97-5788. Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Cactus Ferruginous Pygmy-Owl in Arizona

[Federal Register Volume 62, Number 46 (Monday, March 10, 1997)]
[Rules and Regulations]
[Pages 10730-10747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5788]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC85


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for the Cactus Ferruginous Pygmy-Owl in Arizona

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines endangered 
status for the cactus ferruginous pygmy-owl (Glaucidium brasilianum 
cactorum) in Arizona, pursuant to the Endangered Species Act of 1973, 
as amended (Act). The Service also determines that the cactus 
ferruginous pygmy-owl population in Texas does not warrant listing as a 
threatened species and is not finalizing that portion of the proposal. 
The Service originally proposed to list the cactus ferruginous pygmy-
owl as endangered in Arizona with critical habitat, and threatened in 
Texas without critical habitat.
    New information was received during comment periods indicating that 
population levels are higher in Arizona and Texas than was known at the 
time of the proposed rule. This information has been considered in 
making this final determination. However, the Service still determines 
that the Arizona population warrants endangered status. Conversely, the 
new information indicates that listing the species as threatened in 
Texas is not warranted. This rule implements the Federal protection and 
recovery provisions afforded by the Act for the Arizona population of 
this subspecies.

EFFECTIVE DATE: April 9, 1997.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Arizona Ecological Services Field Office, 
2321 West Royal Palm Road, Suite 103, Phoenix, Arizona, 85021-4951.

FOR FURTHER INFORMATION CONTACT: For Arizona, Mary E. Richardson, 
Arizona Ecological Services Field Office (see ADDRESSES section) 
(telephone [phone]; facsimile 602/640-2730). For Texas, William 
Seawell, U.S. Fish and Wildlife Service, (telephone [phone]; 
facsimile 512/994-8262).

SUPPLEMENTARY INFORMATION:

Background

    The cactus ferruginous pygmy-owl (Order Strigiformes--Family 
Strigidae) is a small bird, approximately 17 centimeters (cm) (6\3/4\ 
inches (in)) long. Males average 62 grams (g) (2.2 ounces (oz)), and 
females average 75 g (2.6 oz). The cactus ferruginous pygmy-owl is 
reddish-brown overall, with a cream-colored belly streaked with 
reddish-brown. Some individuals are grayish, rather than reddish-brown. 
The crown is lightly streaked, and paired black-and-white spots on the 
nape suggest eyes. There are no ear tufts, and the eyes are yellow. The 
tail is relatively long for an owl and is colored reddish-brown with 
darker brown bars. The call of this diurnal owl, heard primarily near 
dawn and dusk, is a monotonous series of short notes.
    The cactus ferruginous pygmy-owl is one of four subspecies of the 
ferruginous pygmy-owl. It occurs from lowland central Arizona south 
through western Mexico, to the States of Colima and Michoacan, and from 
southern Texas south through the Mexican States of Tamaulipas and Nuevo 
Leon. South of these regions and through Central America, G. b. 
ridgwayi replaces G. b. cactorum.
    Throughout South America, G. b. brasilianum is the resident 
subspecies (Fisher 1893, van Rossem 1937, Friedmann et al. 1950, 
Schaldach 1963, Phillips et al. 1964, de Schauensee 1966, Karalus and 
Eckert 1974, Oberholser 1974, Johnsgard 1988). Additionally, Konig and 
Wink (1995) have identified a fourth subspecies of pygmy-owl from 
central Argentina (G.b. stranecki).
    The cactus ferruginous pygmy-owl (hereafter ``pygmy-owl'' unless 
otherwise noted) was described by van Rossem (1937), based on specimens 
from Arizona and Sonora. It is distinguished from G. b. ridgwayi and G. 
b. brasilianum by its shorter wings and longer tail, and by generally 
lighter coloration (van Rossem 1937, Phillips et al. 1964). G. b. 
cactorum occurs in several color phases, with distinct differences 
between regional populations (Sprunt 1955, Burton 1973, Tyler and 
Phillips 1978, Hilty and Brown 1986, Johnsgard 1988). Some 
investigators (e.g., van Rossem 1937, Tewes 1993) have suggested that 
further taxonomic investigation may be needed, however, G. b. cactorum 
is widely recognized as a valid subspecies (e.g., Friedmann et al. 
1950, Blake 1953, Sprunt 1955, Phillips et al. 1964, Monson and 
Phillips 1981, Millsap and Johnson 1988, Binford 1989). The American 
Ornithologists' Union (AOU) recognized G. b. cactorum in its 1957 
Checklist of North American Birds (AOU 1957), but subsequent lists did 
not include subspecies (AOU 1983). Based on these authorities, the 
Service accepted G. b. cactorum as a subspecies in 1991 (56 FR 58804), 
and again in 1993 (58 FR 13045). The Service accepts that there is only 
one subspecies (G. b. cactorum) of cactus ferruginous pygmy-owl in 
Arizona.
    The pygmy-owl nests in a cavity in a tree or large columnar cactus. 
Cavities may be naturally formed (e.g., knotholes) or excavated by 
woodpeckers. No nest lining material is used. The pygmy-owl also has 
nested in fabricated nest boxes (Proudfoot et al. 1994a, Proudfoot 
1996). Three, four, five, and occasionally six eggs are laid (Bent 
1938, Heintzelman 1979, Glenn Proudfoot, Texas A&M University at Caesar 
Kleberg Wildlife Research Institute, unpubl. data 1996) and incubated 
for approximately 28 days. The young fledge about 28 days after 
hatching. The pygmy-owl begins nesting activities in late winter to 
early spring. It is nonmigratory throughout its range (Bendire 1888, 
Griscom and Crosby 1926, Oberholser 1974, Johnson et al. 1979). The 
pygmy-owl's diverse diet includes birds, lizards, insects, small 
mammals (Bendire 1888, Sutton 1951, Sprunt 1955, Earhart and Johnson 
1970, Oberholser 1974), and frogs (Proudfoot et al. 1994b).
    The pygmy-owl occurs in a variety of subtropical, scrub, and 
woodland communities, including riverbottom woodlands, woody thickets 
(``bosques''), coastal plain oak associations, thornscrub, and 
desertscrub. Unifying habitat characteristics among these communities 
are fairly dense woody thickets or woodlands, with trees and/or cacti 
large enough to provide nesting cavities. Throughout its range, the 
pygmy-owl occurs at low elevations, generally below 1,200 meters (m) 
(4,000 feet (ft)) (Swarth 1914, Karalus and Eckert 1974, Monson and 
Phillips 1981, Johnsgard 1988, Enriquez-Rocha et al. 1993).
    In southern Texas, the pygmy-owl's habitat includes coastal plain 
oak associations as well as the Tamaulipan thornscrub of the lower Rio 
Grande Valley region, which consists of mesquite (Prosopis glandulosa), 
hackberry (Celtis spp.), oak (Quercus spp.), and Texas ebony 
(Pithecellobium ebano) (Griscom and Crosby 1926, Bent

[[Page 10731]]

1938, Oberholser 1974, Tewes 1992, Wauer et al. 1993). In northeastern 
Mexico it occurs in lowland thickets, thornscrub communities, riparian 
woodlands, and second-growth forest (van Rossem 1945, AOU 1983, 
Enriquez-Rocha et al. 1993, Tewes 1993). In central and southern 
Arizona the pygmy-owl's primary habitats were riparian cottonwood 
(Populus spp.) forests, mesquite bosques, and Sonoran desertscrub, but 
the subspecies currently occurs primarily in Sonoran desertscrub 
associations of palo verde (Cercidium spp.), bursage (Ambrosia spp.), 
ironwood (Olneya tesota), mesquite (Prosopis juliflora), acacia (Acacia 
spp.), and giant cacti such as saguaro (Cereus giganteus), and 
organpipe (Cereus thurberi) (Gilman 1909, Bent 1938, van Rossem 1945, 
Phillips et al. 1964, Monson and Phillips 1981, Johnson-Duncan et al. 
1988, Millsap and Johnson 1988). In northwestern Mexico the pygmy-owl 
occurs in Sonoran desertscrub, Sinaloan thornscrub, and Sinaloan 
deciduous forest as well as riverbottom woodlands, cactus forests, and 
thornforest (Enriquez-Rocha et al. 1993).
    The available information indicates that distinct eastern and 
western populations of the pygmy-owl are definable. The pygmy-owl 
occurs along the lower Rio Grande and the coastal plain of southern 
Texas and northeastern Mexico. It also occurs in lowland areas of 
northwestern Mexico and southern Arizona. The pygmy-owl's elevational 
distribution, the distribution of habitat, and recorded locations 
indicate that these eastern and western ranges of the pygmy-owl are 
geographically isolated from each other and are ecologically distinct. 
In the United States, eastern and western portions of the pygmy-owl's 
range are separated by the basin-and-range mountains and intervening 
Chihuahuan Desert basins of southeastern Arizona, southern New Mexico, 
and western Texas. The pygmy-owl has never been recorded in this 805 
kilometer (km) (500 mile (mi)) wide area (Bailey 1928, Phillips et al. 
1964, Oberholser 1974, Sartor O. Williams, New Mexico Department of 
Game and Fish, in litt. 1991).
    In Mexico, the eastern and western populations are separated by the 
highlands of the Sierra Madre Oriental and Occidental, and the Mexican 
Plateau. The pygmy-owl is considered rare on the Mexican Plateau at/or 
above elevations of 1,200 m (4,000 ft) on the west, and above 300 m 
(1,000 ft) on the east (Friedman et al. 1950). Some sources describe 
the eastern and western ranges as contiguous at the southern end of its 
range, near the southern end of the Mexican Plateau in central Mexico 
(Johnsgard 1988). Other sources describe these two ranges as disjunct 
(Burton 1973). In his description of the subspecies, van Rossem (1937) 
found that Texas specimens exhibited characteristics of both G. b. 
cactorum and G. b. ridgwayi. Ultimately, he did not assign Texas 
ferruginous pygmy-owls to G. b. cactorum, but noted that Ridgeway 
(1914, in Van Rossem 1937) considered them distinct from G. b. 
ridgwayi, and left the taxonomy of Texas pygmy-owls to be G. b. 
cactorum (e.g., Oberholser 1974, Millsap and Johnson 1988).
    In addition to geographic separation, the pygmy-owl's eastern and 
western populations occupy different habitats. Although some broad 
similarities in habitat physiognomy are apparent (e.g., dense woodlands 
and thickets), floristically, these eastern and western habitats are 
very dissimilar. The desertscrub and thornscrub associations in Arizona 
and western Mexico are unlike any habitats occupied by the pygmy-owl in 
eastern Mexico and southern Texas. Also, the oak association habitat 
occupied on coastal plains in southern Texas is unlike any habitat 
available in the western portion of the pygmy-owl's range. However, the 
Tamaulipan thornscrub habitat of the east and the riverbottom mesquite-
cottonwood bosque habitat in Arizona are more similar in physiognomy 
and to a slight degree in floristic makeup.
    The potential for genetic distinctness further supports a 
distinction between eastern and western pygmy-owl populations. The fact 
that the pygmy-owl is nonmigratory throughout its range suggests that 
genetic mixing across wide areas may be infrequent. In addition, 
considerable variation in plumage between regional populations has been 
noted, including specific distinctions between Arizona and Texas pygmy-
owls (van Rossem 1937, Burton 1973, Tyler and Phillips 1978, Johnsgard 
1988).
    These eastern and western populations of the pygmy-owl may be 
considered separately for listing under the Act. The Act defines 
``species'' as any subspecies . . . and any distinct population segment 
of any species of vertebrate which interbreeds when mature (section 
3(16)). Further, the Service's policy on vertebrate population segments 
(61 FR 4722) requires that, to be a listable entity under the Act, the 
population be ``discrete'' and significant. A population segment is 
``discrete'' if it is markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. A population also can be considered ``discrete'' if 
it is delimited by international boundaries across which exist 
differences in management control of the species. The above information 
indicates that eastern and western populations of the cactus 
ferruginous pygmy-owl are distinct based on geographic isolation, 
distribution and status of habitat, and potential morphological and 
genetic distinctness.
    A population segment is considered ``significant'' if its loss 
would constitute a significant gap in the range of the taxon. The above 
criteria lead the Service to consider the four separate populations of 
G. b. cactorum for listing purposes--western United States (Arizona), 
eastern United States (Texas), western Mexico, and eastern Mexico to be 
both discrete and significant. The Service herein proposes separate 
actions for these various population segments because the levels of 
threat, habitats occupied, quality of information, and overall status 
differ among these four populations.

Previous Federal Action

    The Service included the pygmy-owl on its Animal Notice of Review 
as a category 2 candidate species throughout its range on January 6, 
1989 (54 FR 554). After soliciting and reviewing additional 
information, the Service elevated G. b. cactorum to category 1 status 
throughout its range on November 21, 1991 (56 FR 58804). A category 1 
species was, at that time, defined as a species for which the Service 
had on file substantial information to support listing, but for which a 
proposal to list had not been issued as it was precluded by other 
listing activities. The Service has since discontinued the practice of 
maintaining a list of species regarded as ``category 1'' or ``category 
2'' candidates. Candidates are now considered only those species for 
which the Service has on file sufficient information to support 
issuance of a proposed listing rule (61 FR 64481).
    Based on an extensive review of information on the subspecies, the 
Service has determined that it is now appropriate to list the Arizona 
population as endangered, not to finalize the proposed listing in 
Texas, and to continue reviewing the pygmy-owl in Mexico to determine 
whether Mexican populations should be proposed for listing. Recent 
information from Mexico indicates that the subspecies may be more 
abundant, at least in the southern portion of its range, than 
originally thought.

[[Page 10732]]

    On May 26, 1992, a coalition of conservation organizations (Galvin 
et al. 1992) petitioned the Service requesting listing of the pygmy-owl 
as an endangered subspecies under the Act. The petitioners also 
requested designation of critical habitat. In accordance with Section 
4(b)(3)(A) of the Act, on March 9, 1993, the Service published a 
finding that the petition presented substantial scientific or 
commercial information indicating that listing may be warranted, and 
initiated a status review on the pygmy-owl (58 FR 13045). In conducting 
its status review, the Service solicited additional comments and 
biological data on the status of the cactus ferruginous pygmy-owl 
through mailings, a notice in the Federal Register (58 FR 13045), and 
other means.
    Section 4(b)(3)(B) of the Act requires the Secretary of the 
Interior to determine whether listing a petitioned species is warranted 
within 12 months of the petition's receipt (16 U.S.C. S 1531 et seq.). 
On December 12, 1994, the Service published a 12-month finding on the 
petitioned action (59 FR 63975). This finding indicated that listing of 
the cactus ferruginous pygmy-owl was warranted and a proposed rule was 
published on the same date to list the pygmy-owl as endangered in 
Arizona with critical habitat and as threatened in Texas without 
critical habitat.
    The processing of this final rule conforms with the Service's final 
listing priority guidance published on December 5, 1996 (61 FR 64475). 
The guidance clarifies the order in which the Service will process 
rulemakings during fiscal year 1997. The guidance calls for giving 
highest priority to emergency listings (Tier 1) and the second highest 
priority (Tier 2) to finalizing proposed listings. This final rule 
falls under Tier 2. At this time there are no pending Tier 1 actions.

Summary of Comments and Recommendations

    In the December 12, 1994, proposed rule (59 FR 63975) and 
associated notifications, all interested parties were requested to 
submit factual reports or information that might contribute to 
development of a final rule. The original comment period closed April 
11, 1995, then was reopened from May 1, 1995, to May 30, 1995 (60 FR 
19013), and again from October 10, 1996, to November 12, 1996 (60 FR 
53187).
    Appropriate State agencies and representatives, County and City 
governments, Federal agencies and representatives, scientific 
organizations, and other interested parties were contacted and 
requested to comment. Newspaper/media notices inviting public comment 
were published in the following newspapers--in the State of Arizona, 
the Indian Country Today, the Tucson Citizen, the Arizona Republic, the 
Arizona Silver Belt, the Green Valley News/Sun, and the Eastern Arizona 
Courier; and for the State of Texas, in the Laredo Morning Times, the 
Corpus Christi Caller-Times, the Valley Morning Star, the Monitor, and 
the Brownsville Herald. The inclusive dates of publications were 
January 6-18, 1995, for the initial comment period; and April 21-26 and 
October 15-30, 1995, for the first and second extensions of the comment 
period, respectively.
    In response to requests from the public, the Service held two 
public hearings. Notices of hearing dates and locations were published 
in the Federal Register on April 14, 1995 (60 FR 19013). Appropriate 
State agencies and representatives, County and City governments, 
Federal agencies and representatives, scientific organizations, and 
other interested parties were contacted regarding the hearings. 
Approximately 300 people attended the hearing in Tucson, Arizona and 
approximately 30 people attended the hearing in Weslaco, Texas. 
Transcripts of these hearings are available for inspection (see 
ADDRESSES section).
    A total of 123 written comment letters were received at the 
Service's Ecological Services Field Office in Phoenix, Arizona--30 
supported the proposed listing; 1 supported the proposed listing in 
Arizona only; 1 supported the proposed listing in Texas but was opposed 
to listing in Arizona; 8 opposed the proposed listing; 14 opposed the 
proposed listing and proposed critical habitat; 45 opposed only the 
proposed critical habitat; and 24 either commented on information in 
the proposed rule but stated neither support nor opposition, provided 
additional information only, or were nonsubstantive or irrelevant to 
the proposed listing.
    Oral comments were received from 20 parties at the hearings. 
Written comments received at the hearings or given to Service 
representatives prior to the hearings are included within the 
discussion above. Of the oral comments at the hearings, 3 supported the 
proposed listing; 4 opposed the proposed listing; and 9 expressed 
neither support nor opposition, provided additional information only, 
or were nonsubstantive or irrelevant to the proposed listing.
    In total, oral or written comments were received from 15 Federal 
and State agencies and officials, 11 local officials, and 126 private 
organizations, companies, and individuals. All comments, both oral and 
written, received during the comment period are addressed in the 
following summary with the exception of those pertaining to finalizing 
critical habitat and the proposed special rule. In accordance with the 
Service's published listing priority guidance, finalizing critical 
habitat is of the lowest priority and would only be addressed upon the 
completion of higher priorities. All comments regarding critical 
habitat will remain on file with the Service. Since the Service is not 
finalizing the proposed listing of the pygmy-owl as threatened in 
Texas, the associated proposed special rule and comments regarding it 
are now moot. Comments of a similar nature are grouped into a number of 
general issues. These issues and the Service's responses are discussed 
below.
    Issue 1: Other processes, especially conservation agreements in 
lieu of listing, could be more effective at protecting these species, 
and would impose fewer regulations and restrictions on land use as 
compared to Federal listing.
    Comment: One commenter asked what local, City, and County officials 
the Service had coordinated with on this action.
    Service Response: The Service has maintained an active mailing list 
that includes local, City, and County officials, as well as State and 
Federal officials and private individuals who have expressed an 
interest in the pygmy-owl listing process. We have provided copies of 
Federal Register notices, including those announcing public hearing 
dates, throughout the listing process to individuals on this mailing 
list. Numerous local, City, County, State, and Federal agencies 
provided comments during open comment periods, and these comments have 
been considered in developing the final recommendation for this listing 
action. The administrative record is available for review, by 
appointment, during normal business hours (see ADDRESSES section).
    Comment: Several commenters recommended doing conservation 
agreements in lieu of listing.
    Service Response: The Service does not believe that a conservation 
agreement, sufficient to preclude listing in Arizona, is feasible at 
this time because of the extremely small population size and the 
numerous threats faced by the species. However, it should be noted that 
listing of the species does not preclude the future development of 
habitat conservation

[[Page 10733]]

plans or other conservation agreements with private individuals or 
agencies.
    Comment: Several commenters understood that the Director of the 
Service has said that states should take the lead on matters of 
sensitive species, and therefore, the Service should follow its policy 
and let the states take the lead in addressing the habitat needs of the 
pygmy-owl and not list it.
    Service Response: The Service is required to follow the provisions 
of the Act, and in regard to this action, its implementing regulations 
on listing in 50 CFR 424. Section 4(a) of the Act clearly assigns the 
responsibility of making listing decisions to the Secretaries of the 
Interior and Commerce. However, in making those decisions, the 
Secretaries are required to take into account conservation actions 
(section 4(b)(1)(A)), notify and invite comment from states, counties, 
and others on the proposed rules (section 4(b)(5)), hold one public 
hearing on the proposed rule, if requested (section 4(b)(5)(E)), and 
take other steps to ensure that the concerns of local governments, 
citizens, and others are considered in the listing decision. The 
Service has complied with all these requirements for listing the pygmy-
owl.
    The Service recognizes that unless preempted by Federal authority, 
states possess primary authority and responsibility for protection and 
management of fish, wildlife, and plants and their habitats. The 
Service has and will continue to solicit and utilize the expertise and 
information provided by the states. The Service will work closely with 
residents and officials in the management and recovery of the pygmy-
owl. The Service invites others to work with us on voluntary 
conservation programs as well.
    Issue 2: Economic, social, and cultural impacts of listing need to 
be evaluated and considered in the listing process.
    Comment: Several commenters requested that the Service study the 
indirect and direct economic, social, and/or cultural costs and effects 
of listing the pygmy-owl. Concern was expressed that listing of the 
species would affect use and value of private property, use of areas of 
agricultural concern, new construction, trade and landowner rights, 
minorities, and off-road tour companies. Concern also was expressed 
that there would be no land owner compensation from the effects of 
listing. Some commenters stated that the results of this analysis 
should be weighed with threats, status, and other listing factors in 
determining whether these species should be listed.
    Service Response: 50 CFR 424.11(b) requires the Secretaries of the 
Interior and Commerce to make decisions on listing based on ``the best 
available scientific and commercial information regarding a species' 
status, without reference to possible economic or other impacts of such 
determination.'' The Service is required to solicit comments from the 
public on proposed listings and consider those comments in final 
decisions (50 CFR 424.16), as we have done here. The Service does not 
have the authority or a regulatory mandate to conduct impact analyses 
on listing decisions, provide compensation to affected landowners, or 
take other actions outside of its authority.
    Comment: Several commenters were concerned that the increased cost 
and delay associated with projects affected by the proposed rule will 
cause unreasonable consequences for future developments and/or needed 
public improvement projects.
    Service Response: Any discretionary action funded, carried out, or 
authorized by a Federal agency that may affect a listed species would 
be subject to the section 7 consultation process. If a Federal agency 
is involved in developments and/or needed public improvement projects, 
it would need to evaluate its actions and possible effects on listed 
species. The Service is required to deliver a biological opinion, which 
concludes consultation, to the action agency within 135 days of receipt 
of a request for consultation (50 CFR 402.14(e)). If the action agency 
incorporates consultation into their planning process and consultation 
is initiated early, project delays are unlikely. Some additional costs 
may accrue resulting from meetings with the Service, preparation of 
documents, and implementation of any reasonable and prudent 
alternatives or measures in the biological opinion. Private actions 
that do not require Federal funds, actions, or authorization, such as a 
private individual building a house with private funds, are not subject 
to section 7.
    Comment: Another commenter stated that the proposed listing of the 
pygmy-owl was an attempt to take property rights away from land owners, 
to gain more power, to increase personnel, and to control all of the 
rivers, creeks, washes, and water in the country.
    Service Response: The purpose of this listing is to extend the 
protection of the Act to the pygmy-owl. This protection does not 
authorize the Service to increase personnel or assert jurisdiction over 
water rights, and the Service does not anticipate significant impacts 
to local economies or to the well-being of citizens. The listing of the 
pygmy-owl does not, in itself, restrict groundwater pumping or water 
diversions, does not in any way limit or usurp water rights, or violate 
State or Federal water law. Through section 7 consultations, extraction 
or use of water that is funded, carried out, or authorized by Federal 
agencies that might adversely affect the pygmy-owl could be modified 
through reasonable and prudent measures or alternatives in a biological 
opinion, pursuant to 50 CFR 402.14 (h) and (i).
    As described in ``Available Conservation Measures'' section, with 
the promulgation of this rule, Federal agencies will be required to 
comply with section 7 of the Act to ensure their activities do not 
jeopardize the continued existence of these species. Compliance with 
section 7 or other provisions of the Act has never resulted in the 
wrongful taking of property. The Service does not envision a regulatory 
scenario that would result in such actions.
    Issue 3: Information presented in the proposed rule was 
insufficient to support listing or was in error.
    Comment: The pygmy-owl warrants an endangered listing in Texas, as 
opposed to threatened. The species has declined throughout a 
significant portion of its range in Texas and is now rare, significant 
threats continue to exist within that state and habitat continues to be 
low, and future threats to habitat in Texas are significant due to 
increasing human population near the border with Mexico.
    Service Response: In Texas, the threats to the species are less 
prevalent than in Arizona. The Service does not believe listing is 
warranted at this time. Further discussion of the Service's decision 
not to finalize the listing proposal in Texas is discussed in the 
``Summary of Factors Affecting the Species'' section, and elsewhere in 
this final rule.
    Comment: Routine ranching activities have contributed to the 
decline of the species in Texas, yet the Service asserts that ``present 
land management by private (Texas) landowners is generally compatible 
with the well-being of the owl.'' This assertion cannot be squared with 
all the evidence indicating that the pygmy-owl is in grave danger of 
extinction in Texas.
    Service Response: In Texas, pygmy-owl records are from two distinct 
areas. The first area is along the Rio Grande. Agricultural activities 
have historically resulted in clearing of 95 percent of the native 
Tamaulipan brushland in this area, as noted in the proposed rule. The 
second area is north of the Rio Grande Valley, in and around Kenedy 
County. The owls in these areas occupy coastal oak associations. As 
noted in this document, impacts to these areas are

[[Page 10734]]

lesser, with only limited oak clearing occurring. It is the land 
management by private landowners in the coastal oak association that is 
considered generally compatible with the well-being of the pygmy-owl. 
It is in these areas that the Service anticipates developing 
conservation agreements with private landowners to ensure conservation 
of the species.
    The Service also will consider developing conservation agreements 
with willing landowners in the Rio Grande Valley. However, the Service 
believes that the ongoing establishment of native vegetation along the 
Rio Grande, as implemented by the Service's National Wildlife Refuge 
System, holds the most promise for conserving the species in the Rio 
Grande Valley.
    Comment: Several commenters stated that Arizona and Texas represent 
the northern edge of the pygmy-owl's distribution and that most species 
are uncommon or of marginal occurrence at the edges of their range.
    Service Response: The Service agrees that Arizona and Texas 
represent the northernmost portion of the pygmy-owl's range. However, 
we believe the information reviewed and discussed in the final rule 
indicates that pygmy-owls occurred in higher numbers in Arizona and 
Texas in the past, and that loss of habitat and other factors have led 
to their decline. The continued presence of birds in Arizona, including 
those that are successfully reproducing, indicates a persistent 
population. In addition, there is a significant population of nesting 
birds in Texas. The Service believes that listing the Arizona 
population at this time is necessary to prevent extirpation of the 
species from that portion of its range within the United States.
    Comment: Several commenters claimed that the Service misrepresents 
the work of all nine authors it cites in support of its three 
subspecies claim. Not one of these authors cited by the Service 
discusses three subspecies of this owl.
    Service Response: The use of the scientific name Glaucidium 
brasilianum cactorum in and of itself indicates recognition of a 
subspecies. Of the authors cited in the proposed and final rules on the 
discussion of taxonomy, van Rossem (1937), Friedmann et al. (1950), 
Sprunt (1955), AOU (1957), Schaldach (1963), Karalus and Eckert (1974), 
Johnsgard (1988), and Millsap and Johnson (1988) use G. b. cactorum in 
referencing the pygmy-owl. The leading authority on bird taxonomy, the 
AOU, recognized the cactus ferruginous pygmy-owl as a subspecies in its 
1957 publication. As noted in the proposed rule and this and final 
rule, subsequent publications of the AOU have not addressed any 
subspecies, including that of the pygmy-owl.
    Comment: Several commenters stated that the Service's analysis of 
the pygmy-owl's habitat preferences was flawed. They questioned whether 
deciduous riparian woodland is the preferred habitat for the pygmy-owl, 
and stated that their presence in Sonoran desertscrub is uncommon to 
rare and unpredictable. It also is possible that the apparent ``shift'' 
from riparian areas to upland areas closely correlates with the 
increase in woody brush in Arizona's grasslands that occurred 
throughout the central and southern portions of the State after the 
advent of cattle grazing in the late 1800's and early 1900's. There 
actually may be more suitable habitat now than in historic times when 
the riparian areas represented the only brushy habitat in what was 
otherwise primarily a desert grassland setting. Based on its erroneous 
assumption that the pygmy-owl prefers riparian habitats, the Service 
has focused its analysis on such habitats and not provided a discussion 
of threats to other habitat types.
    Service Response: The proposed rule noted that the majority of the 
historical records came from along waterways such as the Rillito or 
Santa Cruz rivers, but also noted that Sonoran desertscrub provided 
suitable habitat for the pygmy-owl in central and southern Arizona. As 
noted within this final rule, naturalists collecting specimens have 
indicated that the pygmy-owl was rare in Sonoran desertscrub (see 
references to Kimball 1921, Johnson and Haight 1985, and Taylor 1986 
within the text of the final rule). Since publishing the proposed rule, 
additional birds were found in Arizona, and the text within this final 
rule has been adjusted accordingly. The majority of the birds in the 
Arizona population occur in Sonoran desertscrub habitat.
    While there may be more ``woody brush'' in Arizona today as a 
result of cattle grazing, not all of this vegetation is suitable pygmy-
owl habitat. The pygmy-owl is known to occur in Sonoran desertscrub 
where that desertscrub is particularly dense and supports either 
saguaro cactus, organ pipe cactus, or mesquites of sufficient size for 
cavity nesting. In those Sonoran desertscrub areas where the pygmy-owl 
has been found in the last few years, a density of understory 
vegetation is also present. Surveys have occurred in areas known to 
support this vegetation, with negative results in some instances.
    This final rule includes modifications to language in the proposed 
rule to indicate that pygmy-owls historically and currently use Sonoran 
desertscrub within the State of Arizona. The proposed rule also was 
modified to include language on the threats to this Sonoran desertscrub 
habitat, which are primarily from urban development.
    Comment: One commenter stated that endangerment of the pygmy-owl in 
the Verde River area is due to the absence of federally placed signs, 
patrols, and follow-ups on shooting incidents.
    Service Response: There are no known current records of pygmy-owls 
in the Verde River area and the Service is unaware of any shooting 
incidents that involved the pygmy-owl. The Service does not believe 
that posting of signs and conducting patrols in this area would benefit 
the owl at this time. Currently, with the exception of a few birds 
located on Organ Pipe Cactus National Monument (OPCNM), the pygmy-owl 
occurs on private land, and it is not within the Service's authority to 
place signs or conduct patrols on private property.
    Comment: Some commenters suggested that the pygmy-owl is not in 
danger of extinction in all or a significant part of its range and that 
the Service overstates the threats to the species. The Service has 
failed to present any evidence of a particular threat to the pygmy-owl 
that has suddenly arisen and that is likely to lead to extinction 
unless curtailed. One commenter stated that the Service failed to 
establish that the removal of riparian forests and the diversion and 
channelization of natural watercourses, and pumping groundwater may 
also cause the diminishment of the species. One commenter claimed the 
Service overstates the effects of groundwater pumping and surface water 
diversions upon particular species of wildlife, and fails to 
distinguish among such water uses. Some commenters claimed the Service 
did not support assertions of habitat loss from traditional, 
historical, public and private land uses with reference to any 
scientific facts. One commenter asserted that there is no threat of 
destruction, modification, or curtailment of habitat.
    Service Response: The Service does not believe that the threat to 
this species or its habitat in Arizona has been overstated. As noted 
within this final rule, the Service must evaluate the best scientific 
and commercial information available and determine if the proposal 
meets the definition of endangered or threatened based on any of the 
five listing factors. The Service completed this evaluation and finds 
that the pygmy-owl in Arizona meets the definition of endangered, owing 
to three

[[Page 10735]]

of the five factors, namely the present or threatened destruction, 
modification, or curtailment of its habitat or range, the inadequacy of 
existing regulatory mechanisms, and other natural or manmade factors 
affecting its existence.
    The historic loss of riparian habitat in Arizona is well 
documented. Because of the current location of the largest known 
Arizona pygmy-owl population and pending developments in this key area, 
the Service believes that imminent threats have been identified. The 
factors related to this listing are provided in detail in the final 
rule under the ``Summary of Factors Affecting the Species'' section.
    In response to the comment that the Service failed to establish 
that the removal of riparian forests, and the factors that cause it, 
also may cause the diminishment of the species, the Service notes that 
a variety of activities has been responsible for the loss of riparian 
habitat in the State of Arizona. Through historic records, the pygmy-
owl is noted to have occurred in riparian areas prior to the mid-1900's 
and was described as a ``common,'' ``abundant,'' ``not uncommon,'' and 
``fairly numerous'' resident of lowland central and southern Arizona in 
cottonwood forests, mesquite-cottonwood woodlands, and mesquite bosques 
along the Gila, Salt, Verde, San Pedro, and Santa Cruz rivers, and 
various tributaries. We believe, therefore, the statement is justified 
that the loss of riparian habitat has led to its decline. Numerous 
authors were cited with respect to this statement, and their names are 
provided in the final rule. Should all or a significant portion of the 
habitat within the range of a given species be removed or altered, 
diminishment of the species is not an unlikely result. The Service 
believes the link between habitat loss and the decline of the pygmy-owl 
has been made in the text of this final rule. The Service believes that 
the assertions of habitat loss from traditional, historical, public, 
and private land uses are well documented within the final rule under 
the section ``Summary of Factors Affecting the Species,'' particularly 
that section under the ``Western Populations'' subsection.
    Comment: Several commenters suggested that no evidence exists to 
support the statement that the pygmy owl is declining, and others noted 
that the listing of a species should be based upon something more than 
the rarity of that species in a particular part of the United States.
    Service Response: The Service has completed a review of available 
literature and believes that the information indicates that there has 
been a decline of the species in both Arizona and Texas. However, the 
Service does not believe the pygmy owl's decline is significant enough 
in Texas to warrant listing the species as threatened.
    As discussed in the final rule, the pygmy-owl was described as a 
``common,'' ``abundant,'' ``not uncommon,'' and ``fairly numerous'' 
resident of lowland central and southern Arizona, in riparian habitat 
along numerous drainages prior to the mid-1900's. In most instances, 
observations of pygmy-owls were made during site visits where the 
author was documenting all species observed over a given area, without 
focusing on the pygmy-owl. In contrast, Hunter (1988) found fewer than 
20 verified records of pygmy-owls in Arizona for the period of 1971 to 
1988, and recent survey efforts, focusing specifically on pygmy-owls, 
have located a total of 19 individuals at the highest, with most annual 
survey results being 2 to 3 birds.
    It should be noted that there are five listing factors, as detailed 
in the text of this rule. While the pygmy-owl could be called rare, and 
while the Service believes the decline in numbers of individual birds 
to be an important piece of information, the recommendation to add the 
pygmy-owl in Arizona to the endangered species list was based on an 
analysis of the five listing factors.
    Comment: Even the few reports that the Service did examine with 
respect to historic abundance were reported incorrectly or were not 
found in the Service files.
    Service Response: Coues (1872) has been removed as a reference from 
that section of the listing that addresses species abundance in the 
early 1900's. However, the Service has verified that the remainder of 
the literature citations (Bendire 1888, Fisher 1893, Breninger 1898 in 
Bent 1938, Gilman 1909, Swarth 1914) were correctly quoted. All 
literature cited within this final rule is on file at the Service's 
Arizona Field Office (see ADDRESSES section).
    It is important to note that, while the Service believes the number 
of birds has declined, the decision to list the pygmy-owl does not 
depend entirely on population trends of the pygmy-owl. It also is 
necessary to assess current threats to the remaining birds, through 
evaluation of the five listing factors. If this evaluation indicates 
that the number of birds known to currently occur in Arizona and Texas 
are under sufficient threat to cause them to be in danger of extinction 
or endangerment, the Service must make the decision to list the 
species. As outlined in this final rule, the Service believes analysis 
of the best scientific and commercial data indicates that the pygmy-owl 
is threatened with extinction in Arizona and warrants listing as an 
endangered species.
    Comment: Not a single source listed by the Service ever conducted 
any analysis that would allow one to conclude that 90 percent of the 
riparian areas have been lost or modified. The fact that the Service 
presents an unfounded conclusion as scientific fact, without 
appropriate qualification, undermines the credibility of every other 
conclusion it has expressed and provides evidence that the rule is 
intended to further a political or other agenda unrelated to necessary 
protection for the pygmy-owl.
    Service Response: The State of Arizona has twice recognized the 
loss of riparian habitat. The Governor's Riparian Task Force concluded 
that 90 percent of the riparian habitat in Arizona had been lost. This 
document is cited in the proposed rule and this final rule. 
Additionally, the Arizona Game and Fish Department (AGFD) stated that 
90 percent of the State's riparian habitat had been lost in their 
November 1988 issue of Wildlife Views (AGFD 1988). This source has been 
added to this final rule. The Service has previously published 
literature (Department of Interior 1988) on the loss of riparian 
habitat indicating that an estimated 10 percent of the original 
riparian on the Colorado River remains, while 5 percent of the original 
riparian on the Gila River remains. This document states that only 
approximately 15 percent of the original riparian area in Arizona 
remains in its natural form. This citation also has been added to this 
final rule. The final rule has been modified to reflect this figure, as 
well as the 90 percent figure. The remainder of the references in this 
section address disturbance of riparian areas due to various 
activities, and address losses, although percentages are not provided.
    Comment: The Service's statement that the pygmy-owl is now rare or 
absent in northern Sonora, within 150 miles of the United States-Mexico 
border, is incorrect. The Service inaccurately cites Russell and 
incorrectly assesses the status of the pygmy-owl in northern Sonora.
    Service Response: The Service believes the literature cited in this 
final rule supports this statement. The reference to Monson and 
Russell, however, has been deleted.
    Comment: Some commenters were concerned that the available 
information was not sufficient to accurately identify all areas or 
habitats with the potential

[[Page 10736]]

to support the species. Others suggested that more surveys, genetic 
data, information on pygmy-owls from Mexico, and dispersal data are 
needed.
    Service Response: The Service agrees that many aspects of the 
ecology of this species are poorly understood and need further study. 
These aspects are treated as uncertainties here and in the proposed 
rule. Despite these uncertainties, sufficient surveys have been 
conducted to adequately assess the current status of the species, its 
perceived threats, and whether or not listing is warranted. The Service 
is not required to study and answer all questions concerning the 
ecology or status of a species before it may be listed. Rather, the 
Service is required to make listing determinations on the basis of the 
best scientific and commercial data available (section 4(b)(1)(A) of 
the Act).
    Comment: One commenter stated that prey or lack of prey would not 
be a hindrance to the population. Similarly, one commenter asked what 
would happen if the prey items on which the pygmy-owl feeds were to 
become endangered.
    Service Response: The Service interprets this comment to mean that 
it is not a lack of prey that has led to the decline of the pygmy-owl. 
The Service concurs with this statement. Studies have indicated that 
the pygmy-owl is a generalist with a diverse diet, including a variety 
of species of birds, insects, reptiles, small mammals, and amphibians. 
Therefore, it is unlikely that a lack of prey items, in and of itself, 
has contributed to a decline in the subspecies. Similarly, because the 
pygmy-owl uses a wide variety of prey items, it is unlikely that its 
feeding habitats would lead to the endangerment or extinction of a 
species. Should one of its prey items become extinct for other reasons, 
it should not have an adverse effect on the pygmy-owl.
    Comment: One commenter stated that pygmy-owls were not extirpated 
in Arizona.
    Service Response: The Service concurs with this statement. Surveys 
for 1996 indicated a total of 19 known birds, with 2 additional 
unconfirmed sightings. The final rule has been modified to amend the 
statement on extirpation that appeared in the proposed rule.
    Comment: One commenter stated that a source for the map in the 
proposed rule was not given.
    Service Response: The Service used various published and 
unpublished information to develop the Federal Register map.
    Issue 4: The Services information is not based on the best 
scientific or commercial information.
    Comment: A commenter stated that riparian loss is being addressed 
through various means, and listed several examples. It was further 
stated that the State of Arizona is committed to statutorily mandating 
riparian conservation so no other protection is necessary.
    Service Response: The Service supports rehabilitation of riparian 
areas. However, the acres of riparian habitat that have been altered or 
removed since the early 1900's exceed those which have been 
rehabilitated. In addition, these projects have only recently been 
funded, and many years will be needed to determine their effectiveness 
in restoring riparian habitat and the resulting effect on pygmy-owl 
populations. Further, riparian loss is only one of many factors 
affecting the pygmy-owl.
    Comment: Some commenters claimed that the Service ``mis-cites'' 
several authors to support the claim that the pygmy-owl's habitat is 
threatened by destruction and modification, that it was a commonly 
found inhabitant of mesquite bosques in Arizona, and that river bottom 
forests and bosques supported the greatest populations of pygmy-owls.
    Service Response: Additional information has been added to the 
final rule to indicate that pygmy-owls were found historically in 
Sonoran desertscrub in central and southern Arizona. However, the 
Service believes that the available literature indicates that the 
majority of birds found by early naturalists were found in the riparian 
and mesquite bosque habitat along the major drainages in central and 
southern Arizona.
    Comment: One commenter questioned the importance of mesquite 
habitat in Texas.
    Service Response: As noted in this final rule, the pygmy-owl 
historically occurred in dense mesquite thickets along the Rio Grande. 
Further, as noted under section A, ``The present or threatened 
destruction, modification, or curtailment of its habitat or range'' for 
Texas, pygmy-owls have been detected in 1994 and 1995 on two of the 
ranches in Texas that support mesquite woodlands.
    Comment: The Service has failed to examine the reports of many 
other early explorers who surveyed for wildlife but found few or no 
pygmy-owls. The Service only reviewed reports of early naturalists and 
ornithologists that actually referenced the pygmy-owl in their reports.
    Service Response: The absence of a reference to pygmy-owls in the 
published reports of early naturalists does not establish absence of 
the species. It is possible that a naturalist who did not indicate that 
pygmy-owls were seen may not have known the species or may not have 
observed the species when the species was, in fact, present.
    Comment: The Service has proposed the listing of the pygmy-owl 
without due regard to the studies currently being conducted by Dr. Sam 
Beasom of Texas A&M University.
    Service Response: Although the proposed rule did not quote Dr. 
Beasom's studies, information from these studies has been included in 
the final rule. This information has been considered in reaching a 
final decision on listing of the pygmy-owl.
    Comment: Much of what the Service assumes is true regarding the 
effects of groundwater pumping and surface water diversions is an 
ongoing debate among hydrologists, geologists and other experts. The 
Service's failure to consult the Arizona Department of Water Resources 
and other experts is a failure to consider the best scientific data 
available.
    Service Response: The text of the final rule cites several sources 
indicating that pumping of groundwater, along with several other 
activities, has led to the reduction of riparian habitat. The Service 
believes that the connection between groundwater pumping and its 
effects on riparian habitat have been adequately documented through 
these sources. In addition, information was solicited from State and 
Federal agencies, as well as the public, and comments received during 
the open comment periods were evaluated as part of this analysis.
    Comment: The Service has not completed any groundtruthing of data 
or notified the landowners of groundtruthing.
    Service Response: For obvious reasons, the Service cannot 
groundtruth historical observation data. However, survey efforts 
conducted by the OPCNM, the AGFD, and the Service since 1990 have been 
conducted on the ground. The AGFD, which has conducted the work in the 
Tucson area, has contacted private landowners regarding their survey 
work in that area.
    Comment: Some commenters felt that the rule was based on 
assumptions, hearsay, speculative observations, and anecdotal evidence, 
not scientific data, and that the Act does not provide for listing 
based on this type of information.
    Service Response: The Service has used the best scientific and 
commercial

[[Page 10737]]

information available in its determination to list the pygmy-owl. The 
threats have been documented under the ``Summary of Factors Affecting 
the Species'' section. The Service believes there are adequate 
references within the final rule to document the detrimental effects of 
overgrazing, as well as other activities, on riparian habitat in the 
Southwest. Evidence presented in the literature and summarized in the 
final rule, including recent studies on the pygmy-owl in Texas and 
Arizona, indicate the importance of the different habitat types to 
pygmy-owls in the two different populations. The Service believes that 
the historical information referenced in the final rule, while 
potentially considered anecdotal or speculative, is important in 
developing an understanding of the subspecies. However, the Service did 
not rely solely on this information in developing a recommendation to 
list.
    Comment: The rule suggests that different population segments tend 
to inhabit different habitat, although the various habitats do appear 
to share some basic characteristics. The rule then seems to suggest 
that within a specific area, the bird seems to need specific vegetation 
criteria. It seems the bird is far more adaptable than the Service 
gives it credit.
    Service Response: As noted in the proposed rule and in this final 
rule, the eastern and western populations of the pygmy-owl inhabit 
different vegetation communities. Although these communities consist of 
different plant species (for example, live oak-honey mesquite and ebony 
in Texas, versus saguaros and cottonwood-willow in Arizona), there are 
common characteristics in the two communities, such as some form of 
vegetation large enough to support cavity nesting and a dense 
understory.
    Comment: The cactus ferruginous pygmy-owl is not a separate species 
of the ferruginous pygmy owl.
    Service Response: The Service considers the cactus ferruginous 
pygmy-owl to be a subspecies of the ferruginous pygmy-owl. The Service 
refers the commenter to the discussion on taxonomy under the 
``Background'' section.
    Comment: DNA analysis suggests lack of differentiation between 
Mexican and Texas populations, so there is no need to list.
    Service Response: As noted in the proposed and final rules, the 
Service will continue to evaluate information on the pygmy-owl in 
Mexico and Texas. The Service's responses under Issue 5 explain the 
purpose in considering the separate populations identified in the 
proposed and final rules.
    Issue 5: The designation of four distinct population segments for 
the pygmy-owl has no scientific or regulatory basis.
    Comment: Several commenters stated that there is no biological 
reason or regulatory authority which would allow the Service to draw a 
distinct vertebrate population segment boundary at the international 
border.
    Service Response: The Service's policy on distinct vertebrate 
population segments (61 FR 4722) recognizes that the use of 
international boundaries as a measure of discreteness of a population 
may introduce an artificial and nonbiological element to the 
recognition of distinct population segments. However, the Service has 
determined that it is reasonable to recognize units delimited by 
international boundaries when these units coincide with differences in 
the management, status, or exploitation of a species. With respect to 
the pygmy-owl, the Service believes the status of the species in 
Arizona is different from that in Sonora, with records currently 
indicating a higher number of individuals in Sonora as discussed in 
this final rule.
    While the area classified as the range of the Arizona population 
may only represent a small percentage of its total range, it is the 
area within which the United States Government, through the Department 
of the Interior, can affect protection and recovery for this species. 
The Service believes that data indicate a decline of this species 
within its United States range, and that listing in Arizona is 
warranted.
    Comment: Several commenters stated that the Service did not support 
its determination that the Arizona, Texas, eastern Mexico, and western 
Mexico populations of pygmy-owls meet the definition of discrete 
populations.
    Service Response: The Service believes that the potential for 
genetic distinctness of the Arizona and Texas populations exists 
because the pygmy-owl is nonmigratory throughout its range and genetic 
mixing across the area separating the Arizona and Texas populations is 
likely infrequent. The Arizona and Texas portions of the pygmy-owl's 
range are separated by the basin and range mountains and intervening 
Chihuahuan Desert basins of southeastern Arizona, southern New Mexico, 
and western Texas.
    In addition to geographic separation, the pygmy-owl's Texas and 
Arizona populations occupy different habitats. Although some broad 
similarities in habitat physiognomy are apparent (e.g., dense woodlands 
and thickets), floristically, these eastern and western habitats are 
very dissimilar. The desertscrub and thornscrub associations in Arizona 
are unlike any habitats occupied by the pygmy-owl in eastern Mexico and 
southern Texas. Also, the oak association habitat occupied on coastal 
plains in southern Texas is unlike any habitat available in the Arizona 
portion of the pygmy-owl's range. In addition, considerable variation 
in plumage between regional populations has been noted, including 
specific distinctions between Arizona and Texas pygmy-owls.
    Comment: Several commenters stated that the Service did not show 
that the Arizona, Texas, eastern Mexico, and western Mexico populations 
of pygmy-owls were significant.
    Service Response: The Service's policy on distinct vertebrate 
population segments requires it to consider the elements of 
discreteness, significance, and status. In determining whether or not a 
population meets the significance element, the Service must consider--
(1) Whether a discrete population segment persists in an ecological 
setting unusual or unique for the taxon; (2) whether there is evidence 
that loss of the discrete population segment would result in a 
significant gap in the range of a taxon; (3) whether there is 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) whether there 
is evidence that the discrete population segment differs markedly from 
other populations of the species in its genetic characteristics.
    The Arizona and Texas populations of the cactus ferruginous pygmy-
owl are unique due to their geographic separation, potential 
morphological and genetic distinctness, and the floristics, 
distribution, and status of habitat. Should the loss of either the 
Arizona or Texas populations occur, the remaining population would not 
fill the resulting gap as the remaining population would not be 
genetically or morphologically identical, and would require different 
habitat parameters. The loss of either population also would decrease 
the genetic variability of the taxon and would result in a significant 
gap in the range.
    Issue 6: The existing regulations and management of the land by 
landowners are satisfactory for protecting the pygmy-owl.
    Comment: Several commenters stated that both Arizona and Texas were 
adequately protecting the pygmy-owl so federally listing it would not 
be necessary. The State of Arizona is

[[Page 10738]]

committed to statutorily mandate riparian conservation so no other 
protection is necessary. The pygmy-owl already is listed as threatened 
by the State of Texas.
    Service Response: While the Service recognizes the efforts of the 
State of Arizona in protecting potential pygmy-owl habitat, laws have 
yet to be finalized and potential benefits of these efforts have not 
yet been realized. Thus, these efforts have not yet affected the status 
of the species. However, these actions are expected to contribute to 
recovery.
    Listing a species as threatened by Texas requires that permits be 
obtained for propagation, zoological gardens, aquariums, rehabilitation 
purposes, and scientific purposes, as noted in the final rule, but 
there are no provisions for habitat protection. However, the Service 
also believes that current land-use practices in the area of the main 
Texas pygmy-owl population are not detrimental to the species.
    Comment: Several commenters felt that current landowners have 
protected and enhanced lands and that they are being penalized for 
being good stewards. They felt that the Service should be more 
interested in helping them and learning from them.
    Service Response: The Service recognized, in the proposed rule and 
this final rule, that the major portion of the population in Texas 
exists today because present land management by private landowners is 
generally compatible with the well-being of the pygmy-owl. The Service 
will continue to work with landowners in developing management plans 
and agreements with the objective of conserving the Texas population.
    Conversely, there is an imminent threat of extirpation of the 
subspecies in Arizona. The Service believes that listing of the pygmy-
owl as endangered in Arizona provides protection of the pygmy-owl, as 
mandated by provisions of the Act.
    Issue 7: The Service failed to follow Federal or other regulations 
in regard to the listing of these species.
    Comment: The Service violates the Act's requirement for the 
Secretary to make his decision regarding listing of the species within 
12 months of receiving the petition. The proposed rule was not 
published until some 17 months after the petition was filed. The Idaho 
Farm Bureau Federation v. Babbitt court ruling stated that if a 
proposal to promulgate a final regulation is not made within the 
statutory 12 months (or 18 months if an extension is declared), then 
the proper course is for the Secretary to find there is insufficient 
evidence at that time to justify the listing and to withdraw the 
listing.
    Service Response: The petition to list these species was received 
by the Service on May 26, 1992. Regulations at 50 CFR 424.14(b) require 
the Service to publish, within 12 months of receipt, a notice in the 
Federal Register determining whether the petitioned action is 
warranted. If the action is warranted, the Service must promptly 
publish a proposed rule, with certain exceptions (50 CFR 424.14(b)(3)). 
In this case, the Service opted to publish a proposed rule at the same 
time as the 12-month finding. The date of that finding and proposed 
rule was December 12, 1994. In accordance with 50 CFR 424.17, the 
Service is required to publish a final determination or an extension 
within 1 year of the date of the proposed rule. In this case, the final 
rule was published well over a year after the proposed rule; however, 
this was due in part to legislation preventing the Service from issuing 
final rules from April 10, 1995, to October 1, 1995; a near cessation 
of final and other listing actions from October 1, 1995, to April 26, 
1996, due to budget limitations and legislation; and a backlog and lack 
of personnel to complete final rules after April 26, 1996. Although the 
12-month finding/proposed rule and this final rule were not published 
within the allotted timeframes, neither the Act nor the implementing 
regulations at 50 CFR 424 invalidate rules that are published late. The 
Idaho Farm Bureau Federation v. Babbitt court ruling was vacated by the 
U.S. Court of Appeals (Idaho Farm Bureau Federation v. Babbitt, Nos. 
94-35164, 94-35230, U.S. Ct. App. (June 29, 1995). The court held that 
violating the time limit was not a prohibition on listing, but rather, 
that the ``time limits were designed as an impetus to act rather than 
as a bar on subsequent action.'' The court held that because the Act 
specified no consequences to violating the time limit, Congress 
intended to merely compel agency action rather than discard the listing 
process.
    Comment: Several commenters stated that the Service did not provide 
adequate time for the public to comment on the proposed rule. The 
Service violated the Act and the Administrative Procedures Act (APA) by 
not notifying or providing the public with sufficient opportunity to 
comment. The Service also violated both Act and the APA by denying 
public access to materials upon which the proposed rule was based.
    Service Response: Regulations at 50 CFR 424.16(c)(2) require the 
Service to allow a minimum of 60 days for public comment on proposed 
rules. Three comment periods were provided on the proposed rule, 
including a 120-day period from December 12, 1994, to April 11, 1995; 
30 days from May 1 to May 30, 1995; and 34 days from October 10 to 
November 12, 1995; for a total of 184 days.
    Regulations at 50 CFR 424.16(c)(3) require the Service to hold at 
least one public hearing if any person so requests within 45 days of 
publication of a proposed rule. The Service received nine requests for 
a public hearing within the 45-day request period. In response, public 
hearings were held in Tucson, Arizona, and in Weslaco, Texas. 
Additional requests for a public hearing were received more than 45 
days after publication of the proposed rule. Although no additional 
public hearings were conducted, the Service twice reopened the comment 
period to accept additional comments and information.
    In response to requests from the public, and in accordance with the 
Act and its implementing regulations, the Freedom of Information Act 
(FOIA), and the APA, the Service provided copies of documents to 
several members of the public and lent the administrative record for 
copying. Some requests for information were not promptly addressed 
because they were contained within comment letters on the proposed 
rule. In accordance with Service guidance on implementation of Public 
Law 104-6 that halted work on final rules, comment letters were filed 
and not read; thus granting of some information requests was delayed. 
However, the Service did not deny any information requests, with the 
exception of information withheld in accordance with the FOIA.
    Comment: Listing of the pygmy-owl would constitute a violation of 
NEPA because the Service did not analyze the economic impacts of the 
action. Both the letter of the law and interpretive case law require 
the Service prepare NEPA planning documents and submit them for public 
review and input, which the Service did not do.
    Service Response: As discussed in ``National Environmental Policy 
Act'' in this rule, the Service has determined that neither 
environmental assessments nor environmental impact statements need to 
be prepared for proposed or final listing actions.
    Comment: One commenter stated that the notice was irretrievably 
flawed on a legal and technical basis by its use of an obsolete address 
to which comments and requests for public hearings on the proposed rule 
were to be sent. Additionally, this commenter stated that

[[Page 10739]]

comments and materials received were not available for public 
inspection at the old address; therefore, the Service must, by law, 
withdraw the proposed rule.
    Service Response: Between the time the proposed rule was prepared 
and its publication, the Service moved its office within Phoenix, 
Arizona. The proposed rule listed the old address and facsimile number 
(the telephone number was correct in the proposed rule), but cover 
letters to interested parties and newspaper notices soliciting comment 
gave the correct address. The Service received some comment letters 
addressed to the old address; thus, the Post Office was forwarding our 
mail. A recorded phone message at the old phone number also informed 
callers of the new number in the event the old office was contacted. 
The Service is unaware of any comment letters, requests for hearings, 
or requests to inspect records that were returned to the sender.
    In Federal Register notices announcing subsequent comment periods, 
from May 1 to May 30, 1995, and October 10 to November 12, 1995, the 
correct address and phone numbers were published. Because mail was 
forwarded and callers were informed of our new number, cover letters 
and newspaper notices included the correct address, and the latter two 
comment periods totaling 64 days were announced by Federal Register, 
newspaper notices, and cover letters with the correct address and phone 
number, the Service believes the public was provided adequate 
opportunity to provide comment on the proposed rule and inspect 
supporting information.
    Comment: One commenter questioned if agency peer review policy was 
followed and whether the review is effective in weeding out hearsay 
from good science.
    Service Response: The Service requested and/or received comments on 
the proposed rule from a variety of Federal, State, County, and private 
individuals. All parties the Service is aware of with expertise 
regarding the pygmy-owl have obtained copies of the proposed rule, and 
many have commented. All comments have been considered and new 
information was incorporated into this final rule.
    Comment: Some commenters were concerned that the listing of this 
species would unnecessarily restrict public access on Federal lands.
    Service Response: The Service does not foresee restricting access 
on Federal lands based on this listing.
    Issue 8: The Service should not list the species because recovery 
of the species is too costly, puts an unfair burden on land owners in 
the United States, and is not guaranteed. Also listing the species 
would not benefit endangered species protection as a whole.
    Comment: Several commenters stated that money and effort should not 
be given to list a species that the Service was not 100 percent sure 
could be recovered. Another commenter stated that attempting to recover 
a species in a highly-modified and degraded habitat, surrounded by an 
increasingly urbanized environment, creates a cognitive dissonance that 
begs a concise, logical, and irrefutable justification.
    Service Response: Regulations at 50 CFR 424.11(b) require the 
Secretary of the Interior to make decisions on listing based on ``the 
best available scientific and commercial information regarding a 
species' status, without reference to possible economic or other 
impacts of such determination.'' There is nothing in the Act or 
implementing regulations that allows the Service to consider the 
recovery potential of a species in determining whether a species should 
be listed.
    Comment: Without an immediate halt to the urbanization of the 
Phoenix and Tucson metropolitan areas, the potential impacts from such 
limiting factors will only increase in intensity and quite possibly 
negate any positive advances made rehabilitating this habitat.
    Service Response: While the urbanization of the Phoenix and Tucson 
metropolitan areas have resulted in a decline in riparian areas where 
the pygmy-owl was historically found (i.e., the Gila, Salt, Rillito, 
and Santa Cruz rivers, and Canada del Oro Wash), it is not the 
intention of the Act to halt urbanization. In fact, the largest Arizona 
population of pygmy-owls is located in a developed section of Tucson, 
indicating that the pygmy-owl can coexist with certain levels of 
development. The recovery of this, or any other species, will require a 
variety of measures including project review through section 7 
consultation, section 10 Habitat Conservation Plans, and development of 
conservation agreements where possible.
    Comment: One commenter stated that the Service admitted that 70 to 
80 percent of the pygmy-owl's habitat is in Mexico and questioned why 
the landowners in Arizona, Texas, and New Mexico should have to 
sacrifice their land to take care of Mexico's wildlife.
    Service Response: As a point of clarification, the pygmy-owl is not 
known to occur in New Mexico, and this listing action is limited to 
Texas and Arizona. Neither the final rule, proposed rule, nor 
presentations at public hearings referenced the fact that 70 to 80 
percent of the pygmy-owl's habitat is in Mexico, or that less than one-
fifth of its range is in Arizona, and it is unclear what these figures 
are based on. Regardless of these figures, it is important to note 
that, although the Service is concerned with protecting populations in 
Mexico, the immediate concern is for populations within the boundaries 
of the United States. Listing of endangered species is the first of 
many steps, followed by mitigation of threats facing the species, and 
eventual recovery. It is more feasible for the United States Government 
to list, mitigate, and recover a species within our own jurisdiction. 
The Service has noted that we will continue to evaluate the status of 
the species in Mexico. We have not eliminated the possibility of 
cooperating with Mexico in implementing needed protection in that 
country.
    Additionally, the Act does not authorize ``takings'' of private 
lands, and many of the provisions of the Act apply only to Federal 
agencies. Regardless of land ownership, the Act prohibits taking of a 
listed species. It should be noted that, through proper Federal 
actions, cooperation with private landowners, development of 
conservation agreements, and a variety of other measures, landowners 
will not have to ``sacrifice'' any lands to aid in the recovery of the 
pygmy-owl.
    Comment: One commenter stated that listing species has created 
bitterness toward the Act and the Service and that listing species 
would give people a reason to kill endangered species and destroy 
habitat. One commenter recommended the Service not list the pygmy-owl 
because the current political climate would heat up even more against 
conservation and endangered species.
    Service Response: Regulations at 50 CFR 424.11(b) require the 
Secretary of the Interior to make decisions on listing based on ``the 
best available scientific and commercial information regarding a 
species' status, without reference to possible economic or other 
impacts of such determination.'' The Service is aware that there are 
segments of the public that disagree with determinations made; however, 
the Service has no authority to base a listing decision on the possible 
aftereffects of listing.

Summary of Factors Affecting the Species

    Section 4(a)(1) of the Act and regulations (50 CFR Part 424) 
promulgated to implement the listing provisions of the Act set forth 
the

[[Page 10740]]

procedures for adding species to the Federal List of Endangered and 
Threatened Wildlife and Plants. A species may be determined to be 
endangered or threatened owing to one or more of the five factors 
described in Section 4(a)(1) of the Act. These factors and their 
application to the cactus ferruginous pygmy-owl are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The pygmy-owl is threatened by 
past, present, and potential future destruction and modification of its 
habitat, throughout a significant portion of its range in Arizona 
(Phillips et al. 1964, Johnson et al. 1979, Monson and Phillips 1981, 
Johnson and Haight 1985a, Hunter 1988, Millsap and Johnson 1988). The 
severity of habitat loss and threats varies across the pygmy-owl's 
range. Population numbers have been drastically reduced in Arizona, 
which once constituted its major United States range. In Texas, pygmy-
owl populations have experienced significant declines, from the lower 
Rio Grande Valley but persists in oak associations on the coastal plain 
north of the Rio Grande Valley.
    The majority of these losses are due to destruction and 
modification of riparian and thornscrub habitats. It is estimated that 
between 85 and 90 percent of low-elevation riparian habitats in the 
southwestern United States have been modified or lost. These 
alterations and losses are attributed to urban and agricultural 
encroachment, woodcutting, water diversion and impoundment, 
channelization, livestock overgrazing, groundwater pumping, and 
hydrologic changes resulting from various land-use practices (e.g., 
Phillips et al. 1964, Carothers 1977, Kusler 1985, AGFD 1988a, DOI 
1988, General Accounting Office 1988, Jahrsdoerfer and Leslie 1988, 
Szaro 1989, Dahl 1990, State of Arizona 1990, Bahre 1991).
    Status information for pygmy owls in Mexico is very limited, but 
some observations suggest that although habitat loss and reductions in 
numbers are likely to have occurred in northern portions of the two 
subspecies in Mexico, the pygmy-owl persists as a locally common bird 
in southern portions of Mexico. Habitat loss and population status are 
summarized below for the four populations of the pygmy-owl.

Western Populations

    Several habitat types are used by the pygmy-owl in the western 
portion of its range. These include riparian woodlands and bosques 
dominated by mesquite and cottonwood, Sonoran desertscrub (usually with 
relatively dense saguaro cactus forests), and Sinaloan deciduous Forest 
(van Rossem 1945, Phillips et al. 1964, Karalus and Eckert 1974, 
Millsap and Johnson 1988).

1. Arizona

    The northernmost record for the pygmy-owl is from New River, 
Arizona, approximately 55 km (35 mi) north of Phoenix, where Fisher 
(1893) found it to be ``quite common'' in thickets of intermixed 
mesquite and saguaro cactus. Prior to the mid-1900's, the pygmy-owl 
also was described as ``not uncommon,'' ``of common occurrence,'' and a 
``fairly numerous'' resident of lowland central and southern Arizona in 
cottonwood forests, mesquite-cottonwood woodlands, and mesquite bosques 
along the Gila, Salt, Verde, San Pedro, and Santa Cruz rivers, and 
various tributaries (Breninger 1898 in Bent 1938, Gilman 1909, Swarth 
1914). Bendire (1988) noted that he had taken ``several'' along Rillito 
Creek near Fort Lowell, in the vicinity of Tucson, Arizona. The pygmy-
owl also occurs in Sonoran desertscrub associations in southern and 
southwestern Arizona, consisting of palo verde, ironwood, mesquite, 
acacia, bursage, and columnar cacti such as the saguaro and organpipe 
(Phillips et al. 1964, Davis and Russell 1984 and 1990, Monson and 
Phillips 1981, Johnson and Haight 1985a, Johnsgard 1988).
    In the past, the pygmy-owl's occurrence in Sonoran desertscrub was 
apparently less common and predictable. It was more often found in 
xeroriparian habitats (very dense desertscrub thickets bordering dry 
desert washes) than more open, desert uplands (Monson and Phillips 
1981, Johnson and Haight 1985a, Johnson-Duncan et al. 1988, Millsap and 
Johnson 1988, Davis and Russell 1990). The pygmy-owl also was noted to 
occur at isolated desert oases supporting small pockets of riparian and 
xeroriparian vegetation (Howell 1916, Phillips et al. 1964).
    The trend of Sonoran desertscrub habitats and pygmy-owl occupancy 
is not as clear. Historical records from this habitat in Arizona are 
few. This may be due to disproportionate collecting along rivers where 
humans were concentrated, while the upland deserts were less 
intensively surveyed. Johnson and Haight (1985a) suggested that the 
pygmy-owl adapted to upland associations and xeroriparian habitats in 
response to the demise of Arizona's riverbottom woodlands. However, 
conclusive evidence to support this hypothesis is not available. It may 
be that desertscrub habitats simply are of lesser quality and have 
always been occupied by pygmy-owls at lower frequency and density 
(Johnson and Haight 1985b, Taylor 1986). While historical records of 
pygmy-owls do exist for Sonoran desertscrub in areas such as the Santa 
Catalina foothills, they generally note that the birds are rare in 
these areas (Kimball 1921).
    Both riparian and desertscrub habitats are likely to provide 
several requirements of the pygmy-owl ecology. Trees and large cacti 
provide cavities for nesting and roosting. Also, these habitats along 
watercourses are known for their high density and diversity of animal 
species that constitute the pygmy-owl's prey base (Carothers 1977, 
Johnson et al. 1977, Johnson and Haight 1985b, Stromberg 1993).
    The pygmy-owl has declined throughout Arizona to the degree that it 
is now extremely limited in distribution in the State (Davis and 
Russell 1979, Johnson et al. 1979, Monson and Phillips 1981, AGFD 
1988a, Johnson-Duncan et al. 1988, and Millsap and Johnson 1988). 
Riverbottom forests and bosques, which supported the greatest abundance 
of pygmy-owls, have been extensively modified and destroyed by 
clearing, urbanization, water management, and hydrological changes 
(Willard 1912, Brown et al. 1977, Rea 1983, Szaro 1989, Bahre 1991, 
Stromberg et al. 1992, Stromberg 1993). Cutting for domestic and 
industrial fuelwood was so extensive throughout southern Arizona that, 
by the late 19th century, riparian forests within tens of miles of 
towns and mines had been decimated (Bahre 1991). Mesquite was a favored 
species, because of its excellent fuel qualities. The famous, vast 
forests of ``giant mesquites'' along the Santa Cruz River in the Tucson 
area described by Swarth (1905) and Willard (1912) fell to this threat, 
as did the ``heavy mesquite thickets'' where Bendire (1888) collected 
pygmy-owl specimens along Rillito Creek, a Santa Cruz River tributary, 
also in what is now Tucson. Only remnant fragments of these bosques 
remain.
    Cottonwoods also were felled for fuelwood, fenceposts, and for the 
bark, which was used as cattle feed (Bahre 1991). In recent decades, 
the pygmy-owl's riparian habitat has continued to be modified and 
destroyed by agricultural development, woodcutting, urban expansion, 
and general watershed degradation (Phillips et al. 1964, Brown et al. 
1977, State of Arizona 1990, Bahre 1991, Stromberg et al. 1992, 
Stromberg 1993). Sonoran desertscrub has been affected to varying 
degrees by urban and agricultural development, woodcutting, and 
livestock grazing (Bahre 1991).

[[Page 10741]]

    In addition to clearing woodlands, the pumping of groundwater and 
the diversion and channelization of natural watercourses are also 
likely to have reduced pygmy-owl habitat. Diversion and pumping result 
in diminished surface flows, and consequent reductions in riparian 
vegetation are likely (Brown et al. 1977, Stromberg et al. 1992, 
Stromberg 1993). Channelization often alters stream banks and fluvial 
dynamics necessary to maintain native riparian vegetation. The series 
of dams along most major southwestern rivers (e.g., the Colorado, Gila, 
Salt, and Verde) have altered riparian habitat downstream of dams 
through hydrological and vegetational changes, and have inundated 
former habitat upstream.
    Livestock overgrazing in riparian habitats is one of the most 
common causes of riparian degradation (e.g., Ames 1977, Carothers 1977, 
Behnke and Raleigh 1978, Forest Service 1979, General Accounting Office 
1988). Effects of overgrazing include changes in plant community 
structure, species composition, relative species abundance, and plant 
density. These changes are often linked to more widespread changes in 
watershed hydrology (Brown et al. 1977, Rea 1983, GAO 1988), and are 
likely to affect the habitat characteristics critical to the pygmy-owl.
    Hunter (1988) found fewer than 20 verified records of pygmy-owls in 
Arizona for the period of 1971 to 1988. Although pygmy-owls are diurnal 
and frequently vocalize in the morning, the species was not recorded or 
reported in any breeding bird survey data in Arizona (Robbins et al. 
1986). Formal surveys for the pygmy-owl on OPCNM began in 1990, with 
one bird located that year. Beginning in 1992, in survey efforts 
conducted in cooperation with the AGFD, three single pygmy-owls were 
located on the Monument (Fish and Wildlife Service and National Park 
Service, unpubl. data 1992). In 1993, more extensive surveys again 
located three single pygmy-owls in Arizona (AGFD unpubl. data 1993, 
Felley and Corman 1993). During 1993-1994 surveys, one pair of owls was 
detected in north Tucson, near the sightings in 1992 and 1993 (Collins 
and Corman 1995). Two individual owls were found in northwest Tucson 
during 1995 surveys, and an additional owl was detected at OPCNM (Lesh 
and Corman 1995).
    In 1996, the AGFD focused survey efforts in northwest Tucson and 
Marana, and detected a total of 16 birds, two of which were a pair, and 
two of which were fledglings. Three additional pygmy-owls were detected 
on OPCNM in 1996, with three additional, but unconfirmed, reports 
(Harold Smith, National Park Service, OPCNM, in litt. 1996).
    Potential threats to pygmy-owl habitat in Arizona persist. Through 
the public comment period, the Service was made aware of five specific 
housing and development projects operating or in the planning stages 
that would affect habitat where the majority of birds in Arizona 
currently exist. Housing and industrial developments continue to expand 
in the Tucson area, and the northwest portion of the Tucson area is 
experiencing rapid growth. It was estimated that only 60 percent of the 
people living in the Tucson area are within the city of Tucson, even 
though the city limits continue to be expanded to keep up with urban 
expansion (Sierra Club 1988, Duane Shroufe, AGFD, in litt. 1996).
    The AGFD (D. Shroufe, in litt. 1996) estimated that 22,032 hectares 
(ha) (54,400 acres (ac)) of suitable habitat exists in the northwest 
Tucson area, where the majority of birds are found for the western 
population. Surveys completed in 1996 covered 44.2 square km (17.0 
square mi) of this area (Abbate 1996). The AGFD notes that, while 60 
percent of this land is in State Trust or Bureau of Land Management 
(BLM) ownership, much of the land may be subject to development as the 
Town of Marana is developing a general plan for future growth that may 
incorporate these areas. In addition, the BLM is evaluating a proposal 
to exchange all of its land within this area to a developer.
    At OPCNM, potential threats include the increased risk of wildfire 
associated with an invasion of the OPCNM by nonnative grasses such as 
red brome (Bromus tectorum) and buffelgrass (Pennisetum ciliare). 
Sonoran desertscrub is not generally considered fire adapted, and fire 
can lead to loss of saguaros. An additional threat in this area is the 
increasing visitation and through-traffic from the international port 
of entry at Lukeville (H. Smith, in litt. 1996).
    In summary, very few pygmy-owls remain throughout the pygmy-owl's 
historic range in Arizona due to extensive loss of habitat. In 
addition, the remaining pygmy-owl habitat faces numerous and 
significant threats.

2. Western Mexico

    The pygmy-owl occurs in the more arid lower elevations (below 1,200 
m (4,000 ft) elevation) in western Mexico in riparian woodlands and 
communities of thornscrub and large cacti. The pygmy-owl is absent or 
rare in the highlands of Mexico's central plateau (Friedmann et al. 
1950), where the least (G. minutissima) and northern (G. gnoma) pygmy-
owls occur.
    In the mid-20th century, the pygmy-owl was generally described as 
``common'' in western Mexico (van Rossem 1945, Friedmann et al. 1950, 
Blake 1953). Schaldach (1963) considered the pygmy-owl abundant at the 
southern extreme of its range in Colima 30 years ago, and 50 years ago 
the pygmy-owl was considered ``fairly common'' in the lower elevations 
of western Sonora (van Rossem 1945). Current information on the status 
of the pygmy-owl and its habitat in western Mexico is incomplete, but 
suggests that trends vary within different geographic areas. The pygmy-
owl can still be located fairly easily in southern Sonora (Babbitt 
1985, Troy Corman, AGFD, pers. comm. 1994), but its distribution is 
somewhat erratic. Christmas Bird Count data from 1972 through 1995 from 
Alamos, Sonora, and San Blas, Nayarit, indicate that the pygmy-owl is 
common, but detections varied widely from year to year, possibly due to 
variations in the time spent per count and the number of searchers 
participating in the count. The count for Alamos, Sonora never exceeded 
four individuals, and no sightings were recorded in 10 out of 14 years 
(National Audubon Society 1972-1995). In recent years, pygmy-owls have 
been found in abundance in some areas but not detected in other areas 
of apparently similar habitat. Abundance also varies between habitat 
types, being more abundant in thorn forest than cactus forest (Taylor 
1986).
    The pygmy-owl is now rare or absent in northern Sonora, within 241 
km (150 mi) of the United States-Mexico border (Hunter 1988, D. 
Shroufe, in litt. 1996). Extensive conversion of desertscrub and 
thornscrub to the exotic, buffelgrass, for livestock forage is now 
taking place, but quantification is not currently available. It is 
possible that the factors causing declines in Arizona also are 
affecting western Mexico (Deloya 1985, Hunter 1988). The region of 
Sonoita, Mexico, immediately south of OPCNM currently is undergoing 
extensive urban and agricultural development that may result in 
modification or destruction of movement corridors for the pygmy-owl 
between southern Arizona and northern Sonora (H. Smith, in litt. 1996). 
However, further information is needed before determining whether this 
subspecies should be listed in western Mexico.

Eastern Populations

    Several habitat types also are used by the pygmy-owl in the eastern 
portion of

[[Page 10742]]

its range. These include coastal plain oak associations in south Texas 
(Tewes 1993, Wauer et al. 1993), Tamaulipan thornscrub in the lower Rio 
Grande Valley and other lowland areas, and thick forest and second-
growth forest in the Mexican States of Nuevo Leon and Tamaulipas. The 
use of cypress trees by pygmy-owls along the Rio Grande also has been 
noted (Tewes 1993).

1. Texas

    The pygmy-owl's historical range in Texas included the lower Rio 
Grande Valley, where it was considered a common resident of dense 
mesquite, cottonwood-ebony woodlands, and Tamaulipan Brushland (Griscom 
and Crosby 1926, Bent 1938, Friedmann et al. 1950, Stillwell and 
Stillwell 1954, Oberholser 1974, Heintzelman 1979, Hunter 1988, Millsap 
and Johnson 1988). Pygmy-owls also occur in coastal plain oak 
associations between Brownsville and Corpus Christi (Oberholser 1974), 
where it has recently been found in higher numbers than previously 
known (Texas A&M University, in litt. 1993, Wauer et al. 1993, P. 
Palmer, in litt. 1993, Mays 1996, Proudfoot 1996).
    Until recently, formal surveys in Texas were lacking, but pygmy-
owls were reported as occurring generally in two areas: the Rio Grande 
floodplain below Falcon Dam; and along U.S. Highway 77, north of the 
lower Rio Grande Valley. Wauer et al. (1993) note that pygmy-owls have 
been reported almost annually from the Rio Grande floodplain downstream 
of Falcon Dam to the Santa Anna National Wildlife Refuge in Starr and 
Hidalgo counties. Two pygmy-owls were reported below the dam in April 
1993 (ABA 1993). These records generally are for 1 bird or 1 pair of 
birds, with the exception of a report of 10 birds from below the Dam in 
1989 (unpubl. data). More recently, pygmy-owls have been located in 
Kenedy, Brooks and adjacent south Texas counties (Wauer et al. 1993). 
Oberholser (1974) reported birds on the Norias Division of the King 
Ranch as having been discovered in 1968.
    A larger population of birds occurs on the King Ranch and 
surrounding ranches, approximately 112 km (70 mi) north of Brownsville. 
Caesar Kleberg Wildlife Research Institute at Texas A&M University (in 
litt. 1996) states that the most consistently used habitat, of which 
the King Ranch is a part, is a 4,660 square km (1800 square mi) oblong 
area of sandy soils, which support live oak (Quercus virginiana), honey 
mesquite (Prosopis glandulosa), and live oak mottes (small groupings of 
live oaks). Beasom (1993) described this same area, historically known 
as the Wild Horse Desert, as an intrusion of deep, coastal sands that 
protrudes inland for approximately 81 km (50 mi) from the Laguna Madre 
and covers portions of northern Willacy, Kenedy, and Brooks counties. 
This area was recognized as a distinct vegetational region in Texas by 
Blair (1950), who noted that brush in this area thins out as available 
moisture declines inland, and that there was a difference in plant 
composition in this area due to the extensive sand strip.
    Four recent studies have been completed in Texas on the pygmy-owl, 
with three of these focusing on the Norias Division of the King Ranch 
(Tewes 1993, Wauer et al. 1993, Mays 1996, Proudfoot 1996). Tewes 
(1993) conducted a study by contacting individuals with possible 
information on the pygmy-owl, reviewing museum specimen records, and 
conducting a survey. Tewes noted that his contacts believed the most 
accessible pygmy-owls in Texas were those below Falcon Dam in Starr 
County, but noted additional sighting records for other Texas counties 
were fewer and often accompanied by reports of unsuccessful surveys. 
This was true for Hidalgo (four sightings, one unsuccessful search), 
Zapata (one sighting, one unsuccessful search), and Cameron (zero 
sightings, one unsuccessful search) counties.
    Surveys were conducted as part of this study at 27 sites in Mexico 
and 11 sites in Texas, with 12 positive responses noted. However, these 
responses were all in Mexico. Survey efforts in Texas that yielded no 
responses occurred on the Laguna Atascosa and Santa Anna National 
Wildlife Refuges, along Highways 77 and 281, and at the Falcon 
Recreation Area, Kelly Wildlife Management Area, Bentsen State Park, 
and Los Penitas Wildlife Management Area (Tewes 1993).
    Additional survey results from work completed in 1993 found 116 
individual, nonredundant pygmy-owl records on and around the King Ranch 
in mature mixed live oak-mesquite habitats. The highest density of 
birds found in this survey was on the Norias Division of the King Ranch 
(Wauer et al. 1993).
    Mays (1996) also focused study efforts on the Norias Division of 
the King Ranch, and included portions of the Kenedy Ranch, the Encino 
Division of the King Ranch, the Canelo Ranch, and the Runnels Ranch. 
Habitat on the Norias Division is live oak, while the Kenedy Ranch and 
the Encino Division of the King Ranch support live oak-honey mesquite 
woodland. The Canelo Ranch supports honey mesquite woodland, but no 
live oak, as does the Runnels Ranch. Mays recorded 166 responses during 
1994 and 1995 on the King, Kenedy, Canelo, and Runnels ranches. The 
TPWD conducted additional studies during this 2-year period and 
reported three responses on the Mariposa Ranch, and no responses for 
the LaCopa, Cage, and Hopper ranches. During 1995, TPWD sampled but 
recorded no responses for the Mariposa, LaCopa, Cage, Hopper, Los 
Compadres, Singer, Jones, Myrick, Rancho Isabela or Mills Bennett 
ranches.
    Proudfoot (Glenn, pers. comm. 1996) has trapped and banded pygmy-
owls on the Norias Division of the King Ranch, focusing on a 29,000 ha 
(71,393 ac) portion of the King Ranch supporting a live oak-honey 
mesquite forest. This effort resulted in the trapping and banding of 
111 pygmy-owls. It should be noted that there is overlap between work 
completed by Mays and that completed by Proudfoot, so that the number 
of individuals recorded by each are not additive. Of the estimated 
101,250 ha (250,000 ac) of live oak habitat surrounding the King, 
Kenedy, and other nearby ranches, it is estimated that all but a 4,050 
ha (10,000 ac) parcel on one ranch have been surveyed for pygmy-owls 
(G. Proudfoot, pers. comm.).
    While the number of known individuals ranges from 111 (Glenn, pers. 
Comm. 1996) to 166 (Mays, 1996), the estimated population is much 
higher. Mays (1996) estimated between 745 and 1,823 pygmy-owls on the 
Norias Division of the King Ranch alone. Wauer et al. (1993) estimated 
1,308 birds in the habitat available in Kenedy, Brooks, and Willacy 
counties. The Caesar Kleberg Institute of Texas A&M University believes 
that pygmy-owl populations in Texas are viable and probably exceed 
1,300 birds.
    The Service believes that the habitat for pygmy-owls along the 
coastal plain of southern Texas is stable, and may be increasing as 
former grasslands are invaded by oaks and the oaks mature to form the 
structural characteristics favored by pygmy-owls. Further, the habitat 
on the large, privately-owned ranches in this area is largely managed 
for wildlife (e.g., hunting, birding), conversion for agricultural use 
is considered uneconomical and unlikely, and other threats to this 
habitat are low or nonexistent (Caesar Kleberg Wildlife Institute in 
litt. 1996).
    Through the Santa Ana/Lower Rio Grande Valley National Wildlife 
Refuge Complex in Texas, the Service has recently started a Wetlands 
Reserve

[[Page 10743]]

Program with the Natural Resources Conservation Service. Using grant 
monies, the Service will pursue the purchase of easements with willing 
landowners. The focus of the easement agreements will be on habitat 
protection and restoration. Additional tracts of land are being 
evaluated for purchase in river frontage areas in Starr and Hidalgo 
counties. These efforts will result in a corridor of riparian 
woodlands, which may serve as pygmy-owl habitat in the future (L. 
Ditto, pers. comm. 1996).
    In summary, there remains a significant population of pygmy-owls in 
the coastal plain area of Texas, and a substantial amount of habitat 
exists. That habitat is largely managed for wildlife. The economic 
feasibility of conversion to agricultural use makes threats to the 
habitat low or nonexistent. Finally, habitat acquisition and 
rehabilitation underway in the lower Rio Grande Valley should provide 
substantial pygmy-owl habitat. For these reasons, the Service 
determines that the cactus ferruginous pygmy-owl in Texas is not likely 
to become endangered in the foreseeable future throughout all or a 
significant portion of its range. There is not sufficient evidence to 
justify finalizing that portion of the proposed rule.

2. Eastern Mexico

    The pygmy-owl occurs in lowland regions (below 330 m (1,000 ft)) 
along the Gulf Coast of Mexico (Friedmann et al. 1950), in the states 
of Tamaulipas and Nuevo Leon. Its primary habitat in this region is 
Tamaulipan thornscrub, forest edge, riparian woodlands, thickets, and 
lowland tropical deciduous forest (Webster 1974, Enriquez Rocha et al. 
1993, Tewes 1993). The pygmy-owl is absent or rare in the highlands of 
Mexico's central plateau (Friedmann et al. 1950), where the least and 
northern pygmy-owls occur.
    In the mid-20th century, the pygmy-owl was generally described as 
having been common in eastern Mexico (Friedman et al. 1950, Blake 
1953). Current information on the status of the pygmy-owl and its 
habitat in eastern Mexico is incomplete. In 1976, the pygmy-owl was 
reported to be ``fairly common'' in the Sierra Picachos of Nuevo Leon 
(Arvin 1976). In 1991, Tewes located pygmy-owls at 13 of 27 survey 
sites in northeastern Mexico.
    Christmas Bird Count data from 1972 through 1996 from Rancho Los 
Colorados, Rio Corona, and Gomez Farias, all in Tamaulipas, indicate 
the pygmy-owl was common, but detections varied widely from year to 
year, probably due to time spent per count and the number of 
individuals involved in the count effort (National Audubon Society 
1972-1996). Christmas Bird Count data indicated the same for 
ferruginous pygmy-owls at El Naranjo in San Louis Potosi, at the zone 
of probable intergradation between G. b. cactorum and G. b. ridgwayi.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. The pygmy-owl is highly sought by birders who 
concentrate at several of the remaining known locations of pygmy-owls 
in the United States. Limited, careful birding is probably not harmful; 
however, excessive attention by birders may at times harass and affect 
the occurrence and behavior of the pygmy-owl (Oberholser 1974, Tewes 
1993). For example, in early 1993, one of the few areas in Texas known 
to support the pygmy-owl continued to be widely publicized (American 
Birding Association 1993). The resident pygmy-owls were detected at 
this highly-visited area only early in the breeding season and not 
thereafter. O'Neil (1990) also indicated that five birds initially 
detected in southern Texas failed to respond after repeated visits by 
birding tours. Additionally, Oberholser (1974) and Hunter (1988) 
indicated that, in southern Texas, recreational birding may disturb 
owls at highly visited areas.
    C. Disease or Predation. One disease potentially affecting the 
pygmy-owl is trichomoniasis, as identified by the AGFD (D. Shroufe, in 
litt. 1996). Because owls prey on finches, sparrows, and other seed-
eating birds known to carry trichomoniasis, they are at risk of 
contracting the disease. According to Boal and Mannan (1996), raptors 
in urban areas experience a higher exposure rate to trichomoniasis, and 
the result is high mortality of raptor nestlings. No studies have been 
completed to date on the pygmy-owl in urban or other areas to determine 
if, in fact, pygmy-owls have been affected by this disease.
    Recent work by Proudfoot (1996) indicates that snake predation may 
be an additional factor adversely affecting the pygmy-owl population on 
the Norias Division of the King Ranch. Proudfoot noted that nest boxes 
previously containing eggs would later be discovered empty, without 
sufficient time having elapsed to allow for fledging to occur. A lack 
of egg shell remains in nest boxes may indicate that snakes have 
depredated nests containing pygmy-owl eggs. Although long-tailed 
weasels (Mustela frenata) also occur in this study area, the lack of 
egg shell remains and the nest box configuration indicate that weasels 
are not likely to have eaten the eggs. Nest boxes are typically 14 x 14 
x 46 cm (5.5 x 5.5 x 18 in.) with a 5.13 cm (2.0 in.) entrance hole 
placed 31 cm (12 in.) above the box bottom.
    Proudfoot (1996) has observed the indigo snake (Drymarchon corais) 
climbing trees on the King Ranch and notes that the indigo snake is 
known to prey on cavity nesting green-cheeked Amazon parrots (Amazona 
viridigenalis). Proudfoot notes that, from 1993 to 1996, eight out of 
112 available nest boxes (or 232 nest box opportunities) were used. 
Where flashing was placed around trees to prevent the possibility of 
predation by snakes, eggs were not disturbed. For the four nest boxes 
left unprotected, three were depredated before the eggs hatched, while 
one was depredated following hatching. Proudfoot further noted that 
fecundity (the number of young successfully raised per year), for 
natural cavities was approximately one-third that of fecundity for nest 
boxes, and speculates that eggs and birds in natural cavities were 
likely to have been depredated by both snakes and long-tailed weasels, 
resulting in a lower fecundity rate (G. Proudfoot, pers. comm. 1996). 
However, it is unknown what the effect of nest predation is on 
mortality rates of the pygmy-owl population, nor whether predation 
notes are unnaturally high.
    D. The inadequacy of existing regulatory mechanisms. Although the 
pygmy-owl is considered nonmigratory, it is protected under the 
Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712). The MBTA is the 
only direct, current Federal protection provided for the cactus 
ferruginous pygmy-owl. The MBTA prohibits ``take'' of any migratory 
bird. ``Take'' is defined as ``* * * to pursue, hunt, shoot, wound, 
kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, 
wound, kill, trap, capture, or collect.'' However, unlike the Act, 
there are no provisions in the MBTA preventing habitat destruction 
unless direct mortality or destruction of active nests occurs.
    The Federal Clean Water Act contains provisions for regulating 
impacts to river systems and their tributaries. These mechanisms have 
been insufficient to prevent major losses of riparian habitat, 
including habitats occupied by the pygmy-owl.
    The Barry M. Goldwater Range, which overlaps the historical 
distributional range of the pygmy-owl, has an existing policy stating 
that, for any species that have been identified as state or Federal 
species of concern, the range will be inventoried, and potential 
impacts to those species analyzed with other

[[Page 10744]]

information gathered. Projects can then be modified to avoid or 
minimize impacts to the species. The Goldwater Range also has 
identified any habitats that are unique or significant on the range, 
including desert washes, bajadas, and dunes. The Goldwater Range has 
the flexibility to create management plans for any species of concern; 
however, no such policy currently exists for the pygmy-owl.
    The OPCNM, the second major location for pygmy-owls in the State of 
Arizona, provides protection for the pygmy-owl, as it does for all 
other natural and cultural resources. This protection has been compared 
as similar to the takings prohibitions of the MBTA and wildlife taking 
regulations for the State of Arizona (H. Smith, in litt. 1996).
    The State of Arizona lists the ferruginous pygmy-owl (subspecies 
not defined) as endangered (AGFD 1988). However, this designation does 
not provide special regulatory protection. Arizona regulates the 
capture, handling, transportation, and take of most wildlife, including 
G. b. cactorum, through game laws, special licenses, and permits for 
scientific investigation. There are no provisions for habitat 
protection under Arizona endangered species law.
    The State of Texas lists the ferruginous pygmy-owl (subspecies not 
defined) as threatened (TPWD 1978 and 1984). This designation requires 
permits for take for propagation, zoological gardens, aquariums, 
rehabilitation purposes, and scientific purposes (State of Texas 1991). 
Again, however, there are no provisions for habitat protection. The 
TPWD has indicated that they have a Memorandum of Understanding with 
the Texas Department of Transportation (TXDOT), which provides that it 
is the responsibility of TPWD to protect wildlife resources. Under this 
Memorandum, TPWD and TXDOT will coordinate on any project within range 
and in suitable habitat of any State or federally listed threatened or 
endangered species. Additionally, TPWD reviews seismic exploration on 
State lands through coordination with the Texas General Land Office. 
The pygmy-owl is also on the Texas Organization for Endangered Species 
(TOES) ``watch list'' (TOES 1984).
    Most Federal agencies have policies to protect species listed by 
states as threatened or endangered, and some also protect species that 
are candidates for Federal listing. However, until agencies develop 
specific protection guidelines, evaluate their effectiveness, and 
institutionalize their implementation, it is uncertain whether any 
general agency policies adequately protect the pygmy-owl and its 
habitat.
    No conservation plans or habitat restoration projects specific to 
the cactus ferruginous pygmy-owl exist for lands managed by the United 
States Government, Indian Nations, State agencies, or private parties. 
The Forest Service, BLM, and Bureau of Reclamation have focussed some 
attention on modifying livestock grazing practices in recent years, 
particularly as they affect riparian ecosystems. Several of these 
projects are in the former range of the pygmy-owl, including some 
historical nesting locations. In addition, some private landowners in 
southern Texas are accommodating and funding research and have 
expressed an interest in carrying out conservation measures to benefit 
the pygmy-owl.
    In summary, individual owls are protected from taking by one or 
more State and Federal statutes, and some Federal agencies are 
developing programs to protect riparian areas. However, there are 
currently no regulatory mechanisms in place that specifically protect 
pygmy-owl habitat.
    E. Other natural or manmade factors affecting its continued 
existence. Environmental, demographic, and genetic vulnerability to 
random extinction are recognized as interacting factors that might 
contribute to a population's extinction (Hunter 1996). Environmental 
random extinction refers to random events, climate, nutrients, water, 
cover, pollutants, and relationships with other species such as prey, 
predators, competitors, or pathogens, that may affect habitat quality.
    To date, the Service is aware of only one genetic study completed 
on pygmy-owls in the United States. Using toe clippings or blood 
samples, Zink et al. (1996) extracted DNA from pygmy-owls on the Norias 
Division of the King Ranch and from Rio Corona, Tamaulipas, Mexico. 
Data obtained from this study indicate that there is very little 
genetic difference between birds on the King Ranch and those in 
Tamaulipas. The authors concluded that any division between the two 
populations would therefore have occurred recently, likely within the 
last 75 years.
    In addition, the data indicate low levels of genetic variation in 
the pygmy-owls. Populations without genetic variation are often 
considered imperiled due to either the effect of low population 
numbers, increased chance of inbreeding, or both (Soule 1986, Meffe and 
Carroll 1994).
    Pesticides may pose an additional threat to the pygmy-owl where it 
occurs in floodplain areas that are now largely agricultural. 
Jahrsdoerfer and Leslie (1988) note that more than 100 pesticides are 
used on agricultural crops throughout the lower Rio Grande Valley. 
Pesticide application occurs year-round. Because crops, such as cotton, 
are grown repeatedly year after year, an accumulation of resistant 
pesticides may result.
    Pesticide contamination is described as ``widespread'' throughout 
the inland waters of the lower Rio Grande Valley, and includes 
concentrations of DDT, dieldrin, endrin, lindane, endosulfan, Guthion, 
and PCB's which exceeded 1976 EPA criteria for propagation of fish and 
wildlife. Without appropriate precautions, these agents may potentially 
affect pygmy-owls through direct toxicity or effects on their food 
base. No quantitative data on the effects of this potential threat on 
the pygmy-owl are known at this time. While the effects of pesticides 
such as DDT on the reproductive success of other bird species are well 
known, there are no data on whether pesticides are currently affecting 
the pygmy-owl.
    The pygmy-owl nests in cavities excavated by woodpeckers in trees 
or large cacti. Some sources (AGFD 1988) believe that increasing 
competition with exotic European starling (Sturnus vulgaris) for nest 
cavities may be a threat to cavity nesters like the pygmy-owl. 
Starlings were first reported as occurring in Arizona in 1946 (Monson 
1948).
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by this subspecies in relation to the Act's 
definitions of ``endangered'' and ``threatened.'' An endangered species 
is defined as one which is in danger of extinction throughout all or a 
significant portion of its range (section 3(6) of the Act). A 
threatened species is one which is likely to become an endangered 
species within the foreseeable future throughout all or a significant 
portion of its range (section 3(19) of the Act).
    In Arizona, the pygmy-owl exists in extremely low numbers, the vast 
majority of its former habitat can no longer support the species, and 
much of the remaining habitat is under immediate and significant 
threat. The Service thus determines that the cactus ferruginous pygmy-
owl faces imminent extinction and therefore meets the definition of 
endangered under the Act. The Service has determined that the pygmy-owl 
in Texas does not warrant listing as a threatened species. The Service 
will continue to review the status of this subspecies in Mexico.

[[Page 10745]]

Critical Habitat

    Critical habitat, is defined in section 3 of the Act as--(i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection, and; (ii) specific areas outside the 
geographical area which are occupied by a species at the time it is 
listed, upon a determination that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which listing under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 242.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
a species is determined to be endangered or threatened. Critical 
habitat was proposed for the cactus ferruginous pygmy-owl in Arizona in 
the proposed rule. However, because the pygmy-owl has been a sought 
after species for birding enthusiasts, the Service now believes that 
the designation of critical habitat and the subsequent publication of 
location maps and detailed locality descriptions would harm the species 
rather than aid in its conservation. The Service determines that 
designation of critical habitat for the cactus ferruginous pygmy-owl in 
Arizona is not prudent.
    Although the Service is not finalizing the portion of the proposed 
rule to list the Texas population as threatened and critical habitat 
designation is not an issue for that population, the Service is aware 
that the Texas population may be impacted by birding activities, as 
well. However, pygmy-owls in Texas are located on private land, which 
benefits from bird enthusiasts. The Texas population does not face the 
same potential harm or harassment threats as the Arizona pygmy-owls 
occurring on public land because of more limited access to the Texas 
population. Additionally, some areas of private land that allow birding 
excursions may be specifically managed to benefit pygmy owls in Texas.
    As noted in factor B ``Overutilization for commercial, 
recreational, scientific, or educational purposes'' in this rule, the 
pygmy-owl is highly sought by birders concentrating on the remaining 
known localities in the United States. Excessive uncontrolled attention 
by birders may affect the occurrence, behavior, and reproductive 
success of the pygmy-owl. A recently advertised birding excursion in 
southeast Arizona specifically mentions pygmy-owls as a target species. 
The Service feels that although the proposed rule and the proposed 
critical habitat designation contained therein provided maps and 
detailed location descriptions, no new pygmy-owl localities discovered 
since the publication of the proposed rule have been disclosed. Pygmy-
owl locations in Arizona should not be disclosed because of the 
potential for harassment and harm.
    Additionally, the Service is concerned that the publication of 
specific pygmy-owl localities in Arizona would make the species and 
specifically pygmy-owl nests, more vulnerable to acts of vandalism, and 
increase the difficulties of enforcement. Because of the increased 
pressures exerted by birding enthusiasts and the possibility of acts of 
vandalism, the Service believes that conservation of the pygmy-owl is 
better addressed through the recovery process and through the section 7 
consultation process. Designation of critical habitat for the pygmy owl 
in Arizona is not prudent.

Special Rule

    The Service included a proposed special rule under section 4(d) of 
the Act for the proposed threatened pygmy-owl population in Texas. (See 
the proposed rule for a discussion of the proposed special rule). 
However, the Service has determined that the cactus ferruginous pygmy-
owl in Texas does not warrant threatened status and thus the special 
rule is no longer under consideration.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the states and authorizes recovery plans for all 
listed species. The protection required for Federal agencies and the 
prohibitions against taking and harm are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
Part 402. Section 7(a)(4) requires Federal agencies to confer 
informally with the Service on any action that is likely to jeopardize 
the continued existence of a proposed species or result in destruction 
or adverse modification of proposed critical habitat. If a species is 
listed subsequently, Section 7(a)(2) requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of such a species or to 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with the Service.
    The Act and implementing regulations found at 50 CFR 17.21 and 
17.31 set forth a series of general prohibitions and exceptions that 
apply to all endangered and threatened wildlife, respectively. These 
prohibitions, in part, make it illegal for any person subject to the 
jurisdiction of the United States to take (includes harass, harm, 
pursue, hunt, shoot, wound, kill, trap, or collect; or to attempt any 
of these), import or export, ship in interstate commerce in the course 
of commercial activity, or sell or offer for sale in interstate or 
foreign commerce any listed species. It also is illegal to possess, 
sell, deliver, carry, transport, or ship any such wildlife that has 
been taken illegally. Certain exceptions apply to agents of the Service 
and the State conservation agencies.
    Regulations at 50 CFR 17.3 define the terms ``harm'' and ``harass'' 
as used under the Act's definition of ``take.'' ``Harm'' is defined as 
an act which actually kills or injures wildlife. Such acts may include 
significant habitat modification that impairs essential behavioral 
patterns, including breeding, feeding, or sheltering. ``Harass'' is 
defined as an intentional or negligent act or omission which creates a 
likelihood of injury to wildlife by annoying it to such an extent as to 
significantly disrupt normal behavior patterns, including, but not 
limited to, breeding, feeding, or sheltering.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits are at 50 CFR 17.22, 
17.23, and 17.32. Such permits are available for scientific purposes, 
to enhance the propagation or survival of the species, and/or for 
incidental take in connection

[[Page 10746]]

with otherwise lawful activities. For threatened species, there are 
also permits for zoological exhibition, educational purposes, or 
special purposes consistent with the purpose of the Act.
    Service policy published in the Federal Register on July 1, 1994 
(59 FR 34272), requires, to the maximum practicable extent at the time 
a species is listed, identification of those activities that would or 
would not likely constitute a violation of section 9 of the Act. The 
intent of this policy is to increase public awareness of the effect of 
this listing on proposed and ongoing activities within the species' 
range.
    The Service believes that, based on the best available information, 
the following actions will not result in a violation of section 9--
    (1) Clearing of unoccupied habitat;
    (2) Removal of trees within occupied habitat that are not known to 
be used for nesting, and as long as the number removed would not result 
in significant habitat fragmentation or substantially diminish the 
overall value of the habitat;
    (3) One-time or short-term noise disturbance during the breeding 
season;
    (4) Clearing of vegetation in or along previously disturbed areas, 
such as fences or roads;
    (5) Low level flights more than one mile to the side of or greater 
than 300 m (1000 ft) above occupied habitat;
    (6) Grazing, to a level that does not seriously deplete understory 
vegetation.
    Activities that the Service believes could potentially harm, 
harass, or otherwise take the pygmy-owl include, but are not limited 
to--
    (1) Removal of nest trees;
    (2) Removal of a nest box in use by the pygmy-owl;
    (3) Clearing or significant modification of occupied habitat, 
whether or not the nest tree is included;
    (4) Sustained noise disturbance during the breeding season;
    (5) Pursuit or harassment of individual birds;
    (6) Frequent or lengthy low-level flights over occupied habitat 
during the breeding season;
    (7) Severe overgrazing that results in the removal of understory 
vegetation.
    Questions regarding whether specific activities will constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Service's Arizona Ecological Services Field Office (see ADDRESSES 
section). Requests for copies of the regulations concerning listed 
species and general inquiries regarding prohibitions and permits may be 
addressed to the Fish and Wildlife Service, Ecological Services, 
Endangered Species Permits, P.O. Box 1306, Albuquerque, New Mexico, 
87103-1306 (505/248-6282).

National Environmental Policy Act

    The Service has determined that Environmental Assessments and 
Environmental Impact Statements, as defined under the authority of the 
National Environmental Policy Act of 1969, need not be prepared in 
connection with regulations adopted pursuant to section 4(a) of the 
Act. A notice outlining the Service's reasons for this determination 
was published in the Federal Register on October 25, 1983 (48 FR 
49244).

Required Determinations

    The Service has examined this regulation under the Paperwork 
Reduction Act of 1995 and found it to contain no information collection 
requirements. This rulemaking was not subject to review by the Office 
of Management and Budget under Executive Order 12866.

References Cited

    A complete list of all references cited herein is available upon 
request from the Field Supervisor, Arizona Ecological Services Field 
Office (see ADDRESSES section).

    Author: The primary authors of this final rule are Mary E. 
Richardson for Arizona at 602/640-2720 and Bill Seawell for Texas at 
(512/997-9005 (see ADDRESSES section).

Lists of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. Section 17.11(h) is amended by adding the following, in 
alphabetical order under Birds, to the list of Endangered and 
Threatened Wildlife, to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) *  *  *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                   Vertebrate                                                             
------------------------------------------------------                        population where                                    Critical     Special  
                                                          Historic range       endangered or          Status       When listed    habitat       rules   
           Common name              Scientific name                              threatened                                                             
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
              Birds                                                                                                                                     
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Pygmy-owl, cactus ferruginous...  Glaucidium           U.S.A. (AZ, TX),     AZ.................  E                         610           NA           NA
                                   brasilianum          Mexico.                                                                                         
                                   cactorum.                                                                                                            
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 10747]]

    Dated: February 28, 1997.
J.L. Gerst,
Acting Director, Fish and Wildlife Service.
[FR Doc. 97-5788 Filed 3-7-97; 8:45 am]
BILLING CODE 4310-55-P