10730 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

Issued on March 4, 1997.

Ricardo Martinez,

Administrator.

[FR Doc. 97–5723 Filed 3–7–97; 8:45 am]

BILLING CODE 4910–59–C

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.

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 602/640–

2720; facsimile 602/640–2730). For

Texas, William Seawell, U.S. Fish and

Wildlife Service, (telephone 512/994–

9005; facsimile 512/994–8262).

SUPPLEMENTARY INFORMATION:

Background

The cactus ferruginous pygmy-owl

(Order Strigiformes—Family Strigidae)

is a small bird, approximately 17

centimeters (cm) (63⁄4 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 creamcolored belly streaked with reddishbrown. Some individuals are grayish,

rather than reddish-brown. The crown is

lightly streaked, and paired black-andwhite 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 pygmyowl 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
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 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, EnriquezRocha 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 mesquitecottonwood 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 pygmyowl 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 pygmyowl 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.
10732 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

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 pygmyowl 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
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 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 pygmyowl. 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 offroad 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 pygmyowl 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, pygmyowl 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
10734 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

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 pygmyowl’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 pygmyowl’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 pygmyowl 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
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 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 pygmyowl 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
10736 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

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 pygmyowl.

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
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 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 pygmyowl 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 pygmyowl 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 pygmyowls 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
10738 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

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 pygmyowl 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
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 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
10740 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

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 pygmyowl.

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, mesquitecottonwood 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, JohnsonDuncan 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, JohnsonDuncan 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 pygmyowl’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).
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 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 pygmyowl 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
10742 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

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 pygmyowls 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 oakhoney 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 pygmyowl 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
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 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 pygmyowl 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 pygmyowls 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 onethird 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 longtailed 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
10744 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

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 pygmyowls 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 pygmyowls. 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 pygmyowl 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 pygmyowl. 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.
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 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 pygmyowl 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 pygmyowl 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
10746 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

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:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

* * * * * * *

BIRDS

* * * * * * *

Pygmy-owl, cactus

ferruginous.

Glaucidium

brasilianum

cactorum.

U.S.A. (AZ, TX),

Mexico.

AZ .......................... E 610 NA NA

* * * * * * *
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Parts 648 and 649

[Docket No. 970221036–7036–01; I.D.

012797D]

RIN 0648–AJ48

Fisheries of the Northeastern United

States; Framework Adjustments to the

Northeast Multispecies and American

Lobster Fishery Management Plans

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues this final rule to

implement measures contained in

Framework Adjustment 22 to the

Northeast Multispecies Fishery

Management Plan (FMP) and

Framework Adjustment 4 to the

American Lobster FMP. This rule will

close certain areas to specific gear types,

thereby alleviating the gear conflicts in

Southern New England.

EFFECTIVE DATE: March 17, 1997.

ADDRESSES: Copies of Amendment 7 to

the Northeast Multispecies FMP,

Amendment 5 to the American Lobster

FMP, the regulatory impact review and

the initial regulatory flexibility analysis,

its final supplemental environmental

impact statement (FSEIS), and the

supporting documents for Framework

Adjustment 22 to the Northeast

Multispecies FMP and Framework 4 to

the American Lobster FMP are available

from Christopher B. Kellogg, Acting

Executive Director, New England

Fishery Management Council, 5

Broadway, (Route 1), Saugus, MA

01906–1097.

FOR FURTHER INFORMATION CONTACT: Paul

H. Jones, Fishery Policy Analyst, 508–

281–9273.

SUPPLEMENTARY INFORMATION: An

emergency interim rule to the American

Lobster FMP was published on March

27, 1996 (61 FR 13454). This action

implemented a prohibition on mobile

gear vessels fishing in Restricted Gear

Areas I and II, a prohibition on lobster

pot vessels fishing in and lobster pots in

Restricted Gear Area III, and a

requirement that all mobile gear vessels

in Restricted Gear Areas I and II and all

lobster pot (fixed gear) vessels in

Restricted Gear Area III stow their gear

while transiting the restricted gear areas.

This action became necessary after a

New England Fishery Management

Council (Council) and Industrynegotiated voluntary agreement

concerning gear conflicts failed to

resolve the problem.

Regulations implementing

Amendment 8 to the Northeast

Multispecies, Amendment 6 to the

Atlantic Sea Scallop, and Amendment 6

to the American Lobster FMPs became

effective on February 10, 1997 (62 FR

1403, January 10, 1997). The regulations

added to each FMP a list of management

measures from which the Council could

select future solutions to gear conflicts

through the framework adjustment

process. The regulations authorize the

Council to recommend adjustments to

any of the measures currently in the

FMPs.

Framework Adjustment 22 to the

Northeast Multispecies FMP and

Framework Adjustment 4 to the

American Lobster FMP closes four

small, defined areas to fishers using

certain gears during certain times of the

year. Specifically, the action

implements a prohibition on mobile

gear vessels fishing in Restricted Gear

Area I during October 1 through June

15, in Restricted Gear Area IV during

June 16 through September 30, in

Restricted Gear Area II during

November 27 through June 15, and in

Restricted Gear Area III during June 16

through November 26, and a prohibition

on lobster pot vessels fishing in

Restricted Gear Area I during June 16

through September 30, in Restricted

Gear Area II during June 16 through

November 26, and in Restricted Gear

Area III during January 1 through April

30. Vessels may transit these areas

provided that all mobile gear is on board

the vessel while inside these areas.

This action is necessary because

substantial harm and disruption to the

fishery is again occurring through gear

conflicts since the emergency action

expired on June 25, 1996. These

conflicts are occurring because of

increased targeting of monkfish by

mobile gear vessels since the emergency

action and the failure of the Council’s

voluntary industry agreement. The

framework measures build upon the

emergency action and provisions of the

Council’s voluntary industry agreement.

The measures in this rulemaking were

selected from among other options

because they are relatively less

controversial, as evidenced by the near

unanimous support of the Council. The

action is expected to reduce gear

damage and economic loss.

Direct economic losses to individual

lobster vessels from gear loss are

reported by the Council to be as high as

$125,780. As reported to the Council by

eight lobster vessels, the value of lost

gear for a partial season totaled more

than $290,000. There are approximately

50 active lobster vessels fishing within

the gear conflict areas. If the above data

are representative of the fleet, the direct

economic loss as the result of lost gear

was potentially $1.8 million, or more

than $36,000 per lobster vessel.

The value of lobster landings during

October through June, when lobster

vessels move their gear inshore,

averaged more than $8.5 million for

1991–93. Landings data showing the

magnitude of lost fishing opportunity

during 1994 and 1995 are unavailable.

Lobster fishers, however, reported

setting their gear in a severely restricted

band that had a significant effect on

catch per trap. Even if the number of

traps remained constant and catch per

trap only declined 25 percent, the lost

revenue could have totaled more than

$2.1 million. The total estimated

economic loss that could be prevented

by taking this action is, therefore, nearly

$4 million. Furthermore, the action is

consistent with the American Lobster

FMP objectives to minimize social,

cultural, and economic dislocation in

the lobster fishery.

The Council requests publication of

the management measures as a final rule

after considering the required factors

stipulated in the regulations governing

the Northeast multispecies fishery and

the American lobster fishery and

providing supporting analysis for each

factor considered. The Regional

Administrator, Northeast Region,

NMFS, concurs with the Council’s

recommendation and has determined

the framework adjustments should be

published as a final rule.

NMFS is amending the multispecies

and lobster regulations following the

procedure for framework adjustments

codified in 50 CFR parts 648 and 649.

The Council followed this procedure

when making adjustments to the FMPs

by developing and analyzing the actions

at two Council meetings held on August

21–22 and October 2, 1996.

Comments and Responses

The August 21–22, 1996, Council

meeting was the first of two meetings

that provided an opportunity for public

comment on the frameworks. A draft

document containing the proposed

management measures and their

rationale was available to the public

during the second week in August 1996