list of species 
of concern (AGFD 2021a, p. 16). Arizona statutes (ARS Title 17) only 
protect individual pygmy-owls and their nests or eggs and do not 
address destruction or alteration of pygmy-owl habitat. The State of 
Texas lists the pygmy-owl as threatened (Texas Administrative Code, 
title 31, part 2, chapter 65, subchapter G, rule 65.175; TPWD 2009, 
unpaginated; TPWD 2022, unpaginated). This designation allows permits 
to be issued for the taking, possession, propagation, transportation, 
sale, importation, or exportation of pygmy-owls if necessary to 
properly manage that species but, similar to Arizona, does not provide 
any habitat protections (Texas Park and Wildlife Code, chapter 67, 
section 67.0041).
    Texas and Arizona state law prohibit any take (incidental or 
otherwise) of state-listed or protected species. In both states, 
species may only be handled by persons possessing a scientific activity 
permit, scientific permit for research, or other form of authorization 
from the State. While state laws in both Texas and Arizona prohibit the 
capture, trap, take, or kill, or attempt to capture, trap, take, or 
kill of protected wildlife, like the pygmy-owl, they provide no 
protection to their habitats.
Protections in Mexico
    Within Mexico, the distribution of owls is large and includes 
multiple States. The administration of land use in Mexico depends on 
the national government, which implements Natural Protected Areas and 
other Federal programs, and also the policies of each State and even 
municipal governments (Enr[iacute]quez 2021, pers. comm.). This system 
represents a wide range of management, conservation, and natural 
resource use approaches that affect pygmy-owl conservation, resulting 
in inconsistent policies and inconsistent implementation of 
conservation activities. No laws or regulations in Mexico specifically 
protect pygmy-owls and pygmy-owl habitat. Further complicating the 
conservation of the pygmy-owl in Mexico is the sheer diversity of 
entities involved in managing land use in Mexico, each with its own 
mission, goals, and objectives, many of which are not related to 
natural resource conservation. Thus, development and application of 
regulations and land-management activities that promote the 
conservation of pygmy-owls in Mexico is difficult and exceedingly 
complicated (Enr[iacute]quez 2021, pers. comm.).
Conservation Efforts
    Cactus ferruginous pygmy-owl conservation activities have occurred 
sporadically over the past three decades in both the United States and 
in northern Sonora in Mexico. Initial conservation efforts developed 
effective and safe protocols for studying the cactus ferruginous pygmy-
owl and on gathering basic life-history information. Efforts expanded 
in the late 1990s and early 2000s to include important pygmy-owl work 
in Arizona, Texas, and northern Sonora. For the past two decades, 
studies have been irregular and focused primarily on monitoring known 
territories, although work continues on the pygmy-owl captive-breeding 
pilot project, as described below.
Surveying and Monitoring
    AGFD initiated surveys to determine the extent of cactus 
ferruginous pygmy-owl occurrences in Arizona in 1992, when the cactus 
ferruginous pygmy-owl was first petitioned to be listed under the Act. 
Survey and monitoring work by a variety of entities continued through 
2006, when the subspecies was delisted. Prior to delisting, survey and 
monitoring efforts were focused within Pima and Pinal Counties to 
document the occupancy pattern of cactus ferruginous pygmy-owls in 
areas of land use changes, primarily urban development. After the 
pygmy-owl was delisted in 2006, Service and AGFD biologists continued 
to conduct a small number of monitoring surveys. In 2020, AGFD 
coordinated a comprehensive survey effort within the recently occupied 
areas of Arizona, with the help of numerous partners, to gather data on 
the current abundance and distribution of the cactus ferruginous pygmy-
owl in Arizona to inform this listing decision. Specifically, this 
effort included surveys to document distribution, territory occupancy 
monitoring, and some nest searches to document reproduction. This 
latest effort provided data on current distribution of the pygmy-owl in 
Arizona and the number of occupied territories, as well as some 
information on the number of active nesting territories (Ingraldi 2020, 
pers. comm.; AGFD 2021b, pers. comm.). These data are incorporated into 
the SSA report. However, these efforts did not provide any information 
on productivity or survival at these sites. Despite the changing 
regulatory environment and inconsistent availability of resources, 
survey and monitoring activities provide important information on the 
abundance and distribution of pygmy-owl across its range and, with that 
information, managers can more effectively and efficiently work to 
conserve the pygmy-owl.
Nest Box Trials
    Because cactus ferruginous pygmy-owls are secondary cavity nesters 
(birds that nest in cavities excavated by other bird species), the 
number of available cavities may influence the viability of cactus 
ferruginous pygmy-owls on the landscape (Proudfoot 1996, p. 68). Using 
nest boxes as a management tool may enhance the viability of cactus 
ferruginous pygmy-owls by increasing cavity availability and reducing 
predation. Nest boxes also enhance access to the owls during nesting, 
which facilitates research. Research in Texas demonstrated successful 
use of artificial nest structures by cactus ferruginous pygmy-owls 
(Proudfoot et al. 1999, pp. 5-6). In response to concerns about cavity 
availability, two nest box trials were conducted in Arizona in 1998 and 
2006. No cactus ferruginous pygmy-owls used the nest boxes in these 
studies, but low cavity availability was confirmed based on high use of 
the nest boxes by other species, including screech owls. No additional 
nest box studies have been undertaken in Arizona, and the nest box 
study in Texas is no longer active. The information on nest box use in 
Texas has contributed to the conservation of the pygmy-owl in Texas. 
Additional research is needed in other parts of the pygmy-owl's range 
to understand the effectiveness, or lack thereof, of using nest boxes 
as a conservation tool for pygmy-owls.
Captive-Breeding and Population Augmentation
    The AGFD initiated a pygmy-owl captive-breeding feasibility study 
in partnership with the Wild at Heart raptor care facility in Cave 
Creek, Arizona, in 2006. Since then, Wild at Heart has researched and 
tested protocols for a managed breeding program for cactus ferruginous 
pygmy-owls. In 2017, the Phoenix Zoo became the second captive-breeding 
site for pygmy-owls in Arizona and part of the managed breeding program 
when it entered into partnership with the Service and the AGFD. Both 
the AGFD and the Service oversee this program.
    The goal of the managed breeding program for the cactus ferruginous 
pygmy-owl is to develop appropriate protocols for the husbandry and 
breeding of captive pygmy-owls to provide individuals to augment 
existing population groups or establish new population groups in areas 
where suitable habitat exists in Arizona (AGFD 2015, entire). To date, 
these efforts have

[[Page 46930]]

demonstrated: (a) Successful capture and transport of wild cactus 
ferruginous pygmy-owls; (b) safe, healthy, and stress-free captive 
facilities; (c) the development of appropriate care, feeding, and 
maintenance protocols; (d) successful breeding; and (e) appropriate 
care and development of young-of-the-year birds. Three pilot releases 
of captive-bred pygmy-owls have been implemented since the inception of 
this program. This effort establishes the first formal captive-breeding 
for the subspecies and provides the groundwork for evaluation of this 
strategy in wild cactus ferruginous pygmy-owl population augmentation. 
These pilot releases have not resulted in the establishment of new 
pygmy-owl territories or population groups, but they have contributed 
valuable information to developing appropriate release strategies and 
protocols to improve the potential for conservation benefits to the 
pygmy-owl in the future. For example, high mortality rates of released 
captive-bred pygmy owls as a result of weather, prey availability, 
predation, habitat conditions, and lack of pre-release conditioning all 
likely contributed to past failures. However, an adaptive management 
approach is being used to address such mortality factors and improve 
methodology. The partners involved in this project are committed to the 
continuation of this effort into the future.
Conservation Planning
    When the pygmy-owl was listed previously, several municipalities 
located within current or historical pygmy-owl activity areas explored 
or implemented habitat conservation plans (HCPs) under the Act to 
address potential conflicts between development projects and 
requirements of the Act. These HCP plans included the Sonoran Desert 
Conservation Plan (Multi-Species Conservation Plan) developed by Pima 
County (Pima County 2016, entire), the Town of Marana HCP (Town of 
Marana 2009, entire), and the City of Tucson's Avra Valley (City of 
Tucson 2019, entire) and Southlands HCPs (City of Tucson 2013, entire). 
Each of these four HCP efforts identified the cactus ferruginous pygmy-
owl as one of the covered species within their plans. However, most of 
these plans have yet to be completed: to date, only the Pima County HCP 
has been completed and implemented. Pima County is currently conducting 
ongoing surveys and monitoring of pygmy-owl territories on county-
managed lands and has set aside pygmy-owl habitat as part of their 
conservation-lands system in compliance with their HCP. The 
establishment of these conservation lands is an important contribution 
to pygmy-owl conservation in Pima County, but continuing efforts are 
needed to address other threats such as habitat impacts from climate 
change. Pima County's efforts are expected to continue for the 30-year 
life of their permit (through 2046) and longer if the County renews the 
permit.
    Another ongoing conservation planning effort that has the potential 
to support pygmy-owl conservation in the Altar Valley of southern 
Arizona is the Altar Valley Watershed Management Plan. This plan (being 
developed by the Altar Valley Conservation Alliance with numerous 
partners and participants) builds upon existing efforts within the 
Altar Valley to restore and enhance the watershed. The plan will 
describe stewardship practices and identify a series of high-priority 
projects that maximize positive impacts on the land. Projects related 
to watershed restoration have already been implemented at three ranches 
in the Altar Valley. These projects have included one-rock dams and 
other structures to stabilize waterways, road grading to promote water 
harvesting, and enhancement of grasslands through invasive species 
control to promote infiltration and reduce runoff and sedimentation. 
These actions improve vegetation health through increased water 
infiltration and reduced loss of soil and vegetation due to erosion. 
These benefits improve riparian vegetation along drainages enhancing 
pygmy-owl habitat conditions and connectivity. Ranches within the Altar 
Valley of southern Arizona have maintained open space and contributed 
to the conservation of pygmy-owls for over 20 years. Overall, the 
conservation planning efforts implemented to date have contributed to 
the conservation of the pygmy-owl through protecting or enhancing 
important pygmy-owl habitat in Arizona and providing a path towards 
long-term habitat viability and maintenance.
    In Mexico, Federal, State, and municipal protected areas comprise 
approximately 11 percent of the historical pygmy-owl range in Mexico. 
These areas can work well as conservation strategies for the cactus 
ferruginous pygmy-owl. There is now a new option for protected areas 
called Voluntary Conservation Areas ([Aacute]reas Destinadas 
Voluntariamente a la Conservaci[oacute]n; ADVA), which are areas 
identified for conservation. These ADVA could be a potential 
conservation strategy for the pygmy-owl in the future with improved 
design, management, and enforcement (Burquez and Martinez-Yrizar 1997, 
p. 378; Valdez et al. 2006, p. 272; Burquez and Martinez-Yrizar 2007, 
p. 546; Enr[iacute]quez 2021, pers. comm.).

Summary of Comments and Recommendations

    In the proposed rule published on December 22, 2021 (86 FR 72547), 
we requested that all interested parties submit written comments on the 
proposal by February 22, 2022. We also contacted appropriate Federal 
and State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. 
Newspaper notices inviting general public comment were published in the 
Arizona Daily Star and Corpus Christi Caller-Times. We held a public 
hearing on January 25, 2022. All substantive information received 
during comment periods has either been incorporated directly into this 
final determination or is addressed below.

Peer Reviewer Comments

    As discussed in Peer Review above, we received comments from three 
peer reviewers. We reviewed all comments we received from the peer 
reviewers, including comments on substantive issues and new information 
contained in the SSA report. The peer reviewers generally concurred 
with our methods and conclusions, and provided additional information, 
clarifications, and suggestions to improve the final SSA report. Peer 
reviewer comments are addressed in the following summary and were 
incorporated into the final SSA report as appropriate.
    (1) Comment: One peer reviewer commented that the construction of 
the border wall will cause substantive ecological damage and function 
as a barrier to many terrestrial animals. However, the peer reviewer 
finds the idea that the border wall would be an impediment or barrier 
to pygmy-owls to be unfounded.
    Our response: No studies have specifically looked at how border 
walls and associated infrastructure may affect pygmy-owl movements. We 
do not currently know if these structures will be a barrier or an 
impediment on pygmy-owls. However, observations in the field indicate 
that barriers similar to the border wall may affect pygmy-owl movement 
patterns. Pygmy-owl flight patterns are generally less than 30 m (100 
ft) and typically only 1.5 to 3.0 m (5 to 11 ft) above the ground 
(Flesch and Steidl 2007, p. 35; AGFD 2008, pers. comm.). Flesch et al. 
(2010, pp. 7-9) show that the vegetation gaps, in association with the 
tall fences, may limit transboundary movements by pygmy-owls. The 
fences and vehicle

[[Page 46931]]

barriers along the border, when considered in conjunction with patrol 
roads, drag roads, and vegetation removal, result in a combination of 
unvegetated area with a raised structure in the middle causing an 
impediment to pygmy-owl movement. Observations reported in the 
literature show that pygmy-owls avoid crossing open areas associated 
with roadways (Abbate et al. 1999, p. 54; Flesch and Steidl 2007, pp. 
6-7; Flesch 2017, p. 5; Flesch et al. 2017, entire; Flesch 2021, pp. 
12-14). Given other known impediments to pygmy-owl movements, it is 
likely border infrastructure could affect cross-border movements by 
pygmy-owls, at least at some border locations. The SSA report discusses 
factors that logically could result in some impact to pygmy-owl cross-
border movements. However, pygmy-owls are capable flyers and easily 
navigate small openings in their normal day-to-day behaviors. Pygmy-
owls are sometimes observed very high in trees, at or above the height 
of border infrastructure. Therefore, the border wall itself may not 
affect all cross-border movements, depending on the crossing site 
characteristics. However, the border wall in conjunction with lighting, 
patrol and interdiction activities, and vegetation clearing present 
more factors potentially deterring pygmy-owl movements. This issue 
needs more research and monitoring to determine whether and how such 
border infrastructure affects pygmy-owl movements.
    (2) Comment: A peer reviewer expressed concern in considering the 
eastern and western populations to be the same subspecies. The peer 
reviewer expressed concerns about considering each of these to be 
redundant populations because, with no evidence of interchange between 
the two populations, each population would be unable to provide rescue 
to the other population.
    Our response: This issue was investigated by Proudfoot et al. 
(2006a, entire; 2006b, entire) and K[ouml]nig et al. (1999, entire), 
who concluded the eastern and western populations may comprise two 
separate subspecies. This information, in combination with the 
historical descriptions of distributions for the subspecies cactorum, 
as discussed in the SSA report, provided some general evidence that 
reclassification of this subspecies could have merit. However, after 
reviewing the best available information, we find that the evidence of 
delineating the range of these subspecies is uncertain and 
inconsistent. Peer reviewers of our 2011 12-month finding pointed out 
that a combination of factors, including morphological, vocal, and 
genetic, need to be considered in greater depth, with additional 
sampling and analysis of existing samples, to determine if the 
petitioned taxonomic classification should be accepted, and we are in 
agreement with these comments.
    Given the uncertainty and lack of clarification found in the best 
available scientific and commercial information, we rely on the 
``biological expertise of the Department and the scientific community 
concerning the relevant taxonomic group'' (50 CFR 424.11(a)) and the 
``standard taxonomic distinctions (50 CFR 424.11(a)). Additional 
genetic sampling and analysis in 2021 through AGFD, while providing 
additional samples and an updated analysis of Proudfoot et al.'s 
(2006a, entire, and 2006b, entire) work, did not provide compelling 
evidence to change our conclusions regarding the taxonomic 
classification of the cactus ferruginous pygmy-owl (Cobbold et al. 
2022b, entire) (see also Background above). We do not yet have enough 
information to say whether pygmy-owls at the far ends of their 
distribution (Texas and Arizona) represent different subspecies, but 
the work by Cobbold et al. (2022b, entire) suggests there is likely 
some degree of redundancy between the eastern and western populations 
of the pygmy-owl at the southern end of the range. In other words, 
cactus ferruginous pygmy-owls in the southern portion of the range are 
more similar to each other than to pygmy-owls in the northern extremes 
of the range in Arizona and Texas. See also our response to comment 8 
below.
    (3) Comment: One peer reviewer pointed out that the influence 
diagram in the SSA report (figure 4.1) was missing some linkages and 
suggested careful consideration of additional linkages that may need to 
be added.
    Our response: We acknowledge that there are numerous other 
connections not shown in the influence diagram in the SSA report. 
However, we have simplified the graphic to illustrate the most 
important influences on the subspecies. We have added the two 
additional connections suggested by the reviewer and added 
clarification in the SSA report acknowledging the complicated and 
interconnected nature of stressors, habitat, individuals, and 
population resiliency.

Federal Agency Comments

    (4) Comment: The Forest Service stated that a critical habitat 
designation would help to define areas in which to restrict wood 
harvesting within the Coronado National Forest.
    Our response: We will be publishing a proposed rule to designate 
critical habitat as a separate action and will solicit public comments 
on the critical habitat designation at that time. Our intent is to 
publish a proposed critical habitat rule within 1 year of this final 
listing rule.

Comments From States

    (5) Comment: The Arizona Department of Forestry and Fire Management 
and the Arizona Department of Transportation expressed concerns about 
prohibitions on prescribed fire in the Sonoran Desert and thinning of 
woody plants, specifically as it relates to fire management, invasive 
species management, and for public safety along roadways. The Arizona 
Department of Transportation requested that vegetation management and 
brush removal within the recovery zone of roads and other strategic 
locations be included as an exception in the 4(d) rule.
    Our response: We acknowledge and understands the importance of 
managing vegetation strategically along roadways and for fire and 
invasive species management that can promote the conservation of native 
species and their habitats. However, a broad exception under a 4(d) 
rule for such activities would prevent us from working with partners to 
conduct these activities in a way that minimizes effects to the pygmy-
owl and its habitat. The design of projects such as these are dependent 
upon a number of site-specific factors requiring unique recommendations 
and approaches so that pygmy-owl-specific measures can be incorporated. 
We have a number of tools in place to reduce consultation workloads for 
action agencies, including programmatic consultations, which would 
allow for strategic planning of vegetation projects while allowing 
adequate planning and review. We look forward to the opportunity to 
work collaboratively with partners in Arizona and Texas to help conduct 
necessary vegetation management projects while also ensuring that 
effects to listed species are considered and minimized.
    (6) Comment: The Texas Parks and Wildlife Department (TPWD) and 
Arizona Department of Transportation requested increased clarification 
for which habitat restoration projects would be excepted under the 4(d) 
rule.
    Our response: We have provided additional clarity for which habitat 
projects are excepted under the 4(d) rule and which would require a 
section 7 consultation. This additional clarification can be found 
under Provisions of the 4(d) Rule below.

[[Page 46932]]

    (7) Comment: The TPWD requested additional information regarding 
the potential to use the State permitting process for surveying and 
monitoring activities.
    Our response: Discussion of this issue with TPWD has revealed they 
are only authorized to permit activities that involve direct handling 
of protected species, and, therefore, they do not permit the types of 
activities excepted under the 4(d) rule for pygmy-owls, according to 
Texas State Parks and Wildlife Code (Sec. 43.021). For this reason, we 
will still require a Federal section 10 permit for pygmy-owl activities 
in Texas.
    (8) Comment: The Texas Comptroller of Public Accounts and the AGFD 
questioned the validity of the subspecies' taxonomy and stated that the 
Service should first address the taxonomic uncertainty prior to making 
a listing decision.
    Our response: As discussed in Background and Peer Reviewer 
Comments, above, and extensively in the SSA report (Service 2022a, 
Section 2.1-2.2), we rely on the currently accepted taxonomy when 
making listing decisions. Although there have been proposed revisions 
to the pygmy-owl taxonomy, these revisions have not been accepted by 
the American Ornithological Society, the recognized authority for avian 
taxonomic classification. Therefore, we have analyzed the cactus 
ferruginous pygmy-owl as currently described (Glaucidium brasilianum 
cactorum).
    (9) Comment: The Texas Comptroller of Public Accounts stated that 
pygmy-owl habitat in Texas makes up only five percent of the range of 
the subspecies and that the population there is most likely secure. 
They also state that the population in Texas is greater than that of 
Arizona.
    Our response: When analyzing the status of a species throughout its 
range, we do not focus only on the portions of the species' range 
within one State. Therefore, the percentage of the range within each 
State in a species' range is not directly relevant to its status 
throughout its range. We agree that the population in Texas is likely 
greater than that in Arizona and have acknowledged that fact in this 
rule. Although populations in one State may be higher than another, we 
analyze the status of the species throughout all or a significant 
portion of its range when making listing decisions. We rely on the 
current and future conditions, and the threats and stressors acting on 
the species and its habitat, to determine whether or a not a species is 
in danger now or likely to become endangered in the foreseeable future 
throughout all, or a significant portion of its range, not within each 
State in which it occurs. Although pygmy-owls in Texas still occur 
within rural private lands, much of the range of the pygmy-owl in Texas 
has been developed and connectivity to Mexico has been significantly 
reduced. The pygmy-owl has been listed as a Species of Greatest 
Conservation Need by TPWD since 2005, and in 2020, TPWD downgraded the 
ranking of the subspecies from vulnerable to imperiled. TPWD, the State 
authority for managing the wildlife in Texas, was closely involved in 
the development of the SSA for the pygmy-owl and provided data for this 
species in Texas. For these reasons, we do not conclude that the 
species is secure in Texas for the foreseeable future.
    (10) Comment: The Texas Comptroller of Public Accounts stated that 
the information used in the SSA report may have been best available but 
was incomplete and outdated. They stated that the Service should not 
make a listing decision without robust population and habitat data.
    Our response: When making listing decisions, we are required to 
rely on the best available information. The Act does not require that 
we conduct our own research and monitoring before making a listing 
determination. Often, we are required to make listing decisions based 
on incomplete or outdated information, as many of the species we 
analyze are rare and it is difficult to get adequate sample sizes for 
study or analysis. For these reasons, many of these species are not 
thoroughly studied. We do not delay providing protections to species 
while awaiting additional data and, while we would welcome new 
information not included in our SSA report, to date our analysis 
includes the best available information for the pygmy-owl.
    (11) Comment: The AGFD and other commenters stated that the Service 
did not provide adequate support linking projected future human 
population growth to direct effects to the status of the pygmy-owl. The 
commenters stated that the Service needed direct information related to 
the subspecies' status before, during, and after this human population 
growth to demonstrate an effect to the subspecies.
    Our response: We acknowledge that we do not have an extensive set 
of quantified empirical data for a detailed analysis of the effects of 
urbanization and development on pygmy-owls and pygmy-owl habitat. There 
have been no specific studies quantifying the effects to pygmy-owls and 
their habitat from urban development. However, as presented in Appendix 
6 of the SSA Report (Service 2022a, Appendix 6), the data we have 
indicate that substantial areas of habitat within the range of the 
pygmy-owl have been lost due to urban growth and development 
(approximately 100,000 acres cumulatively in the Arizona and Texas 
analysis units over the past 10 years), and it is reasonable to predict 
that such loss will continue as population growth and development 
patterns trend upward into the future and more suitable habitat is 
converted for urban development. We used the best available information 
on population growth and development projects to project potential 
losses of pygmy-owl habitat into the future.
    Additionally, in response to a comment we received during the 
public comment period, we completed additional analysis on land cover 
changes within pygmy-owl habitat in Texas and Arizona over the past 
decade (2010-2020). The commenter provided an analysis on changes in 
land cover within the pygmy-owl analysis areas during the time period 
of 2010-2015 and suggested that the impacts to pygmy-owl habitat were 
not as great as we presented in the proposed rule and SSA report. The 
commenter's data sources were different than what we used in the SSA, 
but the commenter presented a reasonable issue with regard to the data 
presented. Because it is important to consider the scope, scale, and 
the factors included in different sources of data, we conducted 
additional analysis using data sources that provided the same type of 
data that the commenter used in their analysis. This allowed us to 
compare the results of additional sources of data with the results 
presented by the commenter. This additional analysis provides different 
results than presented by the commenter, but this outcome is expected 
because of differing time periods, categories of land cover and land 
use, and the scope and scale of the data.
    Both analyses provide useful information to consider as we evaluate 
the status of the pygmy-owl. Neither analysis changed the outcome of 
our listing decision or our assessment of the effects of human 
population growth on the pygmy-owl. Our analysis showed greater impacts 
to pygmy-owl habitat than the data provided by the commenter and 
supported our finding that some areas of pygmy-owl habitat have been 
lost or modified and habitat fragmentation has continued, at least in 
Texas and Arizona, during this time period. Our further analysis 
related to the impacts of various land uses on pygmy-owl habitat over 
the past decade

[[Page 46933]]

can be found in appendix 6 of the SSA report (Service 2022a, appendix 
6).
    (12) Comment: The AGFD claimed that agricultural development should 
not be considered a current threat to the pygmy-owl in Arizona as the 
effects of agricultural development occurred primarily historically.
    Our response: Agricultural development was primarily a historical 
threat to the distribution of pygmy-owls in Arizona (Stromberg 1993, 
pp. 117-119; Jackson and Comus 1999, pp. 215-255). However, 
agricultural development is still a local impact to pygmy-owls in 
Arizona and is impacting habitat connectivity and pygmy-owl movements 
in some parts of Arizona, primarily in Pima and Pinal Counties (Service 
2022a, Appendix 6). Additionally, agricultural development is currently 
resulting in ongoing pygmy-owl habitat loss and fragmentation in Texas 
and in all the analysis units in Mexico. The best available information 
indicates it is a current and projected threat to pygmy-owl habitat.

Public Comments

    (13) Comment: One commenter stated that the Service did not explain 
why the proposed 4(d) rule was not analyzed under the National 
Environmental Policy Act.
    Our response: As stated under National Environmental Policy Act (42 
U.S.C. 4321 et seq.) below and in the proposed rule, regulations 
adopted pursuant to section 4(a) of the Act are exempt from the 
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and do 
not require an environmental analysis under NEPA. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This includes listing, delisting, and 
reclassification rules, as well as critical habitat designations and 
species-specific protective regulations promulgated concurrently with a 
decision to list or reclassify a species as threatened. The courts have 
upheld this position (e.g., Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995) (critical habitat); Center for Biological Diversity v. 
U.S. Fish and Wildlife Service., 2005 WL 2000928 (N.D. Cal. Aug. 19, 
2005) (concurrent 4(d) rule)).
    (14) Comment: Two commenters stated that grazing is not beneficial 
nor adequately managed and should not be included in the 4(d) rule.
    Our response: As discussed in the proposed rule, we considered 
mechanisms to ensure livestock grazing is conducted in a manner that 
promotes the conservation of the pygmy-owl. While developing our 
proposed rule, we determined that livestock grazing requires local 
management that can address the specific conditions of each individual 
operation and, therefore, including a broad, general exception for 
grazing within the 4(d) rule would not be beneficial to the subspecies. 
We are not currently allowing any exceptions from section 9 
prohibitions for livestock grazing. Therefore, future livestock grazing 
actions with a Federal nexus that may affect the pygmy-owl will require 
a section 7 consultation with the Service.
    (15) Comment: One commenter requested clarification of the phrase 
``accelerate the time horizon'' that was used in our discussion of the 
concentration of threats within the Sonoran Desert Ecoregion.
    Our response: To provide additional clarity, we have removed the 
statement ``accelerate the time horizon'' from our discussion in Status 
Throughout a Significant Portion of Its Range below. In summary, we 
found that the Sonoran Desert Ecoregion has a concentration of threats 
to the pygmy-owl; however, we determined that these threats did not 
rise to the level of those that would place the pygmy-owl in danger of 
extinction now in that portion of its range. Therefore, we determined 
that the pygmy-owl's status within the Sonoran Desert Ecoregion is the 
same as the rangewide status of threatened.
    (16) Comment: One commenter stated that the Service did not conduct 
a regulatory flexibility analysis for the 4(d) rule to determine if the 
proposed action would affect small entities. The commenter stated that 
the issuance of a 4(d) rule is a distinct regulatory action from the 
listing of a species under section 4(a) of the Act.
    Our response: In 1982, Congress added to the Act the requirement 
that classification decisions be made ``solely on the basis of the best 
scientific and commercial data available.'' In addition, the Conference 
Report accompanying those amendments made clear that one purpose of 
adding that language was to ensure that requirements like those in E.O. 
12866 do not apply to classification decisions. Specifically, it states 
that economic considerations have no relevance to determinations 
regarding the status of species and the economic analysis requirements 
of Executive Order 12291 [the predecessor of E.O. 12866], and such 
statutes as the Regulatory Flexibility Act and the Paperwork Reduction 
Act, will not apply to any phase of the listing process. H.R. Conf. 
Rep. No. 97-835, at 20. Section 4(d) requires that the Service issue 
regulations deemed necessary and advisable to provide for the 
conservation of a species whenever any species is listed as a 
threatened species. We consider this 4(d) rule to be a necessary and 
advisable phase of the listing process to put in place protections for 
this threatened species.
    (17) Comment: Two commenters stated that the proposed rule did not 
explain the need to extend all section 9 prohibitions for endangered 
species to the pygmy-owl and did not adequately explain why the 4(d) 
rule was necessary and advisable.
    Our response: As discussed in Final Rule Issued Under Section 4(d) 
of the Act below, in promulgating regulations under section 4(d) of the 
Act, we have broad discretion to select appropriate provisions tailored 
to the specific conservation needs of threatened species. The second 
sentence of section 4(d) states that the Secretary ``may by regulation 
prohibit with respect to any threatened species any act prohibited 
under section 9(a)(1), in the case of fish or wildlife, or 9(a)(2), in 
the case of plants.'' The use of the word ``may,'' along with the 
absence of any specific standards, in the second sentence grants us 
particularly broad discretion to put in place prohibitions with respect 
to threatened species that section 9 prohibits with respect to 
endangered species. We have found that in most cases, it is necessary 
and advisable to apply to a threatened species: (1) all of the general 
prohibitions that apply to endangered species under section 9 and then 
(2) tailor the exceptions to those prohibitions to address the specific 
conservation needs of the species. We often lack a complete 
understanding of the causes of a species' decline and affording a 
threatened species protections that are similar to the protections for 
an endangered species should help provide the necessary tools over time 
as we learn more about the species' status and threats. In this 
instance, we have determined that it is necessary and advisable to 
extend all section 9 prohibitions to the pygmy-owl (see Final Rule 
Issued Under Section 4(d) of the Act below) and that doing so 
accomplishes our goal of putting in place protections that will both 
prevent the species from becoming endangered and promote its recovery. 
As new information becomes available, we have the option to revise 
species-specific rules accordingly.
    (18) Comment: We received several comments pertaining to critical 
habitat designation for the pygmy-owl.
    Our response: We are working on a proposed critical habitat rule 
and will address comments pertaining to critical habitat designation 
during the public comment period for that proposed rule.

[[Page 46934]]

    (19) Comment: Two commenters stated that a court determined the 
Service's interpretation of the phrase ``significant portion of its 
range'' was unlawful (Ctr. For Biological Diversity v. Jewell, 248 F. 
Supp. 3d 946 [D. Ariz. 2017]; 248 F. Supp. 3d at 955-58), and in the 
vacatur and remand of the 2011 pygmy-owl finding (76 FR 61856, October 
5, 2011), the court's ruling addressed only the ``significant portion 
of the range'' policy and that, on remand, the Service did not need to 
address any other aspect of the 2011 finding.
    Our response: The court's decision in 2017 vacated and remanded the 
entire 12-month finding. Additionally, in the 10 years since our 
previous decision, there has been new information, as outlined in 
Summary of New Information Since 2011 Finding. Therefore, we were 
required to revisit our previous finding and assess all new information 
to ensure we are making a listing determination based on the best 
available information.
    (20) Comment: Two commenters indicated that the Service included no 
information regarding recent, specific rangewide habitat losses that 
would cause pygmy-owl habitat conditions to have declined since the 
2011 12-month finding.
    Our response: As discussed in the SSA report (Service 2022a, 
chapter 7) and clarified in this rule, substantial new information on 
the status of the pygmy-owl has become available since our 2011 
finding. Our analysis shows that, while the same threats may not be 
occurring in all analysis units, every analysis unit within the range 
of the pygmy-owl is experiencing ongoing threats. Threats in each 
analysis unit have resulted in past pygmy-owl habitat loss and are 
likely to result in additional pygmy-owl habitat loss and fragmentation 
into the future. It would not be reasonable to conclude that ongoing 
threats to habitat that demonstrably caused habitat losses in the past 
are not continuing to cause habitat losses now and into the foreseeable 
future. Additionally, we updated the threats section based on 
references and comments provided during the public comment period and 
on updated references found while developing our response to comments. 
Thus, we used the best available information to determine that, while 
most rangewide habitat losses are not caused by a single threat, the 
combination of threats in all analysis units results in rangewide 
impacts to pygmy-owl habitat.
    (21) Comment: Two commenters interpreted the information found in 
the SSA report and proposed rule as indicating that pygmy-owl 
population estimates are greater in the proposed rule and SSA report 
than in the Service's 2011 12-month finding (76 FR 61856, October 5, 
2011).
    Our Response: The population estimates to which the commenters 
referred (Service 2022a, table 4.2) are not actual population estimates 
but, rather, an estimate of the general magnitude of pygmy-owl 
abundance within each analysis unit. Thus, these estimates of the 
magnitude of abundance in the SSA should not be interpreted as precise 
population estimates, but rather as a tool to compare the general 
abundance of pygmy-owls in each analysis unit. As explained in the SSA 
report, we lack actual, quantitative pygmy-owl abundance data, even in 
those analysis units where some survey and monitoring activities have 
occurred. The actual abundance of pygmy-owls is unknown for every 
analysis unit, particularly for the western Mexico and northeastern 
Mexico analysis units. However, the best available information 
indicates that abundance, distribution, or both have declined in the 
three analysis units where survey and monitoring data do exist 
(Arizona, Texas, and Northern Sonora), and anecdotal information 
suggests this is true for the other analysis units in Mexico. We have 
clarified this point in the SSA report (Service 2022a, Section 6.2) and 
this final rule (see Summary of Current Condition of the Subspecies).
    (22) Comment: Several commenters pointed out that listing the 
pygmy-owl is not warranted because nearly 90 percent of the pygmy-owl's 
range is in Mexico, where the subspecies is considered common and faces 
few serious threats.
    Our response: While the majority of the pygmy-owl's overall 
geographic range is found in Mexico, the owls and owl habitat in the 
United States contributes to the viability of the subspecies as a 
whole, and it is on the overall viability of the subspecies that we 
make listing determinations. We used the best available information to 
estimate the magnitude of pygmy-owl abundance; while we estimate that 
the pygmy-owl occurs in higher densities in the western Mexico and 
northeastern Mexico, we have the least information on pygmy-owl 
abundance and density from these areas of the range. Additionally, the 
pygmy-owls in those regions face a number of serious threats, such as 
urbanization, deforestation, and climate change. As described in the 
SSA report (Service 2022a, entire) and this final rule, we find that 
the best available information supports our finding that, while the 
threats may vary across the range of the pygmy-owl, there are 
substantial threats affecting the pygmy-owl's viability in all five of 
the described analysis units, including the three analysis units found 
in Mexico.
    (23) Comment: Two commenters stated that pygmy-owls in Arizona 
should be listed as endangered, either due to a significant portion of 
the range in Arizona being endangered or as a distinct population 
segment (DPS). One commenter believed that the population in Arizona is 
isolated from Sonora and may be discrete. They also stated that Arizona 
should qualify as a DPS due to its unusual ecological setting.
    Our response: There are innumerable ways to divide up a species' 
range; however, we only analyze configurations that we find may meet 
the definition of a DPS or a significant portion of the range. We 
analyzed multiple potential configurations for both a significant 
portion of the range and DPS but discussed in the proposed rule only 
those that we felt were reasonable under our policy and guidance.
    We determined that Arizona does not constitute a significant 
portion of the range of the pygmy-owl because it makes up only 12 
percent of the total pygmy-owl range, contains a small proportion of 
the total number of pygmy-owls, and contains a similar habitat to that 
found elsewhere in the range. See Status Throughout a Significant 
Portion of Its Range for our full analysis.
    We also found that Arizona is not a valid DPS. Under our DPS 
policy, a population must be both discrete and significant to be 
considered a DPS. We agree that under our DPS policy (61 FR 4722, 
February 7, 1996) the pygmy-owl in Arizona would likely meet the 
discreteness condition through the presence of the international 
border. However, the Arizona population of pygmy-owls does not meet the 
significance requirement. Under this condition, we assess the 
biological and ecological significance of the population and can 
consider, among other factors, a population segment in an ecological 
setting unusual or unique for the taxon, evidence that the loss of the 
discrete population would result in a significant gap in the range, 
evidence that the discrete population segment represents the only 
surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range, or 
evidence that the discrete population segment differs markedly from 
other populations of the subspecies in its genetic

[[Page 46935]]

characteristics. There is no evidence that the Arizona population is 
genetically separate from the remainder of the range. This population 
does not occur in a unique or unusual setting as it has a similar 
ecological setting to habitat in Northern Sonora, comprising primarily 
Sonoran Desert vegetation. The loss of the Arizona population would 
create a gap in the range of the pygmy-owl, but not a significant one. 
Because this population is on the northern extreme of the pygmy-owl 
range, the gap that would result would be on the periphery of its 
range. While the court acknowledged the presence of this gap in the 
range, it found that this gap would not be significant to the species 
as a whole and we agree based on the best available data. In looking at 
the best available data and considering the pygmy-owl population 
segment in Arizona, we determined that it does not meet the 
significance condition of our DPS policy. For additional discussion of 
our DPS analyses see, Distinct Vertebrate Population Segment below. For 
an in-depth discussion of the DPS analysis for Arizona, see also our 
final rule to delist the Arizona DPS of the pygmy-owl (71 FR 19452, 
April 14, 2006).
    (24) Comment: We received several comments stating the pygmy-owl is 
endangered in the Sonoran Desert ecoregion, which constitutes a 
significant portion of the range of the pygmy-owl. One commenter stated 
that the Service should have analyzed the eastern and western 
populations of the pygmy-owl as a DPS, and we should have then found 
the Sonoran Desert was a significant portion of the range of the 
western DPS.
    Our response: To clarify our analysis of whether it would make 
sense to separately analyze a potential eastern and western population 
DPS, we have added additional discussion under Analysis of Potential 
Distinct Population Segments, below. Although the Sonoran Desert 
ecoregion is a unique ecological setting, this region does not have a 
different status from the rest of the range. We have determined that 
the subspecies is in danger of extinction in the foreseeable future 
throughout its range. Therefore, when examining the populations in the 
Sonoran Desert Ecoregion, we looked to determine if this region had a 
different status from the rest of the range. The Sonoran Desert 
Ecoregion currently supports an abundance of pygmy-owls in the high 
hundreds and a moderate amount of intact, suitable vegetation (Service 
2022a, chapter 6). Consequently, these factors are currently 
maintaining an overall moderate level of resiliency in this portion of 
the range. There is currently habitat connectivity with evidence of 
pygmy-owl movement among population groups, providing redundancy 
throughout the Sonoran Desert Ecoregion. Representation is currently 
being maintained through pygmy-owl occupancy of a variety of vegetation 
types throughout the Sonoran Desert Ecoregion with gene flow among 
these population groups. Although threats may be more concentrated in 
this region, this ecoregion is not in danger of extinction now, but is 
likely to become so in the foreseeable future and has the same status 
as the rest of the range. Therefore, we determined that, although the 
Sonoran Desert ecoregion has a concentration of threats and may 
constitute a significant portion of the range, the population of pygmy-
owls there is not currently in danger of extinction and has the same 
status as the subspecies rangewide. When assessing a potential 
significant portion of the range, we can choose to first address the 
question of whether a portion has a different status than the species 
rangewide or whether a portion is significant. In this instance, we 
addressed the status question first and determined that the Sonoran 
Desert Ecoregion does not have a different status than the subspecies 
rangewide and, therefore, did not need to move on to address the 
question of significance of this portion. For additional discussion of 
our analyses see Status Throughout a Significant Portion of Its Range 
and Distinct Vertebrate Population Segment below.
    (25) Comment: Several commenters stated they believed the pygmy-owl 
in the Sonoran Desert Ecoregion met the criteria for a DPS.
    Our response: Our policy (61 FR 4722, February 7, 1996) requires 
that a DPS be markedly separate from other populations of the same 
taxon. There are no physical, geographic, or behavioral barriers that 
separate the petitioned Sonoran Desert DPS from the rest of the pygmy-
owl's range to the south. Although there may be some impediments to 
movement in central Sonora, this situation does not prevent movements 
of pygmy-owls between northern and southern Sonora. Genetic 
differentiation is a result of isolation by distance. This finding is 
supported by genetic sampling (Cobbold et al. 2022b, entire; Proudfoot 
2006a, entire). The Sonoran Desert Ecoregion does differ ecologically 
from the remainder of the areas within its range. However, as described 
above and in Distinct Vertebrate Population Segment below, the best 
available scientific and commercial data do not indicate that this 
ecological difference has resulted in any morphological, physiological, 
or genetic differentiation within pygmy-owl populations in the Sonoran 
Desert and that these populations are not markedly separated from 
populations to the south.
    (26) Comment: One commenter requested that the Service clarify and 
justify criteria used to make decisions pertaining to distinct 
population segments and a significant portion of the range. 
Specifically, the commenter mentioned our discussion of the Sonoran 
Desert as a potential DPS whereby we assert that connectivity occurs 
between the Sonoran Desert ecoregion and southern Sonora, as evidenced 
by genetic sampling. The commenter requested additional clarification 
on how much restriction of gene flow would be required for these 
populations to be considered discrete. The commenter also requested the 
benchmarks used to determine whether a geographical extent was 
significant or not.
    Our response: Neither the Act nor our regulations provide or 
require benchmarks or thresholds for determining whether a population 
or portion of the range should be considered a distinct population 
segment or a significant portion of the range. Our DPS policy (61 FR 
4722) provides guidance for analyzing areas as potential DPSs; however, 
we have broad discretion to make science-based decisions on a species-
by-species basis, including whether to analyze specific areas as 
potential DPSs or significant portions of the species' range. In this 
instance, the best available data show that there is enough genetic 
exchange between the Sonoran Desert ecoregion and southern Sonora to 
maintain gene flow (Proudfoot et al. 2006a, entire; 2006b, entire; 
Cobbold et al. 2022b, entire). For additional information on our DPS 
analysis, see our responses to comments 25 and 26. Because we 
determined that the Sonoran Desert Ecoregion does not meet the 
discreteness condition of our DPS policy (76 FR 61856, October 5, 
2011), we did not further analyze its significance under the policy. 
For additional discussion of our analyses see Status Throughout a 
Significant Portion of Its Range and Distinct Vertebrate Population 
Segment below.
    (27) Comment: One commenter stated that, under the most likely 
future scenario in the SSA report, the increased effects scenario, 
there would be a high probability of extirpation within the next 30 
years in portions of the subspecies' range.

[[Page 46936]]

    Our response: Given the complexity of and the limited data 
available on the future influences and subspecies' responses to those 
influences, we did not base our listing decision on any one scenario 
but rather considered the range of plausible future conditions and risk 
to the subspecies. Although we do acknowledge that threats to the 
subspecies are not consistent across the range, we have determined 
through our DPS and significant portion of the range analyses that 
those areas either do not meet the criteria for a DPS or significant 
portion of the range, or that the species is not currently in danger of 
extinction in any of those areas. See comments 25, 26, 27, and Status 
Throughout a Significant Portion of Its Range and Distinct Vertebrate 
Population Segment below.
    (28) Comment: One commenter stated that the Service did not apply 
the five-factor test required by section 4(a) of the Act but instead 
used the three R's principles of resiliency, redundancy, and 
representation.
    Our response: As discussed under Regulatory and Analytical 
Framework, we are required to determine if a species is an endangered 
species or threatened species because of any of the five factors listed 
in the Act. These factors represent broad categories of natural or 
human-caused actions or conditions that could have an effect on a 
species' continued existence. However, the mere identification of a 
threat under one of these factors does not necessarily mean that a 
species meets the statutory definition of an endangered or threatened 
species. We must evaluate each threat and its expected effects on the 
species, and then analyze the cumulative effect of all the threats on 
the species as a whole. We examined the following threats to the cactus 
ferruginous pygmy-owl: Climate change and climate condition (Factor E), 
habitat loss and fragmentation (Factor A), human activities and 
disturbance (Factors B and E), waived or ineffective regulatory 
mechanisms (Factor D), human-caused mortality (Factors B and E), 
disease and predation (Factor C), and small population size (Factor E), 
and we determined that the primary threats to the subspecies are 
climate change and climate condition, and habitat loss and 
fragmentation.
    The supporting Species Status Assessment (SSA) report documents the 
results of our comprehensive biological review of the best scientific 
and commercial data regarding the status of the subspecies, including 
an assessment of these potential threats to the subspecies. The SSA 
report does not represent our decision on whether the subspecies should 
be proposed for listing as an endangered or threatened species under 
the Act. In the SSA, we use the conservation biology principles of 
resiliency, redundancy, and representation to assess the viability of 
the subspecies. This biological assessment does not replace the 
additional application of the standards within the Act. Rather, it 
provides the scientific basis that informs our regulatory decisions, 
which involve the further application of the standards within the Act 
and its implementing regulations and policies. We found that, based on 
analysis in the SSA regarding the projected future condition of the 
species, the cactus ferruginous pygmy-owl is likely to become an 
endangered species in the foreseeable future primarily due to Factors A 
and E.
    (29) Comment: One commenter stated that we should have used a 
shorter timeframe when analyzing future conditions of the pygmy-owl and 
suggested timeframes of 10 years and 20 years.
    Our response: The Service has wide discretion when determining the 
appropriate timeframes when analyzing future scenarios and projecting 
future conditions of a species. As discussed in Future Scenarios above, 
we chose a 30-year timeframe to adequately capture natural variation 
and fluctuations in owl populations such as described in Flesch et al. 
2017 (entire) and because it was the timeframe where we could make 
reasonably reliable predictions about the threats to the species.
    (30) Comment: One commenter indicated that we overemphasized the 
effect of buffelgrass on pygmy-owls. The commenter stated that 
buffelgrass occurs primarily on slopes, which are not generally used by 
pygmy-owls.
    Our response: Our analysis shows that the extent of the current 
distribution of buffelgrass and the rate at which that distribution is 
and can expand, as well as the detrimental effects to native vegetation 
communities, do indeed result in negative impacts to the viability of 
pygmy-owl populations. These impacts include loss of nest cavity 
substrates, reduction in woody vegetation cover, loss of habitat 
connectivity, and reduction in prey diversity and availability. While 
buffelgrass certainly seems to thrive on slopes, it also occurs on 
bajadas and on the valley floor in areas that support pygmy-owl 
habitat. The literature is clear that buffelgrass is an invasive threat 
to all vegetation communities that provide pygmy-owl habitat (Esque and 
Schwalbe 2002, p. 165; Lyons et al. 2013, p. 71; Wied et al. 2020, 
entire). See also Invasive Species above and the SSA report (Service 
2022a, chapter 7). Thus, we did not overemphasize this effect.
    (31) Comment: Two commenters stated that pygmy-owl populations in 
the Altar Valley in Arizona have remained relatively stable and that, 
since there are pygmy-owls in captivity, they are not at risk of 
extinction.
    Our response: Listing determinations are made on the entire 
listable entity, rather than a single population within that listable 
entity. Though controlled propagation has a supportive role in the 
recovery of some listed species, the intent of the Act is ``to provide 
a means whereby the ecosystems upon which endangered species and 
threatened species depend may be conserved.'' Controlled propagation is 
not a substitute for addressing factors responsible for an endangered 
or threatened species' decline and the presence of individuals of the 
species in captivity does not mean that a species is not in danger of 
extinction. Our first priority is to recover wild populations in their 
natural habitat wherever possible, without resorting to the use of 
controlled propagation. This position is fully consistent with the Act. 
As discussed in Determination of Cactus Ferruginous Pygmy-owl Status 
below, we have determined that the pygmy-owl is not in danger of 
extinction now but is likely to become so in the foreseeable future 
throughout its range.
    (32) Comment: Two commenters felt that instead of a critical 
analysis of the best available data, the proposed rule relies on 
opinion and a subjective categorization of the future impacts of 
threats to the pygmy-owl. They stated that the SSA report lacks 
sufficient specific, relevant data that can be objectively analyzed.
    Our response: As with most uncommon or rare species that the 
Service evaluates under our authorities, information, particularly 
quantitative data, is limited for the pygmy-owl. In our analysis of the 
status of the pygmy-owl, we used specific, quantifiable information 
wherever available. Where such information was not available, we relied 
on expert elicitation and review, as well as the best professional 
judgment of the biologists and scientists working on our review of the 
status of the pygmy-owl. Our assessment of the future impacts of 
threats to the pygmy-owl is based on reasonable and plausible scenarios 
of future climate change, habitat fragmentation and loss, conservation 
efforts, and the subspecies' responses to these influences. We do not 
agree with the commenters' statements that this finding relies on 
opinions or subjective categorization of future

[[Page 46937]]

impacts of the threats to pygmy-owls. Instead, we based this assessment 
on the best scientific and commercial data available, which includes 
habitat data and modeling (see Service 2022a, appendices 1, 4, and 6), 
climate data analysis (see Service 2022a, appendix 2), available 
scientific literature (see Literature Cited for Service 2022a and this 
final rule), and direct input from experts. We used the best available 
scientific and commercial data to develop plausible and representative 
factors and categories on which to evaluate the current condition of 
the subspecies, as well as future scenarios that represent a range of 
plausible futures. These are not speculative or subjective but based on 
the best available information alongside expert elicitation as 
described in the SSA report. Our methods for assessing the future 
resiliency, redundancy, and representation of the subspecies were 
selected given the nature of the best available information and are 
described in detail in chapters 6 and 8 of the SSA report (Service 
2022a, chapters 6 and 8). Additionally, the pygmy-owl SSA report went 
through a peer and partner review process as described under Peer 
Review.
    (33) Comment: Two commenters stated that the discussions of human 
population growth and development, and the potential for pygmy-owl 
habitat loss and fragmentation, were simplistic and failed to fully 
evaluate potential regional growth patterns and land use that influence 
habitat suitability for pygmy-owl.
    Our response: Due to lack of specific and quantitative data on 
where human population growth and development would occur, we used 
regional growth and development projections, as these are the best 
available information on the subject at this time. There is much 
uncertainty about where future development projects will occur in the 
foreseeable future within the range of the pygmy-owl; therefore, it is 
difficult to project the specific areas of pygmy-owl habitat that will 
be affected. However, our analysis shows that the condition of all five 
analysis units will decline in the future, some to low condition, thus 
requiring that areas of suitable, intact pygmy-owl habitat outside of 
those currently occupied by pygmy-owls will be needed to maintain or 
improve the pygmy-owl's viability throughout its range. Therefore, 
understanding and considering the effects that future population growth 
and development will have includes not only areas currently occupied by 
pygmy-owls, but also unoccupied areas of pygmy-owl habitat that will be 
needed to sustain future viability of pygmy-owl populations. Our 
approach allowed us to evaluate all areas of suitable vegetation in a 
consistent manner across the range of the pygmy-owl and included 
consideration of areas of projected human population growth across the 
range of the pygmy-owl.
    (34) Comment: One commenter felt the Service erroneously emphasized 
the need for undeveloped and unfragmented habitat and provided some 
information suggesting that pygmy-owls appear quite tolerant of human 
activity, even in some of the least productive habitats within its 
range.
    Our response: As the commenter pointed out, the best available 
information does include some analysis of the level of development 
tolerated by pygmy-owls. However, the information provided by the 
commenter comes from one specific population group in the Arizona 
analysis unit, and this population group is currently extirpated with 
the last detection of pygmy-owl in this population group occurring in 
2006. Surveys and monitoring in this area over the past 16 years have 
not detected any pygmy-owls. Substantial development and habitat 
fragmentation have occurred in this area over this time period, 
reducing the potential for pygmy-owls to disperse into this area and 
establish home ranges in the remaining habitat. As a result, we 
conclude that the poor condition of this population supports our 
determination that pygmy-owls have limited tolerance for development 
and fragmentation.
    Conversely, the pygmy-owl population group southwest of this 
population group is characterized by large areas of undeveloped habitat 
and reduced levels of fragmentation and has maintained, and even 
increased, abundance of pygmy-owls. Additionally, pygmy-owl research in 
northern Sonora has also shown the detrimental impacts of development 
on habitat occupancy by pygmy-owls (Flesch 2021, entire). Pygmy-owls 
can exist in areas that have a relatively low level of habitat 
disturbance and development, but the presence of large blocks of 
nesting habitat and unfragmented dispersal corridors is necessary for 
the long-term viability of pygmy-owl populations and population groups. 
Thus, the best available information does not support the commenter's 
suggestion that pygmy-owls appear quite tolerant of human activity, 
even in some of the least productive habitats within its range.
    (35) Comment: One commenter stated that the ordinal ranking scale 
we used for our analyses of suitable vegetation and habitat intactness 
did not allow for the nuances of habitat selection by individual pygmy-
owls that has been observed in the field and that these analyses risk 
biasing the analyses towards undisturbed lands. The commenter stated 
that more rigorous analysis should have been conducted.
    Our response: Field observations are extremely valuable in gaining 
insights about the life history and habitat use of a species. However, 
these data are sporadic and are largely unavailable across the range of 
the pygmy-owl. Therefore, although the information from such studies 
informed our models, fine-resolution data are not available at a scale 
that would inform a rangewide analysis of pygmy-owl habitat. As 
acknowledged in our SSA report (Service 2022a, section 6.1), our 
analyses required us to make several educated assumptions. As noted in 
the report, we lack specific habitat measurements related to the needs 
of the pygmy-owl (for example, canopy cover, tree density and height, 
species composition, structural diversity, patch size, and cavity 
availability required by the pygmy-owl) across its range. Therefore, we 
determined what available data sources and datasets were appropriate 
surrogates for pygmy-owl habitat requirements that we could apply 
consistently across the entire range of the pygmy-owl. Under this 
approach, we used the best available information in the form of 
remotely sensed measures of habitat metrics as surrogates for habitat 
characteristics needed by pygmy-owls and made reasonable assumptions 
based on this information. We acknowledged that these measures are not 
synonymous with pygmy-owl habitat, and we refer to the areas modeled 
with these tools as areas of appropriate vegetation. Although we 
recognize that pygmy-owls may use areas with higher levels of 
disturbance, such as low-density urban areas, these areas do not 
constitute high-quality pygmy-owl habitat and do not support the long-
term viability of the subspecies; therefore, we did not consider these 
areas suitable for pygmy-owls (see also comment 34 above). Based on 
information from Arizona, Texas, and northern Sonora, areas supporting 
larger patches of undisturbed, native woody vegetation are needed for 
the long-term viability of pygmy-owls (Proudfoot 1996, pp. 75-76; 
Abbate et al. 1999, entire; Abbate et al. 2000, entire; Flesch et al. 
2015, pp. 22-26; Flesch et al. 2017, entire; Cobbold et al. 2021, 
entire). We are required to use the best available information when 
making listing decisions. The Act and existing laws and regulations do 
not

[[Page 46938]]

require us to implement additional studies and research in order to 
fill in all the gaps in available data prior to making a 12-month 
finding. We cannot wait until all possible information is available as 
such a requirement would result in an undeterminable delay in meeting 
the statutory timelines and protections of the Act. Comment 34 above 
provides additional information related to the commenter's statement.
    (36) Comment: Two commenters stated that we did not analyze data on 
growth and land cover change within the range of the pygmy-owl since 
our 12-month finding (76 FR 61856, October 5, 2011). The commenter 
stated that we should have analyzed this change using available remote 
sensing tools rather than rely on past and potential future threats.
    Our response: Based on this comment, we examined the National Land 
Cover Dataset Enhanced Visualization and Analysis tool. Although this 
tool provides some measure of increases in developed areas and changes 
in forested areas, we found that the areas classified as forest did not 
adequately capture the areas used by pygmy-owls. Additionally, this 
tool is run at the county level, so it is difficult to see the changes 
to land cover in the areas specifically used by the pygmy-owl. In our 
SSA report, we used the LANDFIRE dataset to analyze habitat 
fragmentation within the range of the pygmy-owl, which gave us specific 
and detailed information about where development and fragmentation had 
occurred within the range of the pygmy-owl (Service 2022a, appendix 1; 
LANDFIRE 2016, unpaginated).
    We rely heavily on the scientific community to provide the data 
needed in making listing decisions, and we welcome new information that 
may inform updated SSAs, future listing decisions, and 5-year status 
reviews. Therefore, in response to this comment, and to be certain we 
have used the best available data to analyze growth and changes in land 
cover, we completed some additional analysis on the effects of certain 
land uses in Texas and Arizona over the past decade (2010-2020) on 
pygmy-owl habitat. This additional analysis examined land cover changes 
within pygmy-owl habitat over the past decade and can be found in 
appendix 6 of the SSA report (Service 2022a, appendix 6) (see also our 
response to comment 10). Although this additional analysis does not 
change our general determinations on changes in growth and land-use 
cover since 2011 or the outcome of our listing decision, it provides 
additional support for our finding that areas approximately 100,000 
acres of pygmy-owl habitat have been lost or modified and habitat 
fragmentation has continued, at least in Texas and Arizona, during this 
time period (Service 2022a, Appendix 6).
    (37) Comment: One commenter stated that our intactness model 
described in the SSA report was overly conservative and inappropriate 
for our analysis and that our usage of the 200-acre aggregated pixel 
size in this analysis did not account for the variation in pygmy-owl 
home range sizes throughout their range. That commenter also stated 
that we did not explain the biological criteria we used in developing 
the habitat intactness model, but rather it was dependent on 
professional judgment, and the ordinal ranking scale we used in our 
analysis did not allow for the nuance of habitat selection by pygmy-
owls.
    Our response: As mentioned previously, our analysis did not include 
specific, quantitative data from each analysis unit within the range of 
the pygmy-owl as such data is not available. Rather, we examined the 
available data sources and datasets to determine an appropriate 
surrogate for the habitat needs of the pygmy-owl that could be applied 
consistently across the range of the pygmy-owl. We determined that 
remote sensed data related to land uses and vegetation characteristic 
is the best available information that can be consistently applied 
across the range of the pygmy-owl. These data were selected based on 
their ability to represent the biological needs of the pygmy-owl. We 
based our analysis of land cover types that may support pygmy-owls on 
habitat selection data for Arizona, Texas, and northern Sonora (Abbate 
et al. 1999, entire; Abbate et al. 2000, entire; Flesch 2003, entire; 
Flesch et al. 2015, entire; Proudfoot et al. 2020, entire). As part of 
our analysis, we overlaid pygmy-owl locations with land cover data to 
help inform our models in both the United States and Mexico. As 
mentioned previously, the Act and existing laws and regulations do not 
require us to implement additional studies and research in order to 
fill in all the gaps in available data prior to making a 12-month 
finding.
    Our models were constructed using publicly available data sets. 
Detailed layers are more readily available in the United States and 
more limited in Mexico. We attempted to maintain consistency when 
building models across the range of the pygmy-owl. Our approach is 
necessarily broad because we lack specific data regarding many of the 
habitat attributes needed by pygmy-owls to maintain population 
viability. We acknowledge that these needs and the quality of habitat 
vary across the large geographical range of the pygmy-owl, but local 
and detailed studies and research related to these local variations are 
lacking. The use of surrogate factors that are available to us in 
existing data sets results in our best possible approach to address 
important factors across the large and diverse geographical range of 
the pygmy-owl.
    As we state in our SSA report, data used in our models do not 
completely describe all of the characteristics of pygmy-owl habitat 
because insufficient information is available to include all pygmy-owl 
habitat needs in the models. These models do not describe all aspects 
of pygmy-owl habitat and thus, are not reported as pygmy-owl habitat 
areas, but rather as appropriate vegetation areas in the SSA. However, 
in the absence of rangewide, habitat-suitability information, assessing 
the trends or conditions in these remote sensing data is useful in 
understanding trends in vegetation conditions affecting the pygmy-owl. 
In other words, changes or conditions in this context are related to 
the conversion of these surrogate factors into conditions that are very 
likely related to actual habitat quality for pygmy-owls. As discussed 
in this final rule, the best available data indicate that habitat 
fragmentation and habitat loss are threats to the viability of the 
pygmy-owl. Therefore, it is reasonable to conclude that developed land 
cover has a lower habitat quality than intact habitat.
    (38) Comment: One commenter stated that the Service relied heavily 
on future climate change, which has a high degree of uncertainty, and 
that in our 2011 12-month finding we found that the Sonoran Desert 
would be most vulnerable to climate change and that effects to the 
subspecies in the remainder of the range in Mexico would be less severe 
or that there would be no evidence of negative impact. The commenter 
further stated that there is no evidence that models have become more 
certain since our 2011 12-month finding.
    Our response: There is always uncertainty when projecting future 
conditions. However, we used widely accepted climate models that 
covered a range of plausible future climate conditions in our analysis 
(Service 2022a, chapters 7 and 8, and appendix 2; IPCC 2014b, entire). 
These models have been updated and refined since our 2011 12-month 
finding and are thus more accurate than those used in that listing 
decision (IPCC 2014b, p. 56). We find that the Sonoran Desert Ecoregion 
is likely the most vulnerable portion of the pygmy-owl range to climate 
change

[[Page 46939]]

effects (see Status Throughout a Significant Portion of Its Range). 
However, as discussed in Climate Change and Climate Conditions, as well 
as in the SSA report, changes to climate are anticipated to result in 
impacts throughout the range of the pygmy-owl.
    (39) Comment: One commenter stated that threats are concentrated in 
the Sonoran Desert and that pygmy-owl abundance is not being 
significantly affected by those threats in the majority of the western 
portion of the pygmy-owl's range to the extent that the subspecies 
rangewide is in danger of extinction or likely to become so in the 
foreseeable future.
    Our response: Although we agree that the Sonoran Desert Ecoregion 
has a concentration of threats to the pygmy-owl (see Status Throughout 
a Significant Portion of Its Range), significant threats are acting 
throughout the range of the pygmy-owl. The threats acting on the 
subspecies are discussed in depth in the SSA report and summarized in 
this rulemaking, and we also included a table illustrating the threats 
within each analysis unit (Service 2022a, chapter 7 and appendix 5).
    (40) Comment: Two commenters indicated that the Service did not 
adequately explain why we found the subspecies is threatened in our 
current listing decision when it was determined to be ``not warranted'' 
in our 2011 12-month finding, particularly given that much of the 
information was the same in both documents.
    Our response: In order to clarify the changes to the information 
and status of the pygmy-owl, this final rule includes a new section 
specifically outlining the new information we considered subsequent to 
our 2011 12-month finding (see Summary of New Information Since the 
2011 12-Month Finding).
    (41) Comment: Several commenters requested additional clarification 
on what types of actions would or would not be excepted under the 4(d) 
rule related to development and habitat restoration and enhancement 
activities. In particular, they asked whether certain development 
activities, vegetation management, invasive species management, fuels 
management, or activities covered under a safe harbor agreement for 
another species would qualify for an exception under this part of the 
4(d) rule, as well as specific questions related to the use of 
development guidelines, prescribed fire, and brush management. These 
commenters specifically asked that vegetation management along roadways 
and fuels management be included in the 4(d) rule. One commenter 
requested that development activities that followed certain guidelines 
be included in the 4(d) rule. Another commenter recommended that we 
consider the list of activities developed for use in the draft 
Programmatic Safe Harbor Agreement for the Masked Bobwhite Quail and 
review these activities in relation to the section 4(d) rule for pygmy-
owl to provide assurance that these activities qualify as exemptions.
    Our response: We have provided additional clarification to our 
discussion of habitat restoration and enhancement activities within the 
section entitled Provisions of the 4(d) Rule. In addition, we have 
included additional explanation for why the activities of development, 
roadway vegetation management, activities within a safe harbor 
agreement, fuels management, and some uses of prescribed fire are not 
included in the 4(d) rule. Any activities covered by the 4(d) rule 
should not negatively impact the pygmy-owl and should contribute to the 
conservation of the pygmy-owl. We acknowledge and understand the 
importance of managing vegetation strategically along roadways and in 
other areas for fire and invasive species management, and in 
development design and planning to promote the conservation of native 
species and their habitats. However, a broad exception under a 4(d) 
rule for such activities would prevent us from working with partners to 
conduct these activities in a way that minimizes effects to the pygmy-
owl and its habitat. The design of projects such as these are dependent 
upon a number of site-specific factors requiring unique recommendations 
and approaches so that pygmy-owl-specific measures can be incorporated. 
Other regulatory approaches are available, such as under section 7 and 
section 10 of the Act, and the activities and practices outlined by 
commenters will be appropriately considered and included during the 
implementation of these approaches.

Determination of Cactus Ferruginous Pygmy-Owl Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of endangered species 
or threatened species because of any of the following factors: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) Overutilization for commercial, recreational, 
scientific, or educational purposes; (C) Disease or predation; (D) The 
inadequacy of existing regulatory mechanisms; or (E) Other natural or 
manmade factors affecting its continued existence.

Status Throughout All of Its Range

    We examined the following threats to the cactus ferruginous pygmy-
owl: climate change and climate condition (Factor E), habitat loss and 
fragmentation (Factor A), human activities and disturbance (Factor B 
and Factor E), human-caused mortality (Factor B and Factor E), disease 
and predation (Factor C), and small population size (Factor E), and we 
determined that the primary threats to the subspecies are climate 
change and climate condition, and habitat loss and fragmentation. 
Existing regulatory mechanisms (Factor D) and conservation efforts do 
not address the threats to the cactus ferruginous pygmy-owl to the 
extent that listing the subspecies is not warranted.
    Population resiliency is highly variable across the range of the 
pygmy-owl. Overall, three analysis units maintain a moderate level of 
resiliency, with western Mexico maintaining a high level of resiliency 
and Arizona with a low level of resiliency. Therefore, the majority of 
the analysis units we examined maintain some ability to withstand 
stochastic events. Additionally, the western Mexico and northeastern 
Mexico analysis units are estimated to have a magnitude of abundance of 
tens of thousands of pygmy-owls. Due to the broad geographic 
distribution and network of population groups that are connected within 
and between some analysis units throughout most of its range, the 
pygmy-owl has some ability to recolonize following catastrophic events 
and is considered to have adequate redundancy. The cactus ferruginous 
pygmy-owl currently has high genetic and ecological variability across 
the range. This ecological diversity provides the subspecies with 
sufficient representation and may allow the pygmy-owl to adapt to, and 
survive, future environmental change if this representation can be 
maintained.
    After evaluating threats to the subspecies and assessing the 
cumulative effect of the threats under the Act's

[[Page 46940]]

section 4(a)(1) factors, we conclude that the risk factors acting on 
the cactus ferruginous pygmy-owl and its habitat, either singly or in 
combination, are not of sufficient imminence, intensity, or magnitude 
to indicate that the subspecies is in danger of extinction now (an 
endangered species) throughout all of its range. Despite current 
stressors, the subspecies currently maintains adequate resiliency, 
redundancy, and representation across the range such that the 
subspecies is currently able to withstand stochastic and catastrophic 
events and maintain adequate genetic and ecological variation 
throughout its range. However, our analysis of the cactus ferruginous 
pygmy-owl's future conditions shows that the threats to the subspecies 
are likely to continue and, in some cases and areas, increase into the 
future, resulting in continued loss and fragmentation of habitat and a 
reduction in abundance, putting the subspecies at risk of extinction 
within the foreseeable future. We selected 30 years for the scope of 
our analysis in the foreseeable future because it captures multiple 
generations of pygmy-owls as well as stochastic variation in climate. 
Additionally, 30 years was the maximum time frame for which we could 
reasonably project certain land-use changes, urbanization, and climate 
patterns relative to the pygmy-owl and its habitat.
    Under all future scenarios, we project a continued reduction in 
species viability throughout the range of the subspecies due to climate 
change (Factor E), habitat loss, and habitat fragmentation (Factor A). 
In 30 years, even under our most optimistic scenario, the reduced 
effects scenario, no analysis units will be in high condition, three 
will be in moderate condition, and two will be in low condition, a 
decrease from current conditions where one population is in low 
condition, three are in moderate condition, and one is in high 
condition. Over the next 30 years, many of the analysis units will 
become increasingly vulnerable to extirpation through the degradation 
of habitat conditions. We anticipate that urbanization and development 
(Factor A) will continue under all future scenarios and in all analysis 
units. Invasive species (Factor A) will continue to spread into pygmy-
owl habitat in most analysis units and deforestation and wood 
harvesting will continue in all three analysis units in Mexico. 
Continued loss and degradation of pygmy-owl habitat (Factor A) will 
reduce overall species resiliency, impeding the ability of the 
subspecies to withstand stochastic events and increasing the risk of 
extirpation following such events. The loss of population groups will 
lead to a reduction in representation, reducing the subspecies' ability 
to adapt over time to changes in the environment, such as climate 
change.
    The magnitude of current pygmy-owl abundance in three of the five 
analysis units is low to moderate, and while the remaining two analysis 
units have current pygmy-owl population estimates that are an order of 
magnitude higher (tens of thousands), these estimates do not represent 
actual pygmy-owl numbers and our analysis of future scenarios indicates 
that these estimates will all decline with an associated decline in the 
abundance and distribution of pygmy-owl population groups. This 
expected reduction in both the number and distribution of sufficiently 
resilient population groups will reduce redundancy and impede the 
ability of the subspecies to recolonize following catastrophic 
disturbance. Thus, after assessing the best available information, we 
conclude that the cactus ferruginous pygmy-owl is not currently in 
danger of extinction but is likely to become in danger of extinction 
within the foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 435 
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the aspect of the Final 
Policy on Interpretation of the Phrase ``Significant Portion of Its 
Range'' in the Endangered Species Act's Definitions of ``Endangered 
Species'' and ``Threatened Species'' (Final Policy; 79 FR 37578, July 
1, 2014) that provided that the Service does not undertake an analysis 
of significant portions of a species' range if the species warrants 
listing as threatened throughout all of its range. Therefore, we 
proceed to evaluating whether the species is endangered in a 
significant portion of its range--that is, whether there is any portion 
of the species' range for which both (1) the portion is significant; 
and (2) the species is in danger of extinction in that portion. 
Depending on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    Following the court's holding in Everson, we now consider whether 
there are any significant portions of the species' range where the 
species is in danger of extinction now (i.e., endangered). In 
undertaking this analysis for cactus ferruginous pygmy-owl, we choose 
to address the status question first--we consider information 
pertaining to the geographic distribution of both the species and the 
threats that the species faces to identify any portions of the range 
where the species may be endangered.
    We evaluated the range of the cactus ferruginous pygmy-owl to 
determine if the species is in danger of extinction now in any portion 
of its range. The range of a species can theoretically be divided into 
portions in an infinite number of ways. We focused our analysis on 
portions of the species' range that may meet the definition of an 
endangered species. For the cactus ferruginous pygmy-owl, we considered 
whether the threats or their effects on the species are greater in any 
biologically meaningful portion of the species' range than in other 
portions such that the species is in danger of extinction now in that 
portion.
    The statutory difference between an endangered species and a 
threatened species is the time frame in which the species becomes in 
danger of extinction; an endangered species is in danger of extinction 
now while a threatened species is not in danger of extinction now but 
is likely to become so in the foreseeable future. Thus, we reviewed the 
best scientific and commercial data available regarding the imminence 
of threats that are driving the cactus ferruginous pygmy-owl to warrant 
listing as a threatened species throughout all of its range. We then 
considered whether these threats or their effects are occurring in any 
portion of the species' range such that the species is in danger of 
extinction now in that portion of its range. We examined the following 
threats: climate change and climate condition (Factor E) and habitat 
loss and fragmentation (Factor A), including cumulative effects.
    We found a concentration of threats, i.e., the impacts of climate 
change (Factor E), urbanization (Factor A), and invasive species 
(Factor A), in the Sonoran Desert Ecoregion, which extends from Arizona 
south into Sonora, Mexico. Climate change impacts to the pygmy-owl in 
the Sonoran Desert Ecoregion are likely to include loss of vegetation 
cover, reduced prey availability, increased predation,

[[Page 46941]]

reduced nest site availability, and vegetation community change. For 
example, models predict that the distribution of suitable habitat for 
saguaros, the primary pygmy-owl nesting substrate within the Sonoran 
Desert Ecoregion, will substantially decrease over the next 50 years 
under a moderate climate change scenario (Weiss and Overpeck 2005, p. 
2074; Thomas et al. 2012, p. 43).
    Climate models project that, by the end of the 21st century, the 
Sonoran Desert will experience an increase in drought conditions with a 
transition to a drier and more arid climate (Seager et al. 2007, p. 9; 
Cook et al. 2015, p. 6; Pascale et al. 2017, p. 806; Williams et al. 
2020, p. 317). Given that this portion of the pygmy-owl's overall range 
is already characterized by arid and hot conditions and is in the midst 
of an extended drought (NDMC 2022, unpaginated), the effects from 
climate change represent a higher concentration of effects than in 
other portions of the pygmy-owl's range, which generally are 
characterized by higher precipitation and lower temperatures resulting 
in a baseline of higher greenness and vegetation health. In general, 
annual precipitation in the Sonoran Desert is positively correlated to 
pygmy-owl productivity (Flesch et al. 2015, p. 26). Timing and quantity 
of precipitation affects lizard and rodent abundance in ways that 
suggest rainfall is an important driver of prey population and 
community dynamics. In general, cool-season rainfall is positively 
correlated with rodent populations and warm-season rainfall is 
positively correlated with lizard populations. Projected increases in 
variability and decreases in quantity of precipitation will likely lead 
to a decrease in prey abundance for the pygmy-owl (Jones 1981, p. 111; 
Flesch 2008, p. 5; Flesch et al. 2015, p. 26).
    Urban expansion and human population growth trends are expected to 
continue in the Sonoran Desert Ecoregion. Between 2010 and 2022, 
Arizona experienced some of the highest population increases in the 
U.S. (U.S. Census Bureau 2021b, unpaginated). Border counties in 
Arizona are projected to increase by 60 percent to 2.5 million by 2050 
(OEO 2018, unpaginated). The Maricopa-Pima-Pinal County areas of 
Arizona are expected to see the population grow by as much as 132 
percent between 2005 and 2050, creating rural-urban edge effects across 
thousands of acres of pygmy-owl habitat (AECOM 2011, p. 13).
    Development in Mexico is focused along the border and this area of 
northern Mexico has faster population growth than other Mexican states 
(Pineiro 2001, pp. 1-2). In Sonora, the population is projected to 
reach 3.5 million by 2030 (CONAPO 2014, p. 25). This development 
focuses potential barriers or impediments to pygmy-owl movements in a 
region that is important for demographic support (immigration events 
and gene flow) of pygmy-owl population groups, including movements such 
as dispersal. If urban expansion and development continues as expected, 
it will encompass a substantial portion of the current distribution of 
the pygmy-owl in the Sonoran Desert Ecoregion.
    The invasion of nonnative vegetation, particularly nonnative 
grasses, has altered the natural fire regime over the Sonoran Desert 
Ecoregion portion of the pygmy-owl's range. Buffelgrass is prevalent 
and increasing throughout much of this portion of the pygmy-owl's 
range, leading to increased fire frequency in a system that is not 
adapted to fire (Schmid and Rogers 1988, p. 442; D'Antonio and Vitousek 
1992, p. 73; Burquez and Quintana 1994, p. 23; Halverson and Guertin 
2003, p. 13; Van Devender and Dimmit 2006, p. 5; Wied et al. 2020, pp. 
47-48). While a single fire in an area may or may not produce long-term 
reductions in plant cover or biomass, repeated wildfires in a given 
area are capable of ecosystem type-conversion from native desertscrub 
to nonnative annual grassland. These repeated fires may render the area 
unsuitable for pygmy-owls and other native wildlife due to the loss of 
trees and columnar cacti, and reduced diversity of cover and prey 
species (Brooks and Esque 2002, p. 336; Lyons et al. 2013, entire).
    Despite the current concentration of threats and their increasing 
effects to pygmy-owls and pygmy-owl habitat, the Sonoran Desert 
Ecoregion currently supports an abundance of pygmy-owls in the high 
hundreds and a moderate amount of intact, suitable vegetation. 
Consequently, these factors are currently maintaining an overall 
moderate level of resiliency in this portion of the range. 
Additionally, there is currently habitat connectivity with evidence of 
pygmy-owl movement among population groups, providing redundancy 
throughout the Sonoran Desert Ecoregion. Representation is also 
currently being maintained through pygmy-owl occupancy of a variety of 
vegetation types throughout the Sonoran Desert Ecoregion with gene flow 
among these population groups. However, under all three future 
scenarios, this portion of the range is expected to become less 
resilient due to continued habitat fragmentation and the effects of 
climate change on habitat conditions, resulting in a reduction of 
pygmy-owl abundance and occupancy. These deteriorating conditions are 
also anticipated to result in declines in redundancy and representation 
through the loss of population groups within the ecoregion.
    Although some threats to the cactus ferruginous pygmy-owl are 
concentrated in the Sonoran Desert Ecoregion, the best scientific and 
commercial data available do not indicate that the concentration of 
threats, or the subspecies' responses to the concentration of threats, 
results in the subspecies currently being in danger of extinction in 
that portion of its range. Given that pygmy-owls in the Sonoran Desert 
Ecoregion are maintaining populations in the high hundreds and the 
region currently supports moderate levels of intact, suitable 
vegetation, the subspecies is not currently in danger of extinction 
there. Therefore, the threats concentrated in the Sonoran Desert 
Ecoregion are such that pygmy-owls in this portion of the range are not 
currently in danger of extinction (endangered) but are likely to become 
endangered in the foreseeable future (threatened), and hence have the 
same status as the pygmy-owl throughout all of its range. This does not 
conflict with the courts' holdings in Desert Survivors v. U.S. 
Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 
2018) and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d 
946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we did 
not apply the aspects of the Final Policy, including the definition of 
``significant'' that those court decisions held to be invalid.
    Because the Arizona analysis unit is the only analysis unit 
currently in a low resiliency condition, we concluded that the 
subspecies' current biological status in this portion of the range may 
differ from the subspecies' biological status rangewide, and therefore 
evaluated whether this portion may be significant. Arizona is not 
ecologically significant because it contains the same habitat type as 
northern Sonora. Arizona is also not significant in size or importance 
to the species as a whole because it constitutes a very small portion 
of the species' range, comprising only 12 percent of the range, and 
containing a small proportion of the total number of pygmy-owls. 
Therefore, we do not find that the Arizona analysis unit does not 
constitute a significant portion of the range of the pygmy-owl.

Distinct Vertebrate Population Segment

    Under the Service's Policy Regarding the Recognition of Distinct 
Vertebrate

[[Page 46942]]

Population Segments Under the Endangered Species Act (61 FR 4722, 
February 7, 1996), three elements are considered in the decision 
concerning the establishment and classification of a possible DPS. 
These are applied similarly for additions to or removal from the 
Federal List of Endangered and Threatened Wildlife. These elements 
include:
    (1) The discreteness of a population segment in relation to the 
remainder of the species to which it belongs;
    (2) The significance of the population segment to the species to 
which it belongs; and
    (3) The population segment's conservation status in relation to the 
Act's standards for listing, delisting, or reclassification (i.e., is 
the population segment, when treated as if it were a species, 
endangered or threatened?).

Discreteness

    Under the DPS policy, a population segment of a vertebrate taxon 
may be considered discrete if it satisfies either one of these 
conditions:
    (1) It is markedly separated from other populations of the same 
taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation.
    (2) It is delimited by international governmental boundaries within 
which differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act.

Significance

    If a population segment is considered discrete under one or more of 
the conditions described in the Service's DPS policy, its biological 
and ecological significance will be considered in light of 
Congressional guidance that the authority to list DPSs be used 
``sparingly'' while encouraging the conservation of genetic diversity. 
In making this determination, we consider available scientific evidence 
of the discrete population segment's importance to the taxon to which 
it belongs. Since precise circumstances are likely to vary considerably 
from case to case, the DPS policy does not describe all the classes of 
information that might be used in determining the biological and 
ecological importance of a discrete population. However, the DPS policy 
describes four possible classes of information that provide evidence of 
a population segment's biological and ecological importance to the 
taxon to which it belongs. As specified in the DPS policy (61 FR 4722, 
February 7, 1996), this consideration of the population segment's 
significance may include, but is not limited to, the following:
    (1) Persistence of the discrete population segment in an ecological 
setting unusual or unique to the taxon;
    (2) Evidence that loss of the discrete population segment would 
result in a significant gap in the range of a taxon;
    (3) Evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range; or
    (4) Evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics. A 
population segment needs to satisfy only one of these conditions to be 
considered significant. Furthermore, other information may be used as 
appropriate to provide evidence for significance.

Analysis of Potential Distinct Population Segments

    The petitioners requested that we consider two potential DPSs of 
the pygmy-owl for protection under the Act, a Sonoran Desert DPS and an 
Arizona DPS. We considered potential DPS configurations that were not 
included in the petition in our 2011 12-month finding. Our conclusions 
regarding those additional DPS configurations have not changed since 
our 2011 12-month finding based on the best available information; 
therefore, they are not discussed further here.

Potential Eastern Population DPS

    In our 2011 finding (76 FR 61856), we found that the eastern 
population of the pygmy-owl was physically, genetically, and 
ecologically discrete from the remainder of the range. The eastern 
portion of the range represents approximately 32 percent of the range; 
thus, the physical loss of this geographic area would represent a 
significant gap in the range of the taxon. Therefore, the eastern 
population is discrete and significant under our DPS policy. However, 
the best available information indicates this DPS has the same status 
as the remainder of the range. The eastern population maintains a high 
abundance in northwestern Mexico. The pygmy-owl is not in danger of 
extinction now in the eastern population but is likely to become so in 
the foreseeable future, thus the eastern population has the same status 
as the subspecies throughout its range.

Potential Western Populations DPS

    In our 2011 finding (76 FR 61856), we also found that the western 
population of the pygmy-owl was physically, genetically, and 
ecologically discrete from the remainder of the range. The western 
portion of the range represents approximately 68 percent of the range; 
thus, the physical loss of this geographic area would represent a 
significant gap in the range of the taxon. Therefore, the western 
population is discrete and significant under our DPS policy. However, 
the best available information indicates this DPS has the same status 
as the remainder of the range. The western population of the pygmy-owl 
maintains the highest abundance of pygmy-owls throughout the range. The 
pygmy-owl is not in danger of extinction now in the western population 
but is likely to become so in the foreseeable future, thus this 
population has the same status as the subspecies throughout its range. 
The DPS policy, published on February 7, 1996 (61 FR 4722), is intended 
for cases where only a segment of a vertebrate species' range needs the 
protections of the Act, rather than the entire range of a species, or 
when segments of a vertebrate species range differ in status between 
endangered and threatened. Although the eastern and western pygmy-owl 
DPSs are disjunct and somewhat geographically isolated from one 
another, they include the entire distribution of the pygmy-owl and the 
status of the species is the same for both DPSs and the subspecies 
overall. In accordance with the DPS policy, our authority to list DPSs 
is to be exercised sparingly. Thus, listing of the entire subspecies is 
appropriate in this case.

Potential Sonoran Desert DPS

    None of the boundaries of the petitioner's Sonoran Desert DPS 
include an international border or boundary (CBD and DOW 2007, pp. 4-
6). Therefore, the petitioned DPS must meet the first condition for 
discreteness in order to be considered a valid DPS, because it does not 
meet the second condition. As discussed in detail in our 2011 12-month 
finding (76 FR 61856, October 5, 2011), there are no obvious physical, 
geographic, ecological, or genetic barriers that separate the 
petitioned Sonoran Desert DPS from the rest of the pygmy-owl's range to 
the south. Additional genetic information we have received since our 
2011 12-month finding has continued to show genetic connectivity 
between the petitioned Sonoran Desert DPS and the rest of the pygmy-
owl's population to the south and that genetic

[[Page 46943]]

differentiation amongst pygmy-owls sampled results from isolation by 
distance, rather than geographic isolation (Cobbold et al. 2022b, 
entire).
    The Sonoran Desert Ecoregion may differ ecologically from the 
remainder of the areas within its range. However, the best available 
scientific and commercial data do not indicate that this ecological 
difference has resulted in any morphological, physiological, or genetic 
differentiation within pygmy-owl populations in the Sonoran Desert that 
would indicate a marked separation from other populations of pygmy-owls 
(Proudfoot et al. 2006a, entire; 2006b, entire; Cobbold et al. 2022b, 
entire).
    Environmental characteristics within the Sonoran Desert have likely 
resulted in the reduced abundance and densities of pygmy-owls found in 
this area (Abbate et al. 1999, entire; Abbate et al. 2000, entire; 
Flesch 2003, pp. 36-92), and these reductions continue (Flesch et al. 
2017, entire; Cobbold et al. 2021, entire). However, this situation 
does not appear to have resulted in any physical differentiation, at 
least as anecdotally observed, from adjacent pygmy-owl populations. We 
find that there is no evidence that the Sonoran Desert population of 
pygmy-owl is markedly separated in any way from the remainder of the 
taxon. Therefore, we determine, based on a review of the best available 
information, that the petitioned Sonoran Desert DPS of the pygmy-owl 
does not meet the discreteness conditions of the 1996 DPS policy. As 
such, this population segment does not qualify as a DPS under our 
policy and is not a listable entity under the Act. The DPS policy 
indicates that significance should be analyzed only if a population 
segment has been identified as discrete. Because we found that the 
Sonoran Desert population segment did not meet the discreteness element 
and, therefore, does not qualify as a DPS under the Service's DPS 
policy, we did not conduct an evaluation of significance. Additionally, 
as discussed in Status Throughout a Significant Portion of Its Range, 
above, this portion of the range is not in danger of extinction now, 
but likely to become so in the foreseeable future and therefore has the 
same status as the rest of the range.

Potential Arizona DPS

    Because we are evaluating this petitioned entity based on the 
currently accepted taxonomic classification of the pygmy-owl, the taxon 
considered in this finding is the same as for our 1997 listing of the 
pygmy-owl (62 FR 10730, March 10, 1997). Consequently, the petitioned 
Arizona DPS is exactly the same DPS configuration that was the subject 
of litigation and, ultimately, the same DPS configuration that the 
Service removed from the Federal List of Endangered and Threatened 
Wildlife in 2006 (71 FR 19452, April 14, 2006). That final rule 
presents our analysis showing that, while the discreteness criteria for 
the DPS were met, we concluded that this DPS was significant to the 
taxon as a whole. Our analysis in the final rule to delist the pygmy-
owl showed that the then-listed Arizona DPS of the pygmy-owl was not 
markedly different in its genetic characteristics from pygmy-owls in 
northern Sonora, Mexico, and did not occur in a unique ecological 
setting; nor would loss of the DPS result in a significant gap in the 
range of the taxon. None of the scientific information compiled since 
the delisting alters the conclusions made in that final rule. 
Therefore, we determine, based on a review of the best available 
information, that the petitioned Arizona DPS of the pygmy-owl does not 
meet the significance conditions of the 1996 DPS policy. Therefore, 
this population segment does not qualify as a DPS under our policy and 
is not a listable entity under the Act.

Determination of Status

    Our review of the best scientific and commercial data available 
indicates that the cactus ferruginous pygmy-owl meets the definition of 
a threatened species. Therefore, we are listing the cactus ferruginous 
pygmy-owl as a threatened species throughout its range in accordance 
with sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public within 30 days of a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting'') and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Recovery teams (composed of 
species experts, Federal and State agencies, nongovernmental 
organizations, and stakeholders) are often established to develop 
recovery plans. When completed, the recovery outline, draft recovery 
plan, and the final recovery plan for the cactus ferruginous pygmy-owl 
will be available on our website (https://www.fws.gov/program/endangered-species), or from our Arizona Ecological Services Office 
(see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Once a species is listed, funding for recovery actions become 
available from a variety of sources, including Federal

[[Page 46944]]

budgets, State programs, and cost-share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the States of Arizona 
and Texas will be eligible for Federal funds to implement management 
actions that promote the protection or recovery of the cactus 
ferruginous pygmy-owl. Information on our grant programs that are 
available to aid species recovery can be found at: https://www.fws.gov/service/financial-assistance.
    Section 8(a) of the Act (16 U.S.C. 1537(a)) authorizes the 
provision of limited financial assistance for the development and 
management of programs that the Secretary of the Interior determines to 
be necessary or useful for the conservation of endangered or threatened 
species in foreign countries. Sections 8(b) and 8(c) of the Act (16 
U.S.C. 1537(b) and (c)) authorize the Secretary to encourage 
conservation programs for foreign listed species, and to provide 
assistance for such programs, in the form of personnel and the training 
of personnel.
    Please let us know if you are interested in participating in 
recovery efforts for the cactus ferruginous pygmy-owl. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is listed as an endangered or 
threatened species and with respect to its critical habitat, if any is 
designated. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) 
of the Act requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of any endangered or threatened species or destroy 
or adversely modify its critical habitat. If a Federal action may 
affect a listed species or its critical habitat, the responsible 
Federal agency (action agency) must enter into consultation with us.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on Federal lands administered by the Department of the 
Interior's U.S. Fish and Wildlife Service, Bureau of Land Management, 
and National Park Service (Organ Pipe Cactus National Monument and 
Ironwood Forest National Monument); the Department of Defense's Barry 
M. Goldwater Air Force Range and the U.S. Army Corps of Engineers (for 
issuance of section 404 Clean Water permits); the U.S. Department of 
Agriculture's U.S. Forest Service, Natural Resources Conservation 
Service, and Farm Service Agency; and construction and maintenance of 
roads or highways by the Federal Highway Administration.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a final listing 
on proposed and ongoing activities within the range of a listed 
species. The discussion below regarding protective regulations under 
section 4(d) of the Act complies with our policy.

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

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened species. The U.S. Supreme Court has noted that 
statutory language like ``necessary and advisable'' demonstrates a 
large degree of deference to the agency (see Webster v. Doe, 486 U.S. 
592 (1988)). Conservation is defined in the Act to mean the use of all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Additionally, the 
second sentence of section 4(d) of the Act states that the Secretary 
may by regulation prohibit with respect to any threatened species any 
act prohibited under section 9(a)(1), in the case of fish or wildlife, 
or section 9(a)(2), in the case of plants. Thus, the combination of the 
two sentences of section 4(d) provides the Secretary with wide latitude 
of discretion to select and promulgate appropriate regulations tailored 
to the specific conservation needs of the threatened species. The 
second sentence grants particularly broad discretion to the Service 
when adopting one or more of the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council 
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the Act was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to [her] with regard to the permitted activities for those species. 
[She] may, for example, permit taking, but not importation of such 
species, or [she] may choose to forbid both taking and importation but 
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    Exercising this authority under section 4(d), we have developed a 
final rule that is designed to address the cactus ferruginous pygmy-
owl's specific threats and conservation needs. Although the statute 
does not require us to make a ``necessary and advisable'' finding with 
respect to the adoption of specific prohibitions under section 9, we 
find that this final rule as a whole satisfies the requirement in 
section 4(d) of the Act to issue regulations deemed necessary and 
advisable to provide for the conservation of the cactus ferruginous 
pygmy-owl. The provisions of this 4(d) rule will promote conservation 
of the cactus ferruginous pygmy-owl by encouraging survey and 
monitoring to increase our understanding of the abundance and 
distribution of pygmy-owls, by facilitating habitat restoration and 
enhancement projects that will benefit the cactus ferruginous pygmy-
owl, and by increasing public awareness and support for the 
conservation of the pygmy-owl. The provisions of this rule are one of 
many tools that we will use to promote the conservation of the cactus 
ferruginous pygmy-owl.
    As mentioned previously in Available Conservation Measures, section 
7(a)(2) of the Act requires Federal agencies, including the Service, to 
ensure that any action they fund, authorize, or carry out is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of

[[Page 46945]]

designated critical habitat of such species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act (such as permits associated with habitat conservation plans 
or safe harbor agreements) or that involve some other Federal action 
(such as funding from the Federal Highway Administration, Federal 
Aviation Administration, or the Federal Emergency Management Agency). 
Federal actions not affecting listed species or critical habitat--and 
actions on State, Tribal, local, or private lands that are not 
federally funded, authorized, or carried out by a Federal agency--do 
not require section 7 consultation.
    This obligation does not change in any way for a threatened species 
with a species-specific 4(d) rule. Actions that result in a 
determination by a Federal agency of ``not likely to adversely affect'' 
continue to require the Service's written concurrence and actions that 
are ``likely to adversely affect'' a species require formal 
consultation and the formulation of a biological opinion.

Provisions of the 4(d) Rule

    As discussed previously in Summary of Biological Status and 
Threats, we have concluded that the cactus ferruginous pygmy-owl is 
likely to become in danger of extinction within the foreseeable future 
primarily due to habitat loss and fragmentation (Factor A) and climate 
change and climate conditions (Factor E).
    The protective regulations for the pygmy-owl incorporate all 
prohibitions from section 9(a)(1) of the Act, codified at 50 CFR 17.21, 
that apply to endangered species. Putting these prohibitions in place 
will help to prevent further declines in cactus ferruginous pygmy-owl 
populations, preserve the subspecies' remaining populations and 
habitat, and reduce the negative effects from other ongoing or future 
threats. This 4(d) rule will provide for the conservation of the cactus 
ferruginous pygmy-owl by prohibiting the following activities, except 
as otherwise authorized or permitted: importing or exporting; take; 
possession and other acts with unlawfully taken specimens; delivering, 
receiving, transporting, or shipping in interstate or foreign commerce 
in the course of commercial activity; or selling or offering for sale 
in interstate or foreign commerce.
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Exceptions 
to the prohibition on take include all of the general exceptions to the 
prohibition against take of endangered wildlife as set forth in 50 CFR 
17.21 and certain other specific activities that we propose for 
exception, as described below. Therefore, we prohibit take of the 
cactus ferruginous pygmy-owl, except for take resulting from those 
actions and activities specifically excepted by the 4(d) rule.
    The 4(d) rule provides for the conservation of the subspecies by 
allowing exceptions that incentivize conservation actions or that, 
while they may have some minimal level of take of the cactus 
ferruginous pygmy-owl, are not expected to rise to the level that would 
have a negative impact (i.e., would have only de minimis impacts) on 
the subspecies' conservation. In our proposed rule to list the pygmy-
owl as threatened and its associated 4(d) rule, we considered a number 
of activities that could potentially be appropriate for our 
consideration in the 4(d) rule, including the need for compatibly 
managed grazing activities that result in the vegetation structure and 
composition needed to support the cactus ferruginous pygmy-owl.
    Livestock grazing is not inherently detrimental to the cactus 
ferruginous pygmy-owl, provided that grazing management results in a 
plant community with species and structural diversity suitable for the 
species. Therefore, during the public comment period, we encouraged 
public comments on the issue of properly managed grazing and the best 
approach to address livestock grazing and management with the tools 
available. Based on the comments we received, and our analysis in the 
proposed listing rule, we determined that proper grazing management 
best occurs on the local level, and thus broad determinations within 
this rule would not be beneficial to the subspecies or local land 
managers. We considered promoting conservation of the cactus 
ferruginous pygmy-owl in the 4(d) rule by encouraging management of 
vegetation communities in ways that support both long-term viability of 
livestock enterprises and concurrent conservation of pygmy-owls. 
However, we determined that other mechanisms under our authorities, 
such as section 7 consultations for grazing permits with a Federal 
nexus, would be more appropriate to support conservation benefits than 
provisions in this 4(d) rule. Therefore, livestock grazing is not 
excepted under this rule.
    As discussed above under Summary of Biological Status and Threats, 
ongoing climate change, particularly increases in drought conditions, 
and habitat loss and fragmentation are affecting the status of the 
cactus ferruginous pygmy-owl. Education and outreach related to cactus 
ferruginous pygmy-owl recovery, specific survey and monitoring 
activities, and habitat restoration and habitat enhancement projects 
have the potential to benefit the cactus ferruginous pygmy-owl and 
mitigate some of these threats. Accordingly, this 4(d) rule addresses 
activities to facilitate conservation and management of the cactus 
ferruginous pygmy-owl where the activities currently occur and may 
occur in the future by excepting the activities from the Act's take 
prohibition under certain specific conditions. The exceptions to take 
prohibitions included in this 4(d) rule are education and outreach, 
specific survey and monitoring activities, and habitat restoration and 
enhancement (described below) that are expected to have negligible 
impacts to the cactus ferruginous pygmy-owl and its habitat and will 
benefit the conservation of the pygmy-owl. These activities are 
intended to improve our understanding of the abundance and distribution 
of pygmy-owls, increase management flexibility, and encourage support 
for conservation of, and habitat restoration or enhancement for, the 
cactus ferruginous pygmy-owl.

Education and Outreach

    Education and outreach are a vital part of cactus ferruginous 
pygmy-owl recovery and progress towards achieving and maintaining 
population viability of cactus ferruginous pygmy-owls. This 4(d) rule 
excepts from take prohibitions those cactus ferruginous pygmy-owl 
education and outreach activities that use live pygmy-owls, or parts, 
and are undertaken for the purposes of increasing public awareness of 
cactus ferruginous pygmy-owl biology, ecology, or recovery needs, as 
well as of the positive effects of having pygmy-owls as a viable part 
of the local ecosystems on the local society, economy, and quality of 
life for communities. Such educational

[[Page 46946]]

activities may include use of educational captive-reared cactus 
ferruginous pygmy-owls, pygmy-owl skins, parts of pygmy-owls, as well 
as zoological exhibition. For such activities, raptors are typically 
covered by a permit issued under 50 CFR part 21, which governs species 
protected under the MBTA. To remove redundant permitting, this 4(d) 
rule will cover incidental take resulting from educational and outreach 
activities, including zoological exhibition, provided the researcher 
already holds an appropriate and valid MBTA permit issued under 50 CFR 
part 21. These activities can increase public awareness, engagement, 
and support for cactus ferruginous pygmy-owl conservation and recovery.
    Education and outreach activities must be coordinated with the 
Service prior to commencing those activities. Coordination should occur 
no later than 60 calendar days prior to the initiation of the proposed 
activity, and this coordination can occur by contacting the Service's 
Arizona Ecological Services office. Coordination can occur in person, 
by phone, or through written communications. Written documentation of 
coordination with the Service should be maintained by the project 
proponent for education and outreach activities. Education and outreach 
activities covered by this 4(d) rule would have to be consistent with 
an existing designated recovery program, such as a recovery outline, 
final recovery plan, or recovery implementation schedule, and benefit 
cactus ferruginous pygmy-owl conservation through increased public 
awareness and engagement, which supports cactus ferruginous pygmy-owl 
recovery. Education and outreach qualifying under this exception 
(activities undertaken by those already possessing an MBTA permit as 
described above) would not require a permit issued under section 10(a) 
of the Act.

Specific Survey and Monitoring Activities

    In our proposed rule, we asked the public and State agencies to 
provide comments on using the State permitting process, if required, in 
this 4(d) rule as the basis for an exception to the prohibitions on 
take for certain pygmy-owl surveying and monitoring activities. We 
consider surveying and monitoring activities necessary to understand 
and implement cactus ferruginous pygmy-owl conservation and recovery. 
We lack data on the current abundance, density, and distribution of the 
cactus ferruginous pygmy-owl across its geographic range in both the 
United States and Mexico. We also lack comprehensive data on the 
productivity, survival, mortality, and other natural history 
characteristics of the cactus ferruginous pygmy-owl. Such data have 
been gathered historically, but only in localized areas and primarily 
only in the United States and northern Sonora. Where we have data on 
occurrence, abundance, density, and natural history variables, it 
allows us to better understand the status of the cactus ferruginous 
pygmy-owl and what actions are necessary to conserve population groups 
and enhance status and viability. However, surveying and monitoring 
activities can result in short-term negative effects to cactus 
ferruginous pygmy-owls and, potentially, the take of individuals and 
nest sites. Take in the form of harm, such as disturbance, could 
potentially occur as a result of surveying and monitoring, but would be 
very unlikely if conducted following the approved protocol. We do not 
anticipate the direct fatality of any pygmy-owls as a result of these 
excepted activities. We conclude that any potential indirect take 
resulting from these activities will be inconsequential to the 
conservation and recovery of the pygmy-owl.
    We want to encourage more comprehensive and widespread surveying 
and monitoring activities across the geographic range of the cactus 
ferruginous pygmy-owl because of the benefit to pygmy-owl conservation. 
Such benefits include the ability to direct conservation activities to 
those areas where they can be most effective, assessing the success of 
conservation activities, avoiding impacts to occupied areas, and 
identifying and understanding the effects of threats to pygmy-owls and 
their habitat. We have determined that the benefits gained by 
implementing surveying and monitoring activities that do not require 
handling of pygmy-owls and use only call playback and visual 
observation methods, and that are being used to implement scientific 
studies or regulatory compliance to gain needed data for appropriated 
conservation and recovery of the pygmy-owl, outweigh the potential, 
short-term impacts to pygmy-owls.
    In response to comments received by the State wildlife agencies of 
Arizona and Texas, we held follow up discussions with both State 
agencies. From these discussions, we determined that the existing 
permitting program in Arizona is conducive to supporting our inclusion 
of an exception to the take prohibitions under a 4(d) rule for certain 
surveying and monitoring activities covered by the AGFD permitting 
process. The TPWD issues permits only for activities that require 
handling of the animal. Thus, their permitting process is not conducive 
to an exception to the take prohibitions related to surveying and 
monitoring as we described them in the proposed listing rule and 
associated 4(d) rule (call playback and visual monitoring). 
Consequently, the exceptions for certain surveying and monitoring 
activities under this 4(d) rule apply only to activities in the State 
of Arizona.
    This exception recognizes AGFD's authority to issue a permit to 
conduct call broadcast surveys and monitoring and nest monitoring for 
listed species. This State permitting would ensure oversight for 
surveyor and monitor qualifications, as well as data submission to the 
State agency. The AGFD permitting process will ensure that the impacts 
of the excepted activities are avoided or minimized. The Service will 
access this data through the AGFD's Heritage Data Management System for 
use within Service programs. Thus, an exception to the prohibitions of 
take is granted under this 4(d) rule if the surveyors and monitors 
possessed a valid AGFD scientific activity license that authorizes the 
appropriate survey and monitoring activities. The excepted survey and 
monitoring activities include broadcast call surveys using conspecific 
calls following the approved Service pygmy-owl survey protocol 
(available in early 2023), visual monitoring that does not occur at a 
nest site, and visual monitoring at nest sites if included on the AGFD 
scientific activity license. This exception would not cover any 
activities that involve the handling of pygmy-owls. The surveying and 
monitoring activities excepted under this 4(d) rule must be associated 
with a legitimate scientific project or regulatory compliance activity. 
Call playback methods for recreational use are not excepted under this 
4(d) rule and are subject to section 9 take prohibitions under the Act. 
In Arizona, a Federal section 10(a)(1)(A) permit is not required for 
the excepted surveying and monitoring activities described above. In 
Texas, these activities would require a Federal section 10(a)(1)(A) 
permit.
    Because research that involves the capture, handling, marking, 
humane care, tissue sample collection, etc., of pygmy-owls may result 
in the direct take of cactus ferruginous pygmy-owls, we have determined 
that Federal oversight of these activities being conducted on this 
federally protected species are best administered through our section 
10 permitting process (under the Act's section 10(a)(1)(A)). This

[[Page 46947]]

permitting process allows us to assess the appropriateness of the 
proposed research projects and activities with regard to promoting the 
conservation of a listed species; evaluate the proposed research 
activities in relation to the requirements of the Act; reduce the 
potential for redundancy of effort and overlapping effects to cactus 
ferruginous pygmy-owls; and facilitate the opportunity to receive, 
analyze, and incorporate the most current information into conservation 
and recovery actions.

Habitat Restoration and Enhancement

    Incidental take resulting from habitat restoration or enhancement 
projects within the geographic range of the pygmy-owl that improve the 
viability of cactus ferruginous pygmy-owl populations and population 
groups, and have been coordinated and approved by the Service, is 
excepted from the take prohibitions under this section 4(d) rule. 
Habitat restoration and enhancement projects are needed to increase 
nest site (cavity) availability; improve habitat connectivity among 
cactus ferruginous pygmy-owl population groups; increase prey 
availability; improve vegetation structure and health and overall 
ecosystem health and sustainability within the range of the pygmy-owl; 
and decrease nonnative species, watershed degradation and erosion, and 
habitat loss or reduction due to extreme weather events and wildfire.
    In order to be excepted from take prohibitions, the results of such 
actions must not rise to the level that would have a negative impact 
(i.e., would have only de minimis impacts) on the species' 
conservation. Although activities such as roadside vegetation 
management and removing trees for fuels management may indirectly 
benefit pygmy-owls or pygmy-owl habitat through the reduction of fires, 
these activities are highly dependent upon site- and project-specific 
conditions and have the potential to cause significant negative effects 
on pygmy-owls and their habitats. A broad exception under a section 
4(d) rule for such activities cannot account for these project-specific 
conditions that would need to be considered to minimize any potential 
negative effects on the pygmy-owl. Similarly, though activities already 
covered under existing safe harbor agreements for other listed species 
may provide conservation benefits to the pygmy-owl, a broad exception 
to such actions would prevent consideration of any effects on the 
pygmy-owl and its habitat. Therefore, the take exceptions under this 
4(d) rule do not apply to roadway vegetation management, fuels 
management, safe harbor agreement activities for other species, or 
other activities as described below that involve removal of trees, 
large shrubs, and other woody vegetation.
    This 4(d) rule excepts from take prohibitions those habitat 
restoration or enhancement activities that have improving cactus 
ferruginous pygmy-owl habitat conditions as their primary purpose or 
that directly improve or benefit pygmy-owl habitat conditions (even if 
the purpose of the activity is not to restore or enhance pygmy-owl 
habitat) across the subspecies' geographical range. Specific habitat 
restoration or enhancement actions that improve pygmy-owl habitat 
conditions include the following: nest box installation; establishment 
or protection of nesting substrates (large trees or columnar cacti) to 
increase the availability of nest cavities; restoration or enhancement 
of native vegetation structure and species; control or eradication of 
invasive, nonnative species; riparian enhancement or restoration; water 
developments; watershed improvements; improved habitat connectivity; 
and fire management.
    Prescribed fire within Sonoran Desert vegetation communities is not 
excepted under this 4(d) rule. Fire can be an effective tool in 
maintaining ecosystem health, which is beneficial to the cactus 
ferruginous pygmy-owl. However, Sonoran Desert vegetation communities 
are not fire-adapted, and the use of fire in these vegetation 
communities must be carefully implemented or important pygmy-owl 
habitat elements can be lost or altered. Therefore, because of the 
risks associated with the loss or alteration of pygmy-owl habitat, the 
use of fire in Sonoran Desert vegetation communities is not excepted 
from the take prohibitions under this 4(d) rule. We acknowledge that 
some areas cannot discretely be identified as Sonoran Desert 
vegetation, such as transition areas from grassland valleys to bajadas 
that support Sonoran Desert vegetation. In these transition areas, 
prescribed fire can be an important tool to maintain ecosystem health 
and viability. Therefore, during the coordination and approval process 
with the Service (described below), these transition areas can be 
discussed, and a determination made as to the appropriateness and 
benefit of prescribed burning in these areas and whether it is 
appropriate to except the project under this 4(d) rule. Criteria that 
will be considered include the objective of the prescribed burn, 
presence of saguaros (either mature or young age classes), presence of 
tree species that are not fire adapted, the size and vegetation 
composition of drainages within the prescribed burn area, season of 
burn, and anticipated severity of the burn.
    Woody vegetation communities provide the most important pygmy-owl 
habitat factors, particularly woodland tree canopy cover. Projects and 
actions that remove woody vegetation or woodland tree cover would 
typically reduce the quality of habitat for pygmy-owls. Such actions 
may reduce vegetation structure and cover diversity, pygmy-owl prey 
diversity, and important predator avoidance and thermoregulatory cover 
for the pygmy-owl. Therefore, any action that would result in more than 
a minimal reduction or removal of tree cover (as determined during the 
coordination with the Service described below), including along 
roadways or for fuels management, is not excepted from take under the 
4(d) rule. The extent of woody vegetation or tree removal that occurs 
during the implementation of projects that can be excepted under this 
4(d) rule will generally be determined during project-specific 
coordination. However, as an example of the level of removal that the 
Service may consider as minimal, we have historically used a level of 
between 20 percent and 30 percent reduction in tree cover as 
maintaining habitat values for the pygmy-owl. Typically, in order to be 
excepted under this 4(d) rule, projects or activities will not have 
woody vegetation removal as the primary objective of the action.
    We acknowledge that woody vegetation invasion within certain 
vegetation communities, such as native grassland communities, can be 
detrimental to the health and viability of those communities. A 
healthy, functioning ecosystem that can support listed species is one 
of the primary objectives of the Act. In these cases, management of 
woody vegetation can improve the health and function of these 
vegetation communities and would benefit pygmy-owl conservation. If the 
objective of a vegetation management activity (including brush 
management or mesquite control) is to improve ecosystem health, 
function, and sustainability, we can coordinate with project proponents 
to determine if the specifics of the vegetation management project will 
allow the project to be excepted from take under this 4(d) rule (see 
information below on coordination and approval for activities included 
in this 4(d) rule). Criteria that will be considered when reviewing 
habitat restoration projects may include the objective of the 
vegetation

[[Page 46948]]

management activity, presence of saguaros (either mature or young age 
classes), proximity to and the type of drainages within the proposed 
activity area and the inclusion of protection measures to avoid and 
protect trees and other riparian vegetation along drainages, and the 
methods of vegetation control to be used.
    Actions that promote the use of, or encourage the growth of, 
nonnative vegetation species are not excepted in the 4(d) rule. 
Nonnative vegetation species can outcompete and replace native species 
that provide important habitat factors for the pygmy-owl. This outcome 
is particularly true when nonnative species form monocultures, 
resulting in low diversity and dense ground cover that alters natural 
fire regimes and reduces pygmy-owl prey diversity and availability. 
Conversely, activities related to the management and control of 
nonnative, invasive species have a direct benefit to pygmy-owls through 
the reduction of competition, promotion of native species and 
biodiversity, enhancement of prey species, and the maintenance of 
natural fire regimes. Therefore, activities related to the management, 
control, or removal of nonnative, invasive species may fall under the 
habitat restoration and enhancement exception of this 4(d) rule, if 
coordination with the Service occurs as described for habitat 
restoration and enhancement activities in this 4(d) rule and those 
activities are implemented in a way that avoids tree removal, avoids 
impacts to nest substrates (columnar cacti and large trees), uses low-
impact treatment methods, and considers seasonal disturbance issues 
(minimizes impacts during nesting and dispersal seasons).
    During the public comment period, we received a request to include 
development activities in the 4(d) rule. Although we acknowledge the 
potential benefits of providing specific guidance for landowners 
relating to development activities, the unique settings and 
circumstances in which these projects occur limit our ability to 
develop broad guidance applicable to all projects across the range of 
the pygmy-owl. Furthermore, development, and subsequent habitat loss 
and fragmentation, are major threats to the pygmy-owl and its habitat. 
Therefore, development activities are not excepted under this 4(d) 
rule.
    In order to fall under the activities included under the habitat 
restoration or enhancement take exception in the 4(d) rule, persons 
implementing cactus ferruginous pygmy-owl habitat enhancement and 
restoration activities must coordinate with the Service prior to 
commencing work and receive approval. If there is doubt about whether 
or not a project or activity would be excepted under this 4(d) rule, 
please contact the Service's Arizona Ecological Services Field Office. 
Coordination should occur no later than 60 calendar days before the 
desired start date of the proposed activity and can occur by contacting 
that office. Coordination can occur in person, by phone, or through 
written communications. Written documentation of coordination with the 
Service should be maintained by the project proponent for the habitat 
restoration or enhancement activities. Prior to approving proposed 
activities, the Service will coordinate with the appropriate affected 
entities (land management agencies, Tribal entities, private 
landowners, etc.) and identify any concerns, but also opportunities for 
partnerships where proximate land managers can work together to 
effectively treat greater areas of pygmy-owl habitat.
    For all forms of allowable take in the 4(d) rule, reasonable care 
will be practiced to minimize the impacts from those actions. 
Reasonable care means limiting the impacts to cactus ferruginous pygmy-
owl individuals and populations by complying with all applicable 
Federal, State, and Tribal regulations for the activity in question; 
using methods and techniques that result in the least harm, injury, or 
death, as feasible; undertaking activities at the least impactful times 
(e.g., conducting activities that might impact nesting cactus 
ferruginous pygmy-owls or nesting habitat only after nesting is 
concluded for the year) and locations, as feasible; procuring and 
implementing technical assistance from a qualified biologist on 
projects regarding all methods prior to the implementation of those 
methods; minimizing the number of individuals disturbed in the existing 
wild population; implementing best management practices to ensure no 
disease or parasites are introduced or spread in pygmy-owl populations, 
including the proper use of quarantine and health evaluations; and 
preserving the genetic diversity of wild populations.

Permitting and Other Regulations To Cover Take

    Despite these prohibitions regarding threatened species, we may 
under certain circumstances issue permits to carry out one or more 
otherwise-prohibited activities, including those described above. The 
regulations that govern permits for threatened wildlife state that the 
Director may issue a permit authorizing any activity otherwise 
prohibited with regard to threatened species. These include permits 
issued for the following purposes: for scientific purposes, to enhance 
propagation or survival, for economic hardship, for incidental taking, 
or for special purposes consistent with the purposes of the Act (50 CFR 
17.32). The statute also contains certain exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist us in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that we must cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. Therefore, any qualified employee or agent of a 
State conservation agency that is a party to a cooperative agreement 
with the Service in accordance with section 6(c) of the Act, who is 
designated by his or her agency for such purposes, will be able to 
conduct activities designed to conserve the cactus ferruginous pygmy-
owl that may result in otherwise prohibited take without additional 
authorization.
    Nothing in this 4(d) rule will change in any way the recovery 
planning provisions of section 4(f) of the Act, the consultation 
requirements under section 7 of the Act, or our ability to enter into 
partnerships for the management and protection of the cactus 
ferruginous pygmy-owl. However, interagency cooperation may be further 
streamlined through planned programmatic consultations for the species 
between us and other Federal agencies, where appropriate.

III. Critical Habitat

Background

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that we designate critical habitat at the time a 
species is determined to be an endangered or threatened species, to the 
maximum extent prudent and determinable. In the December 22, 2021 (86 
FR 72547) proposed listing rule, we determined that designation of 
critical habitat was

[[Page 46949]]

prudent but not determinable because specific information needed to 
analyze the impacts of designation was lacking. We are still in the 
process of assessing this information. We plan to publish a proposed 
rule to designate critical habitat for the cactus ferruginous pygmy-owl 
in the near future.

Required Determinations

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations and species-specific protective regulations 
promulgated concurrently with a decision to list or reclassify a 
species as threatened. The courts have upheld this position (e.g., 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical 
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife 
Service., 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) 
rule)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that Tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes.
    We contacted the Ak Chin Indian Community, Apache Tribe of 
Oklahoma, Cocopah Indian Tribe, Comanche Nation, Gila River Indian 
Community, Hopi Tribe, Pascua Yaqui Tribe, San Carlos Apache Tribe, 
Salt River Pima-Maricopa Indian Community, Tohono O'odham Nation, 
Tonkawa Tribe of Indians, White Mountain Apache Tribe, Wichita and 
Affiliated Tribes, and Yavapai Apache Nation regarding the SSA process 
by mail and invited them to provide information and comments to inform 
the SSA. Our interactions with these Tribes are part of our government-
to-government consultation with Tribes regarding the pygmy-owl and the 
Act. The Tohono O'odham Nation was invited to participate as a member 
of the SSA team because they have historically participated on issues 
related to the cactus ferruginous pygmy-owl and they have extensive 
acreage of pygmy-owl habitat. They accepted the invitation and have 
participated in development of the SSA, as well as with pygmy-owl 
surveys and monitoring. We will continue to work with Tribal entities 
during the rulemaking process.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov in Docket No. FWS-R2-ES-
2021-0098 and upon request from the Arizona Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.


0
2. In Sec.  17.11, amend paragraph (h) by adding an entry for ``Pygmy-
owl, cactus ferruginous'' to the List of Endangered and Threatened 
Wildlife in alphabetical order under Birds to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
           Common name              Scientific name        Where listed          Status         and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
                                                      Birds
 
                                                  * * * * * * *
Pygmy-owl, cactus ferruginous...  Glaucidium           Wherever found.....               T   88 FR [Federal
                                   brasilianum                                                Register page
                                   cactorum.                                                  where the document
                                                                                              begins], 7/20/
                                                                                              2023; 50 CFR
                                                                                              17.41(l).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.41 by adding paragraph (l) to read as follows:


Sec.  17.41  Special rules--birds.

* * * * *
    (l) Cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum). 
(1) Prohibitions. The following prohibitions that apply to endangered 
wildlife also apply to the cactus ferruginous pygmy-owl. Except as 
provided under paragraphs (l)(2) and (3) of this section and Sec. Sec.  
17.4, 17.5, and 17.7, it is unlawful for any person subject to the 
jurisdiction of the United States to commit, to attempt to commit, to 
solicit another to commit, or cause to be committed, any of the 
following acts in regard to this subspecies:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.

[[Page 46950]]

    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) General exceptions from prohibitions. In regard to this 
subspecies, you may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (4) for 
endangered wildlife, and (c)(6) and (7) for endangered migratory birds.
    (iii) Take as set forth at Sec.  17.31(b).
    (iv) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife and 
(d)(3) and (4) for endangered migratory birds.
    (3) Exceptions from prohibitions for specific types of incidental 
take. You may take cactus ferruginous pygmy-owl while carrying out the 
following legally conducted activities in accordance with this 
paragraph (l)(3):
    (i) Educational and outreach activities that have been coordinated 
with the Service no later than 60 calendar days prior to the initiation 
of the proposed activity, provided the researcher already holds an 
appropriate, valid permit issued under part 21 of this chapter, which 
governs species protected under the Migratory Bird Treaty Act, for 
educational activities involving the use of live pygmy-owls, zoological 
exhibitions, pygmy-owl skins, or parts of pygmy-owls or other raptors.
    (ii) Specific surveying and monitoring activities within the State 
of Arizona that do not include handling of pygmy-owls (e.g., call 
playback, visual observation, collection of feathers in nests or on the 
ground, and camera monitoring) and only if they are conducted under a 
valid scientific activity license issued by the Arizona Game and Fish 
Department.
    (A) Data collected must be submitted to the Arizona Game and Fish 
Department for inclusion in their Heritage Data Management System.
    (B) Call playback surveys and monitoring must follow the most 
current, Service-approved protocol.
    (C) Surveying and monitoring activities must be associated with a 
legitimate scientific project or regulatory compliance activity.
    (iii) Habitat restoration and enhancement activities and projects 
that are coordinated with and approved by the Service no later than 60 
calendar days prior to the initiation of the proposed activity.
    (A) These activities and projects may include activities that 
enhance cactus ferruginous pygmy-owl habitat conditions; improve 
ecosystem health and sustainability within the range of the pygmy-owl; 
improve habitat connectivity; increase availability of nest cavities; 
increase prey availability; reduce or control invasive, nonnative plant 
species; and enhance native plant communities, particularly woodland 
riparian communities.
    (B) These activities and projects do not include prescribed fire 
within Sonoran Desert vegetation communities (unless these activities 
and projects occur in vegetation community transition areas and are 
coordinated with and approved by the Service), actions that would 
result in more than a minimal reduction or removal of tree cover (as 
determined through coordination with and approved by the Service and 
generally involving no more than a 30 percent reduction in tree cover) 
such as fuels management or roadway vegetation management, land 
development, or actions that use or promote nonnative vegetation 
species.
    (iv) For all forms of allowable take, reasonable care must be 
practiced to minimize the impacts from the actions. Reasonable care 
means:
    (A) Limiting the impacts to cactus ferruginous pygmy-owl 
individuals and populations by complying with all applicable Federal, 
State, and Tribal regulations for the activity in question;
    (B) Using methods and techniques that result in the least harm, 
injury, or death, as feasible;
    (C) Undertaking activities when and where they have the least 
impact (e.g., conducting activities that might impact nesting cactus 
ferruginous pygmy-owls or nesting habitat only after nesting is 
concluded for the year), as feasible;
    (D) Procuring and implementing technical assistance from a 
qualified biologist on all methods and techniques used for a project 
prior to their implementation;
    (E) Minimizing the number of individual pygmy-owls disturbed in the 
existing wild population;
    (F) Implementing best management practices to ensure no diseases or 
parasites are introduced into existing cactus ferruginous pygmy-owl 
populations; and
    (G) Preserving the genetic diversity of wild populations.
* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-14486 Filed 7-19-23; 8:45 am]
BILLING CODE 4333-15-P