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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC85

Endangered and Threatened Wildlife and Plants; Determination of

Endangered Status for the Cactus Ferruginous Pygmy-Owl in Arizona

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines endangered

status for the cactus ferruginous pygmy-owl (Glaucidium brasilianum

cactorum) in Arizona, pursuant to the Endangered Species Act of 1973,

as amended (Act). The Service also determines that the cactus

ferruginous pygmy-owl population in Texas does not warrant listing as a

threatened species and is not finalizing that portion of the proposal.

The Service originally proposed to list the cactus ferruginous pygmy-

owl as endangered in Arizona with critical habitat, and threatened in

Texas without critical habitat.

New information was received during comment periods indicating that

population levels are higher in Arizona and Texas than was known at the

time of the proposed rule. This information has been considered in

making this final determination. However, the Service still determines

that the Arizona population warrants endangered status. Conversely, the

new information indicates that listing the species as threatened in

Texas is not warranted. This rule implements the Federal protection and

recovery provisions afforded by the Act for the Arizona population of

this subspecies.

EFFECTIVE DATE: April 9, 1997.

ADDRESSES: The complete file for this rule is available for public

inspection, by appointment, during normal business hours at the U.S.

Fish and Wildlife Service, Arizona Ecological Services Field Office,

2321 West Royal Palm Road, Suite 103, Phoenix, Arizona, 85021-4951.

FOR FURTHER INFORMATION CONTACT: For Arizona, Mary E. Richardson,

Arizona Ecological Services Field Office (see ADDRESSES section)

(telephone 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) (6\3/4\

inches (in)) long. Males average 62 grams (g) (2.2 ounces (oz)), and

females average 75 g (2.6 oz). The cactus ferruginous pygmy-owl is

reddish-brown overall, with a cream-colored belly streaked with

reddish-brown. Some individuals are grayish, rather than reddish-brown.

The crown is lightly streaked, and paired black-and-white spots on the

nape suggest eyes. There are no ear tufts, and the eyes are yellow. The

tail is relatively long for an owl and is colored reddish-brown with

darker brown bars. The call of this diurnal owl, heard primarily near

dawn and dusk, is a monotonous series of short notes.

The cactus ferruginous pygmy-owl is one of four subspecies of the

ferruginous pygmy-owl. It occurs from lowland central Arizona south

through western Mexico, to the States of Colima and Michoacan, and from

southern Texas south through the Mexican States of Tamaulipas and Nuevo

Leon. South of these regions and through Central America, G. b.

ridgwayi replaces G. b. cactorum.

Throughout South America, G. b. brasilianum is the resident

subspecies (Fisher 1893, van Rossem 1937, Friedmann et al. 1950,

Schaldach 1963, Phillips et al. 1964, de Schauensee 1966, Karalus and

Eckert 1974, Oberholser 1974, Johnsgard 1988). Additionally, Konig and

Wink (1995) have identified a fourth subspecies of pygmy-owl from

central Argentina (G.b. stranecki).

The cactus ferruginous pygmy-owl (hereafter ``pygmy-owl'' unless

otherwise noted) was described by van Rossem (1937), based on specimens

from Arizona and Sonora. It is distinguished from G. b. ridgwayi and G.

b. brasilianum by its shorter wings and longer tail, and by generally

lighter coloration (van Rossem 1937, Phillips et al. 1964). G. b.

cactorum occurs in several color phases, with distinct differences

between regional populations (Sprunt 1955, Burton 1973, Tyler and

Phillips 1978, Hilty and Brown 1986, Johnsgard 1988). Some

investigators (e.g., van Rossem 1937, Tewes 1993) have suggested that

further taxonomic investigation may be needed, however, G. b. cactorum

is widely recognized as a valid subspecies (e.g., Friedmann et al.

1950, Blake 1953, Sprunt 1955, Phillips et al. 1964, Monson and

Phillips 1981, Millsap and Johnson 1988, Binford 1989). The American

Ornithologists' Union (AOU) recognized G. b. cactorum in its 1957

Checklist of North American Birds (AOU 1957), but subsequent lists did

not include subspecies (AOU 1983). Based on these authorities, the

Service accepted G. b. cactorum as a subspecies in 1991 (56 FR 58804),

and again in 1993 (58 FR 13045). The Service accepts that there is only

one subspecies (G. b. cactorum) of cactus ferruginous pygmy-owl in

Arizona.

The pygmy-owl nests in a cavity in a tree or large columnar cactus.

Cavities may be naturally formed (e.g., knotholes) or excavated by

woodpeckers. No nest lining material is used. The pygmy-owl also has

nested in fabricated nest boxes (Proudfoot et al. 1994a, Proudfoot

1996). Three, four, five, and occasionally six eggs are laid (Bent

1938, Heintzelman 1979, Glenn Proudfoot, Texas A&M University at Caesar

Kleberg Wildlife Research Institute, unpubl. data 1996) and incubated

for approximately 28 days. The young fledge about 28 days after

hatching. The pygmy-owl begins nesting activities in late winter to

early spring. It is nonmigratory throughout its range (Bendire 1888,

Griscom and Crosby 1926, Oberholser 1974, Johnson et al. 1979). The

pygmy-owl's diverse diet includes birds, lizards, insects, small

mammals (Bendire 1888, Sutton 1951, Sprunt 1955, Earhart and Johnson

1970, Oberholser 1974), and frogs (Proudfoot et al. 1994b).

The pygmy-owl occurs in a variety of subtropical, scrub, and

woodland communities, including riverbottom woodlands, woody thickets

(``bosques''), coastal plain oak associations, thornscrub, and

desertscrub. Unifying habitat characteristics among these communities

are fairly dense woody thickets or woodlands, with trees and/or cacti

large enough to provide nesting cavities. Throughout its range, the

pygmy-owl occurs at low elevations, generally below 1,200 meters (m)

(4,000 feet (ft)) (Swarth 1914, Karalus and Eckert 1974, Monson and

Phillips 1981, Johnsgard 1988, Enriquez-Rocha et al. 1993).

In southern Texas, the pygmy-owl's habitat includes coastal plain

oak associations as well as the Tamaulipan thornscrub of the lower Rio

Grande Valley region, which consists of mesquite (Prosopis glandulosa),

hackberry (Celtis spp.), oak (Quercus spp.), and Texas ebony

(Pithecellobium ebano) (Griscom and Crosby 1926, Bent

[[Page 10731]]

1938, Oberholser 1974, Tewes 1992, Wauer et al. 1993). In northeastern

Mexico it occurs in lowland thickets, thornscrub communities, riparian

woodlands, and second-growth forest (van Rossem 1945, AOU 1983,

Enriquez-Rocha et al. 1993, Tewes 1993). In central and southern

Arizona the pygmy-owl's primary habitats were riparian cottonwood

(Populus spp.) forests, mesquite bosques, and Sonoran desertscrub, but

the subspecies currently occurs primarily in Sonoran desertscrub

associations of palo verde (Cercidium spp.), bursage (Ambrosia spp.),

ironwood (Olneya tesota), mesquite (Prosopis juliflora), acacia (Acacia

spp.), and giant cacti such as saguaro (Cereus giganteus), and

organpipe (Cereus thurberi) (Gilman 1909, Bent 1938, van Rossem 1945,

Phillips et al. 1964, Monson and Phillips 1981, Johnson-Duncan et al.

1988, Millsap and Johnson 1988). In northwestern Mexico the pygmy-owl

occurs in Sonoran desertscrub, Sinaloan thornscrub, and Sinaloan

deciduous forest as well as riverbottom woodlands, cactus forests, and

thornforest (Enriquez-Rocha et al. 1993).

The available information indicates that distinct eastern and

western populations of the pygmy-owl are definable. The pygmy-owl

occurs along the lower Rio Grande and the coastal plain of southern

Texas and northeastern Mexico. It also occurs in lowland areas of

northwestern Mexico and southern Arizona. The pygmy-owl's elevational

distribution, the distribution of habitat, and recorded locations

indicate that these eastern and western ranges of the pygmy-owl are

geographically isolated from each other and are ecologically distinct.

In the United States, eastern and western portions of the pygmy-owl's

range are separated by the basin-and-range mountains and intervening

Chihuahuan Desert basins of southeastern Arizona, southern New Mexico,

and western Texas. The pygmy-owl has never been recorded in this 805

kilometer (km) (500 mile (mi)) wide area (Bailey 1928, Phillips et al.

1964, Oberholser 1974, Sartor O. Williams, New Mexico Department of

Game and Fish, in litt. 1991).

In Mexico, the eastern and western populations are separated by the

highlands of the Sierra Madre Oriental and Occidental, and the Mexican

Plateau. The pygmy-owl is considered rare on the Mexican Plateau at/or

above elevations of 1,200 m (4,000 ft) on the west, and above 300 m

(1,000 ft) on the east (Friedman et al. 1950). Some sources describe

the eastern and western ranges as contiguous at the southern end of its

range, near the southern end of the Mexican Plateau in central Mexico

(Johnsgard 1988). Other sources describe these two ranges as disjunct

(Burton 1973). In his description of the subspecies, van Rossem (1937)

found that Texas specimens exhibited characteristics of both G. b.

cactorum and G. b. ridgwayi. Ultimately, he did not assign Texas

ferruginous pygmy-owls to G. b. cactorum, but noted that Ridgeway

(1914, in Van Rossem 1937) considered them distinct from G. b.

ridgwayi, and left the taxonomy of Texas pygmy-owls to be G. b.

cactorum (e.g., Oberholser 1974, Millsap and Johnson 1988).

In addition to geographic separation, the pygmy-owl's eastern and

western populations occupy different habitats. Although some broad

similarities in habitat physiognomy are apparent (e.g., dense woodlands

and thickets), floristically, these eastern and western habitats are

very dissimilar. The desertscrub and thornscrub associations in Arizona

and western Mexico are unlike any habitats occupied by the pygmy-owl in

eastern Mexico and southern Texas. Also, the oak association habitat

occupied on coastal plains in southern Texas is unlike any habitat

available in the western portion of the pygmy-owl's range. However, the

Tamaulipan thornscrub habitat of the east and the riverbottom mesquite-

cottonwood bosque habitat in Arizona are more similar in physiognomy

and to a slight degree in floristic makeup.

The potential for genetic distinctness further supports a

distinction between eastern and western pygmy-owl populations. The fact

that the pygmy-owl is nonmigratory throughout its range suggests that

genetic mixing across wide areas may be infrequent. In addition,

considerable variation in plumage between regional populations has been

noted, including specific distinctions between Arizona and Texas pygmy-

owls (van Rossem 1937, Burton 1973, Tyler and Phillips 1978, Johnsgard

1988).

These eastern and western populations of the pygmy-owl may be

considered separately for listing under the Act. The Act defines

``species'' as any subspecies . . . and any distinct population segment

of any species of vertebrate which interbreeds when mature (section

3(16)). Further, the Service's policy on vertebrate population segments

(61 FR 4722) requires that, to be a listable entity under the Act, the

population be ``discrete'' and significant. A population segment is

``discrete'' if it is markedly separated from other populations of the

same taxon as a consequence of physical, physiological, ecological, or

behavioral factors. A population also can be considered ``discrete'' if

it is delimited by international boundaries across which exist

differences in management control of the species. The above information

indicates that eastern and western populations of the cactus

ferruginous pygmy-owl are distinct based on geographic isolation,

distribution and status of habitat, and potential morphological and

genetic distinctness.

A population segment is considered ``significant'' if its loss

would constitute a significant gap in the range of the taxon. The above

criteria lead the Service to consider the four separate populations of

G. b. cactorum for listing purposes--western United States (Arizona),

eastern United States (Texas), western Mexico, and eastern Mexico to be

both discrete and significant. The Service herein proposes separate

actions for these various population segments because the levels of

threat, habitats occupied, quality of information, and overall status

differ among these four populations.

Previous Federal Action

The Service included the pygmy-owl on its Animal Notice of Review

as a category 2 candidate species throughout its range on January 6,

1989 (54 FR 554). After soliciting and reviewing additional

information, the Service elevated G. b. cactorum to category 1 status

throughout its range on November 21, 1991 (56 FR 58804). A category 1

species was, at that time, defined as a species for which the Service

had on file substantial information to support listing, but for which a

proposal to list had not been issued as it was precluded by other

listing activities. The Service has since discontinued the practice of

maintaining a list of species regarded as ``category 1'' or ``category

2'' candidates. Candidates are now considered only those species for

which the Service has on file sufficient information to support

issuance of a proposed listing rule (61 FR 64481).

Based on an extensive review of information on the subspecies, the

Service has determined that it is now appropriate to list the Arizona

population as endangered, not to finalize the proposed listing in

Texas, and to continue reviewing the pygmy-owl in Mexico to determine

whether Mexican populations should be proposed for listing. Recent

information from Mexico indicates that the subspecies may be more

abundant, at least in the southern portion of its range, than

originally thought.

[[Page 10732]]

On May 26, 1992, a coalition of conservation organizations (Galvin

et al. 1992) petitioned the Service requesting listing of the pygmy-owl

as an endangered subspecies under the Act. The petitioners also

requested designation of critical habitat. In accordance with Section

4(b)(3)(A) of the Act, on March 9, 1993, the Service published a

finding that the petition presented substantial scientific or

commercial information indicating that listing may be warranted, and

initiated a status review on the pygmy-owl (58 FR 13045). In conducting

its status review, the Service solicited additional comments and

biological data on the status of the cactus ferruginous pygmy-owl

through mailings, a notice in the Federal Register (58 FR 13045), and

other means.

Section 4(b)(3)(B) of the Act requires the Secretary of the

Interior to determine whether listing a petitioned species is warranted

within 12 months of the petition's receipt (16 U.S.C. S 1531 et seq.).

On December 12, 1994, the Service published a 12-month finding on the

petitioned action (59 FR 63975). This finding indicated that listing of

the cactus ferruginous pygmy-owl was warranted and a proposed rule was

published on the same date to list the pygmy-owl as endangered in

Arizona with critical habitat and as threatened in Texas without

critical habitat.

The processing of this final rule conforms with the Service's final

listing priority guidance published on December 5, 1996 (61 FR 64475).

The guidance clarifies the order in which the Service will process

rulemakings during fiscal year 1997. The guidance calls for giving

highest priority to emergency listings (Tier 1) and the second highest

priority (Tier 2) to finalizing proposed listings. This final rule

falls under Tier 2. At this time there are no pending Tier 1 actions.

Summary of Comments and Recommendations

In the December 12, 1994, proposed rule (59 FR 63975) and

associated notifications, all interested parties were requested to

submit factual reports or information that might contribute to

development of a final rule. The original comment period closed April

11, 1995, then was reopened from May 1, 1995, to May 30, 1995 (60 FR

19013), and again from October 10, 1996, to November 12, 1996 (60 FR

53187).

Appropriate State agencies and representatives, County and City

governments, Federal agencies and representatives, scientific

organizations, and other interested parties were contacted and

requested to comment. Newspaper/media notices inviting public comment

were published in the following newspapers--in the State of Arizona,

the Indian Country Today, the Tucson Citizen, the Arizona Republic, the

Arizona Silver Belt, the Green Valley News/Sun, and the Eastern Arizona

Courier; and for the State of Texas, in the Laredo Morning Times, the

Corpus Christi Caller-Times, the Valley Morning Star, the Monitor, and

the Brownsville Herald. The inclusive dates of publications were

January 6-18, 1995, for the initial comment period; and April 21-26 and

October 15-30, 1995, for the first and second extensions of the comment

period, respectively.

In response to requests from the public, the Service held two

public hearings. Notices of hearing dates and locations were published

in the Federal Register on April 14, 1995 (60 FR 19013). Appropriate

State agencies and representatives, County and City governments,

Federal agencies and representatives, scientific organizations, and

other interested parties were contacted regarding the hearings.

Approximately 300 people attended the hearing in Tucson, Arizona and

approximately 30 people attended the hearing in Weslaco, Texas.

Transcripts of these hearings are available for inspection (see

ADDRESSES section).

A total of 123 written comment letters were received at the

Service's Ecological Services Field Office in Phoenix, Arizona--30

supported the proposed listing; 1 supported the proposed listing in

Arizona only; 1 supported the proposed listing in Texas but was opposed

to listing in Arizona; 8 opposed the proposed listing; 14 opposed the

proposed listing and proposed critical habitat; 45 opposed only the

proposed critical habitat; and 24 either commented on information in

the proposed rule but stated neither support nor opposition, provided

additional information only, or were nonsubstantive or irrelevant to

the proposed listing.

Oral comments were received from 20 parties at the hearings.

Written comments received at the hearings or given to Service

representatives prior to the hearings are included within the

discussion above. Of the oral comments at the hearings, 3 supported the

proposed listing; 4 opposed the proposed listing; and 9 expressed

neither support nor opposition, provided additional information only,

or were nonsubstantive or irrelevant to the proposed listing.

In total, oral or written comments were received from 15 Federal

and State agencies and officials, 11 local officials, and 126 private

organizations, companies, and individuals. All comments, both oral and

written, received during the comment period are addressed in the

following summary with the exception of those pertaining to finalizing

critical habitat and the proposed special rule. In accordance with the

Service's published listing priority guidance, finalizing critical

habitat is of the lowest priority and would only be addressed upon the

completion of higher priorities. All comments regarding critical

habitat will remain on file with the Service. Since the Service is not

finalizing the proposed listing of the pygmy-owl as threatened in

Texas, the associated proposed special rule and comments regarding it

are now moot. Comments of a similar nature are grouped into a number of

general issues. These issues and the Service's responses are discussed

below.

Issue 1: Other processes, especially conservation agreements in

lieu of listing, could be more effective at protecting these species,

and would impose fewer regulations and restrictions on land use as

compared to Federal listing.

Comment: One commenter asked what local, City, and County officials

the Service had coordinated with on this action.

Service Response: The Service has maintained an active mailing list

that includes local, City, and County officials, as well as State and

Federal officials and private individuals who have expressed an

interest in the pygmy-owl listing process. We have provided copies of

Federal Register notices, including those announcing public hearing

dates, throughout the listing process to individuals on this mailing

list. Numerous local, City, County, State, and Federal agencies

provided comments during open comment periods, and these comments have

been considered in developing the final recommendation for this listing

action. The administrative record is available for review, by

appointment, during normal business hours (see ADDRESSES section).

Comment: Several commenters recommended doing conservation

agreements in lieu of listing.

Service Response: The Service does not believe that a conservation

agreement, sufficient to preclude listing in Arizona, is feasible at

this time because of the extremely small population size and the

numerous threats faced by the species. However, it should be noted that

listing of the species does not preclude the future development of

habitat conservation

[[Page 10733]]

plans or other conservation agreements with private individuals or

agencies.

Comment: Several commenters understood that the Director of the

Service has said that states should take the lead on matters of

sensitive species, and therefore, the Service should follow its policy

and let the states take the lead in addressing the habitat needs of the

pygmy-owl and not list it.

Service Response: The Service is required to follow the provisions

of the Act, and in regard to this action, its implementing regulations

on listing in 50 CFR 424. Section 4(a) of the Act clearly assigns the

responsibility of making listing decisions to the Secretaries of the

Interior and Commerce. However, in making those decisions, the

Secretaries are required to take into account conservation actions

(section 4(b)(1)(A)), notify and invite comment from states, counties,

and others on the proposed rules (section 4(b)(5)), hold one public

hearing on the proposed rule, if requested (section 4(b)(5)(E)), and

take other steps to ensure that the concerns of local governments,

citizens, and others are considered in the listing decision. The

Service has complied with all these requirements for listing the pygmy-

owl.

The Service recognizes that unless preempted by Federal authority,

states possess primary authority and responsibility for protection and

management of fish, wildlife, and plants and their habitats. The

Service has and will continue to solicit and utilize the expertise and

information provided by the states. The Service will work closely with

residents and officials in the management and recovery of the pygmy-

owl. The Service invites others to work with us on voluntary

conservation programs as well.

Issue 2: Economic, social, and cultural impacts of listing need to

be evaluated and considered in the listing process.

Comment: Several commenters requested that the Service study the

indirect and direct economic, social, and/or cultural costs and effects

of listing the pygmy-owl. Concern was expressed that listing of the

species would affect use and value of private property, use of areas of

agricultural concern, new construction, trade and landowner rights,

minorities, and off-road tour companies. Concern also was expressed

that there would be no land owner compensation from the effects of

listing. Some commenters stated that the results of this analysis

should be weighed with threats, status, and other listing factors in

determining whether these species should be listed.

Service Response: 50 CFR 424.11(b) requires the Secretaries of the

Interior and Commerce to make decisions on listing based on ``the best

available scientific and commercial information regarding a species'

status, without reference to possible economic or other impacts of such

determination.'' The Service is required to solicit comments from the

public on proposed listings and consider those comments in final

decisions (50 CFR 424.16), as we have done here. The Service does not

have the authority or a regulatory mandate to conduct impact analyses

on listing decisions, provide compensation to affected landowners, or

take other actions outside of its authority.

Comment: Several commenters were concerned that the increased cost

and delay associated with projects affected by the proposed rule will

cause unreasonable consequences for future developments and/or needed

public improvement projects.

Service Response: Any discretionary action funded, carried out, or

authorized by a Federal agency that may affect a listed species would

be subject to the section 7 consultation process. If a Federal agency

is involved in developments and/or needed public improvement projects,

it would need to evaluate its actions and possible effects on listed

species. The Service is required to deliver a biological opinion, which

concludes consultation, to the action agency within 135 days of receipt

of a request for consultation (50 CFR 402.14(e)). If the action agency

incorporates consultation into their planning process and consultation

is initiated early, project delays are unlikely. Some additional costs

may accrue resulting from meetings with the Service, preparation of

documents, and implementation of any reasonable and prudent

alternatives or measures in the biological opinion. Private actions

that do not require Federal funds, actions, or authorization, such as a

private individual building a house with private funds, are not subject

to section 7.

Comment: Another commenter stated that the proposed listing of the

pygmy-owl was an attempt to take property rights away from land owners,

to gain more power, to increase personnel, and to control all of the

rivers, creeks, washes, and water in the country.

Service Response: The purpose of this listing is to extend the

protection of the Act to the pygmy-owl. This protection does not

authorize the Service to increase personnel or assert jurisdiction over

water rights, and the Service does not anticipate significant impacts

to local economies or to the well-being of citizens. The listing of the

pygmy-owl does not, in itself, restrict groundwater pumping or water

diversions, does not in any way limit or usurp water rights, or violate

State or Federal water law. Through section 7 consultations, extraction

or use of water that is funded, carried out, or authorized by Federal

agencies that might adversely affect the pygmy-owl could be modified

through reasonable and prudent measures or alternatives in a biological

opinion, pursuant to 50 CFR 402.14 (h) and (i).

As described in ``Available Conservation Measures'' section, with

the promulgation of this rule, Federal agencies will be required to

comply with section 7 of the Act to ensure their activities do not

jeopardize the continued existence of these species. Compliance with

section 7 or other provisions of the Act has never resulted in the

wrongful taking of property. The Service does not envision a regulatory

scenario that would result in such actions.

Issue 3: Information presented in the proposed rule was

insufficient to support listing or was in error.

Comment: The pygmy-owl warrants an endangered listing in Texas, as

opposed to threatened. The species has declined throughout a

significant portion of its range in Texas and is now rare, significant

threats continue to exist within that state and habitat continues to be

low, and future threats to habitat in Texas are significant due to

increasing human population near the border with Mexico.

Service Response: In Texas, the threats to the species are less

prevalent than in Arizona. The Service does not believe listing is

warranted at this time. Further discussion of the Service's decision

not to finalize the listing proposal in Texas is discussed in the

``Summary of Factors Affecting the Species'' section, and elsewhere in

this final rule.

Comment: Routine ranching activities have contributed to the

decline of the species in Texas, yet the Service asserts that ``present

land management by private (Texas) landowners is generally compatible

with the well-being of the owl.'' This assertion cannot be squared with

all the evidence indicating that the pygmy-owl is in grave danger of

extinction in Texas.

Service Response: In Texas, pygmy-owl records are from two distinct

areas. The first area is along the Rio Grande. Agricultural activities

have historically resulted in clearing of 95 percent of the native

Tamaulipan brushland in this area, as noted in the proposed rule. The

second area is north of the Rio Grande Valley, in and around Kenedy

County. The owls in these areas occupy coastal oak associations. As

noted in this document, impacts to these areas are

[[Page 10734]]

lesser, with only limited oak clearing occurring. It is the land

management by private landowners in the coastal oak association that is

considered generally compatible with the well-being of the pygmy-owl.

It is in these areas that the Service anticipates developing

conservation agreements with private landowners to ensure conservation

of the species.

The Service also will consider developing conservation agreements

with willing landowners in the Rio Grande Valley. However, the Service

believes that the ongoing establishment of native vegetation along the

Rio Grande, as implemented by the Service's National Wildlife Refuge

System, holds the most promise for conserving the species in the Rio

Grande Valley.

Comment: Several commenters stated that Arizona and Texas represent

the northern edge of the pygmy-owl's distribution and that most species

are uncommon or of marginal occurrence at the edges of their range.

Service Response: The Service agrees that Arizona and Texas

represent the northernmost portion of the pygmy-owl's range. However,

we believe the information reviewed and discussed in the final rule

indicates that pygmy-owls occurred in higher numbers in Arizona and

Texas in the past, and that loss of habitat and other factors have led

to their decline. The continued presence of birds in Arizona, including

those that are successfully reproducing, indicates a persistent

population. In addition, there is a significant population of nesting

birds in Texas. The Service believes that listing the Arizona

population at this time is necessary to prevent extirpation of the

species from that portion of its range within the United States.

Comment: Several commenters claimed that the Service misrepresents

the work of all nine authors it cites in support of its three

subspecies claim. Not one of these authors cited by the Service

discusses three subspecies of this owl.

Service Response: The use of the scientific name Glaucidium

brasilianum cactorum in and of itself indicates recognition of a

subspecies. Of the authors cited in the proposed and final rules on the

discussion of taxonomy, van Rossem (1937), Friedmann et al. (1950),

Sprunt (1955), AOU (1957), Schaldach (1963), Karalus and Eckert (1974),

Johnsgard (1988), and Millsap and Johnson (1988) use G. b. cactorum in

referencing the pygmy-owl. The leading authority on bird taxonomy, the

AOU, recognized the cactus ferruginous pygmy-owl as a subspecies in its

1957 publication. As noted in the proposed rule and this and final

rule, subsequent publications of the AOU have not addressed any

subspecies, including that of the pygmy-owl.

Comment: Several commenters stated that the Service's analysis of

the pygmy-owl's habitat preferences was flawed. They questioned whether

deciduous riparian woodland is the preferred habitat for the pygmy-owl,

and stated that their presence in Sonoran desertscrub is uncommon to

rare and unpredictable. It also is possible that the apparent ``shift''

from riparian areas to upland areas closely correlates with the

increase in woody brush in Arizona's grasslands that occurred

throughout the central and southern portions of the State after the

advent of cattle grazing in the late 1800's and early 1900's. There

actually may be more suitable habitat now than in historic times when

the riparian areas represented the only brushy habitat in what was

otherwise primarily a desert grassland setting. Based on its erroneous

assumption that the pygmy-owl prefers riparian habitats, the Service

has focused its analysis on such habitats and not provided a discussion

of threats to other habitat types.

Service Response: The proposed rule noted that the majority of the

historical records came from along waterways such as the Rillito or

Santa Cruz rivers, but also noted that Sonoran desertscrub provided

suitable habitat for the pygmy-owl in central and southern Arizona. As

noted within this final rule, naturalists collecting specimens have

indicated that the pygmy-owl was rare in Sonoran desertscrub (see

references to Kimball 1921, Johnson and Haight 1985, and Taylor 1986

within the text of the final rule). Since publishing the proposed rule,

additional birds were found in Arizona, and the text within this final

rule has been adjusted accordingly. The majority of the birds in the

Arizona population occur in Sonoran desertscrub habitat.

While there may be more ``woody brush'' in Arizona today as a

result of cattle grazing, not all of this vegetation is suitable pygmy-

owl habitat. The pygmy-owl is known to occur in Sonoran desertscrub

where that desertscrub is particularly dense and supports either

saguaro cactus, organ pipe cactus, or mesquites of sufficient size for

cavity nesting. In those Sonoran desertscrub areas where the pygmy-owl

has been found in the last few years, a density of understory

vegetation is also present. Surveys have occurred in areas known to

support this vegetation, with negative results in some instances.

This final rule includes modifications to language in the proposed

rule to indicate that pygmy-owls historically and currently use Sonoran

desertscrub within the State of Arizona. The proposed rule also was

modified to include language on the threats to this Sonoran desertscrub

habitat, which are primarily from urban development.

Comment: One commenter stated that endangerment of the pygmy-owl in

the Verde River area is due to the absence of federally placed signs,

patrols, and follow-ups on shooting incidents.

Service Response: There are no known current records of pygmy-owls

in the Verde River area and the Service is unaware of any shooting

incidents that involved the pygmy-owl. The Service does not believe

that posting of signs and conducting patrols in this area would benefit

the owl at this time. Currently, with the exception of a few birds

located on Organ Pipe Cactus National Monument (OPCNM), the pygmy-owl

occurs on private land, and it is not within the Service's authority to

place signs or conduct patrols on private property.

Comment: Some commenters suggested that the pygmy-owl is not in

danger of extinction in all or a significant part of its range and that

the Service overstates the threats to the species. The Service has

failed to present any evidence of a particular threat to the pygmy-owl

that has suddenly arisen and that is likely to lead to extinction

unless curtailed. One commenter stated that the Service failed to

establish that the removal of riparian forests and the diversion and

channelization of natural watercourses, and pumping groundwater may

also cause the diminishment of the species. One commenter claimed the

Service overstates the effects of groundwater pumping and surface water

diversions upon particular species of wildlife, and fails to

distinguish among such water uses. Some commenters claimed the Service

did not support assertions of habitat loss from traditional,

historical, public and private land uses with reference to any

scientific facts. One commenter asserted that there is no threat of

destruction, modification, or curtailment of habitat.

Service Response: The Service does not believe that the threat to

this species or its habitat in Arizona has been overstated. As noted

within this final rule, the Service must evaluate the best scientific

and commercial information available and determine if the proposal

meets the definition of endangered or threatened based on any of the

five listing factors. The Service completed this evaluation and finds

that the pygmy-owl in Arizona meets the definition of endangered, owing

to three

[[Page 10735]]

of the five factors, namely the present or threatened destruction,

modification, or curtailment of its habitat or range, the inadequacy of

existing regulatory mechanisms, and other natural or manmade factors

affecting its existence.

The historic loss of riparian habitat in Arizona is well

documented. Because of the current location of the largest known

Arizona pygmy-owl population and pending developments in this key area,

the Service believes that imminent threats have been identified. The

factors related to this listing are provided in detail in the final

rule under the ``Summary of Factors Affecting the Species'' section.

In response to the comment that the Service failed to establish

that the removal of riparian forests, and the factors that cause it,

also may cause the diminishment of the species, the Service notes that

a variety of activities has been responsible for the loss of riparian

habitat in the State of Arizona. Through historic records, the pygmy-

owl is noted to have occurred in riparian areas prior to the mid-1900's

and was described as a ``common,'' ``abundant,'' ``not uncommon,'' and

``fairly numerous'' resident of lowland central and southern Arizona in

cottonwood forests, mesquite-cottonwood woodlands, and mesquite bosques

along the Gila, Salt, Verde, San Pedro, and Santa Cruz rivers, and

various tributaries. We believe, therefore, the statement is justified

that the loss of riparian habitat has led to its decline. Numerous

authors were cited with respect to this statement, and their names are

provided in the final rule. Should all or a significant portion of the

habitat within the range of a given species be removed or altered,

diminishment of the species is not an unlikely result. The Service

believes the link between habitat loss and the decline of the pygmy-owl

has been made in the text of this final rule. The Service believes that

the assertions of habitat loss from traditional, historical, public,

and private land uses are well documented within the final rule under

the section ``Summary of Factors Affecting the Species,'' particularly

that section under the ``Western Populations'' subsection.

Comment: Several commenters suggested that no evidence exists to

support the statement that the pygmy owl is declining, and others noted

that the listing of a species should be based upon something more than

the rarity of that species in a particular part of the United States.

Service Response: The Service has completed a review of available

literature and believes that the information indicates that there has

been a decline of the species in both Arizona and Texas. However, the

Service does not believe the pygmy owl's decline is significant enough

in Texas to warrant listing the species as threatened.

As discussed in the final rule, the pygmy-owl was described as a

``common,'' ``abundant,'' ``not uncommon,'' and ``fairly numerous''

resident of lowland central and southern Arizona, in riparian habitat

along numerous drainages prior to the mid-1900's. In most instances,

observations of pygmy-owls were made during site visits where the

author was documenting all species observed over a given area, without

focusing on the pygmy-owl. In contrast, Hunter (1988) found fewer than

20 verified records of pygmy-owls in Arizona for the period of 1971 to

1988, and recent survey efforts, focusing specifically on pygmy-owls,

have located a total of 19 individuals at the highest, with most annual

survey results being 2 to 3 birds.

It should be noted that there are five listing factors, as detailed

in the text of this rule. While the pygmy-owl could be called rare, and

while the Service believes the decline in numbers of individual birds

to be an important piece of information, the recommendation to add the

pygmy-owl in Arizona to the endangered species list was based on an

analysis of the five listing factors.

Comment: Even the few reports that the Service did examine with

respect to historic abundance were reported incorrectly or were not

found in the Service files.

Service Response: Coues (1872) has been removed as a reference from

that section of the listing that addresses species abundance in the

early 1900's. However, the Service has verified that the remainder of

the literature citations (Bendire 1888, Fisher 1893, Breninger 1898 in

Bent 1938, Gilman 1909, Swarth 1914) were correctly quoted. All

literature cited within this final rule is on file at the Service's

Arizona Field Office (see ADDRESSES section).

It is important to note that, while the Service believes the number

of birds has declined, the decision to list the pygmy-owl does not

depend entirely on population trends of the pygmy-owl. It also is

necessary to assess current threats to the remaining birds, through

evaluation of the five listing factors. If this evaluation indicates

that the number of birds known to currently occur in Arizona and Texas

are under sufficient threat to cause them to be in danger of extinction

or endangerment, the Service must make the decision to list the

species. As outlined in this final rule, the Service believes analysis

of the best scientific and commercial data indicates that the pygmy-owl

is threatened with extinction in Arizona and warrants listing as an

endangered species.

Comment: Not a single source listed by the Service ever conducted

any analysis that would allow one to conclude that 90 percent of the

riparian areas have been lost or modified. The fact that the Service

presents an unfounded conclusion as scientific fact, without

appropriate qualification, undermines the credibility of every other

conclusion it has expressed and provides evidence that the rule is

intended to further a political or other agenda unrelated to necessary

protection for the pygmy-owl.

Service Response: The State of Arizona has twice recognized the

loss of riparian habitat. The Governor's Riparian Task Force concluded

that 90 percent of the riparian habitat in Arizona had been lost. This

document is cited in the proposed rule and this final rule.

Additionally, the Arizona Game and Fish Department (AGFD) stated that

90 percent of the State's riparian habitat had been lost in their

November 1988 issue of Wildlife Views (AGFD 1988). This source has been

added to this final rule. The Service has previously published

literature (Department of Interior 1988) on the loss of riparian

habitat indicating that an estimated 10 percent of the original

riparian on the Colorado River remains, while 5 percent of the original

riparian on the Gila River remains. This document states that only

approximately 15 percent of the original riparian area in Arizona

remains in its natural form. This citation also has been added to this

final rule. The final rule has been modified to reflect this figure, as

well as the 90 percent figure. The remainder of the references in this

section address disturbance of riparian areas due to various

activities, and address losses, although percentages are not provided.

Comment: The Service's statement that the pygmy-owl is now rare or

absent in northern Sonora, within 150 miles of the United States-Mexico

border, is incorrect. The Service inaccurately cites Russell and

incorrectly assesses the status of the pygmy-owl in northern Sonora.

Service Response: The Service believes the literature cited in this

final rule supports this statement. The reference to Monson and

Russell, however, has been deleted.

Comment: Some commenters were concerned that the available

information was not sufficient to accurately identify all areas or

habitats with the potential

[[Page 10736]]

to support the species. Others suggested that more surveys, genetic

data, information on pygmy-owls from Mexico, and dispersal data are

needed.

Service Response: The Service agrees that many aspects of the

ecology of this species are poorly understood and need further study.

These aspects are treated as uncertainties here and in the proposed

rule. Despite these uncertainties, sufficient surveys have been

conducted to adequately assess the current status of the species, its

perceived threats, and whether or not listing is warranted. The Service

is not required to study and answer all questions concerning the

ecology or status of a species before it may be listed. Rather, the

Service is required to make listing determinations on the basis of the

best scientific and commercial data available (section 4(b)(1)(A) of

the Act).

Comment: One commenter stated that prey or lack of prey would not

be a hindrance to the population. Similarly, one commenter asked what

would happen if the prey items on which the pygmy-owl feeds were to

become endangered.

Service Response: The Service interprets this comment to mean that

it is not a lack of prey that has led to the decline of the pygmy-owl.

The Service concurs with this statement. Studies have indicated that

the pygmy-owl is a generalist with a diverse diet, including a variety

of species of birds, insects, reptiles, small mammals, and amphibians.

Therefore, it is unlikely that a lack of prey items, in and of itself,

has contributed to a decline in the subspecies. Similarly, because the

pygmy-owl uses a wide variety of prey items, it is unlikely that its

feeding habitats would lead to the endangerment or extinction of a

species. Should one of its prey items become extinct for other reasons,

it should not have an adverse effect on the pygmy-owl.

Comment: One commenter stated that pygmy-owls were not extirpated

in Arizona.

Service Response: The Service concurs with this statement. Surveys

for 1996 indicated a total of 19 known birds, with 2 additional

unconfirmed sightings. The final rule has been modified to amend the

statement on extirpation that appeared in the proposed rule.

Comment: One commenter stated that a source for the map in the

proposed rule was not given.

Service Response: The Service used various published and

unpublished information to develop the Federal Register map.

Issue 4: The Services information is not based on the best

scientific or commercial information.

Comment: A commenter stated that riparian loss is being addressed

through various means, and listed several examples. It was further

stated that the State of Arizona is committed to statutorily mandating

riparian conservation so no other protection is necessary.

Service Response: The Service supports rehabilitation of riparian

areas. However, the acres of riparian habitat that have been altered or

removed since the early 1900's exceed those which have been

rehabilitated. In addition, these projects have only recently been

funded, and many years will be needed to determine their effectiveness

in restoring riparian habitat and the resulting effect on pygmy-owl

populations. Further, riparian loss is only one of many factors

affecting the pygmy-owl.

Comment: Some commenters claimed that the Service ``mis-cites''

several authors to support the claim that the pygmy-owl's habitat is

threatened by destruction and modification, that it was a commonly

found inhabitant of mesquite bosques in Arizona, and that river bottom

forests and bosques supported the greatest populations of pygmy-owls.

Service Response: Additional information has been added to the

final rule to indicate that pygmy-owls were found historically in

Sonoran desertscrub in central and southern Arizona. However, the

Service believes that the available literature indicates that the

majority of birds found by early naturalists were found in the riparian

and mesquite bosque habitat along the major drainages in central and

southern Arizona.

Comment: One commenter questioned the importance of mesquite

habitat in Texas.

Service Response: As noted in this final rule, the pygmy-owl

historically occurred in dense mesquite thickets along the Rio Grande.

Further, as noted under section A, ``The present or threatened

destruction, modification, or curtailment of its habitat or range'' for

Texas, pygmy-owls have been detected in 1994 and 1995 on two of the

ranches in Texas that support mesquite woodlands.

Comment: The Service has failed to examine the reports of many

other early explorers who surveyed for wildlife but found few or no

pygmy-owls. The Service only reviewed reports of early naturalists and

ornithologists that actually referenced the pygmy-owl in their reports.

Service Response: The absence of a reference to pygmy-owls in the

published reports of early naturalists does not establish absence of

the species. It is possible that a naturalist who did not indicate that

pygmy-owls were seen may not have known the species or may not have

observed the species when the species was, in fact, present.

Comment: The Service has proposed the listing of the pygmy-owl

without due regard to the studies currently being conducted by Dr. Sam

Beasom of Texas A&M University.

Service Response: Although the proposed rule did not quote Dr.

Beasom's studies, information from these studies has been included in

the final rule. This information has been considered in reaching a

final decision on listing of the pygmy-owl.

Comment: Much of what the Service assumes is true regarding the

effects of groundwater pumping and surface water diversions is an

ongoing debate among hydrologists, geologists and other experts. The

Service's failure to consult the Arizona Department of Water Resources

and other experts is a failure to consider the best scientific data

available.

Service Response: The text of the final rule cites several sources

indicating that pumping of groundwater, along with several other

activities, has led to the reduction of riparian habitat. The Service

believes that the connection between groundwater pumping and its

effects on riparian habitat have been adequately documented through

these sources. In addition, information was solicited from State and

Federal agencies, as well as the public, and comments received during

the open comment periods were evaluated as part of this analysis.

Comment: The Service has not completed any groundtruthing of data

or notified the landowners of groundtruthing.

Service Response: For obvious reasons, the Service cannot

groundtruth historical observation data. However, survey efforts

conducted by the OPCNM, the AGFD, and the Service since 1990 have been

conducted on the ground. The AGFD, which has conducted the work in the

Tucson area, has contacted private landowners regarding their survey

work in that area.

Comment: Some commenters felt that the rule was based on

assumptions, hearsay, speculative observations, and anecdotal evidence,

not scientific data, and that the Act does not provide for listing

based on this type of information.

Service Response: The Service has used the best scientific and

commercial

[[Page 10737]]

information available in its determination to list the pygmy-owl. The

threats have been documented under the ``Summary of Factors Affecting

the Species'' section. The Service believes there are adequate

references within the final rule to document the detrimental effects of

overgrazing, as well as other activities, on riparian habitat in the

Southwest. Evidence presented in the literature and summarized in the

final rule, including recent studies on the pygmy-owl in Texas and

Arizona, indicate the importance of the different habitat types to

pygmy-owls in the two different populations. The Service believes that

the historical information referenced in the final rule, while

potentially considered anecdotal or speculative, is important in

developing an understanding of the subspecies. However, the Service did

not rely solely on this information in developing a recommendation to

list.

Comment: The rule suggests that different population segments tend

to inhabit different habitat, although the various habitats do appear

to share some basic characteristics. The rule then seems to suggest

that within a specific area, the bird seems to need specific vegetation

criteria. It seems the bird is far more adaptable than the Service

gives it credit.

Service Response: As noted in the proposed rule and in this final

rule, the eastern and western populations of the pygmy-owl inhabit

different vegetation communities. Although these communities consist of

different plant species (for example, live oak-honey mesquite and ebony

in Texas, versus saguaros and cottonwood-willow in Arizona), there are

common characteristics in the two communities, such as some form of

vegetation large enough to support cavity nesting and a dense

understory.

Comment: The cactus ferruginous pygmy-owl is not a separate species

of the ferruginous pygmy owl.

Service Response: The Service considers the cactus ferruginous

pygmy-owl to be a subspecies of the ferruginous pygmy-owl. The Service

refers the commenter to the discussion on taxonomy under the

``Background'' section.

Comment: DNA analysis suggests lack of differentiation between

Mexican and Texas populations, so there is no need to list.

Service Response: As noted in the proposed and final rules, the

Service will continue to evaluate information on the pygmy-owl in

Mexico and Texas. The Service's responses under Issue 5 explain the

purpose in considering the separate populations identified in the

proposed and final rules.

Issue 5: The designation of four distinct population segments for

the pygmy-owl has no scientific or regulatory basis.

Comment: Several commenters stated that there is no biological

reason or regulatory authority which would allow the Service to draw a

distinct vertebrate population segment boundary at the international

border.

Service Response: The Service's policy on distinct vertebrate

population segments (61 FR 4722) recognizes that the use of

international boundaries as a measure of discreteness of a population

may introduce an artificial and nonbiological element to the

recognition of distinct population segments. However, the Service has

determined that it is reasonable to recognize units delimited by

international boundaries when these units coincide with differences in

the management, status, or exploitation of a species. With respect to

the pygmy-owl, the Service believes the status of the species in

Arizona is different from that in Sonora, with records currently

indicating a higher number of individuals in Sonora as discussed in

this final rule.

While the area classified as the range of the Arizona population

may only represent a small percentage of its total range, it is the

area within which the United States Government, through the Department

of the Interior, can affect protection and recovery for this species.

The Service believes that data indicate a decline of this species

within its United States range, and that listing in Arizona is

warranted.

Comment: Several commenters stated that the Service did not support

its determination that the Arizona, Texas, eastern Mexico, and western

Mexico populations of pygmy-owls meet the definition of discrete

populations.

Service Response: The Service believes that the potential for

genetic distinctness of the Arizona and Texas populations exists

because the pygmy-owl is nonmigratory throughout its range and genetic

mixing across the area separating the Arizona and Texas populations is

likely infrequent. The Arizona and Texas portions of the pygmy-owl's

range are separated by the basin and range mountains and intervening

Chihuahuan Desert basins of southeastern Arizona, southern New Mexico,

and western Texas.

In addition to geographic separation, the pygmy-owl's Texas and

Arizona populations occupy different habitats. Although some broad

similarities in habitat physiognomy are apparent (e.g., dense woodlands

and thickets), floristically, these eastern and western habitats are

very dissimilar. The desertscrub and thornscrub associations in Arizona

are unlike any habitats occupied by the pygmy-owl in eastern Mexico and

southern Texas. Also, the oak association habitat occupied on coastal

plains in southern Texas is unlike any habitat available in the Arizona

portion of the pygmy-owl's range. In addition, considerable variation

in plumage between regional populations has been noted, including

specific distinctions between Arizona and Texas pygmy-owls.

Comment: Several commenters stated that the Service did not show

that the Arizona, Texas, eastern Mexico, and western Mexico populations

of pygmy-owls were significant.

Service Response: The Service's policy on distinct vertebrate

population segments requires it to consider the elements of

discreteness, significance, and status. In determining whether or not a

population meets the significance element, the Service must consider--

(1) Whether a discrete population segment persists in an ecological

setting unusual or unique for the taxon; (2) whether there is evidence

that loss of the discrete population segment would result in a

significant gap in the range of a taxon; (3) whether there is evidence

that the discrete population segment represents the only surviving

natural occurrence of a taxon that may be more abundant elsewhere as an

introduced population outside its historic range; or (4) whether there

is evidence that the discrete population segment differs markedly from

other populations of the species in its genetic characteristics.

The Arizona and Texas populations of the cactus ferruginous pygmy-

owl are unique due to their geographic separation, potential

morphological and genetic distinctness, and the floristics,

distribution, and status of habitat. Should the loss of either the

Arizona or Texas populations occur, the remaining population would not

fill the resulting gap as the remaining population would not be

genetically or morphologically identical, and would require different

habitat parameters. The loss of either population also would decrease

the genetic variability of the taxon and would result in a significant

gap in the range.

Issue 6: The existing regulations and management of the land by

landowners are satisfactory for protecting the pygmy-owl.

Comment: Several commenters stated that both Arizona and Texas were

adequately protecting the pygmy-owl so federally listing it would not

be necessary. The State of Arizona is

[[Page 10738]]

committed to statutorily mandate riparian conservation so no other

protection is necessary. The pygmy-owl already is listed as threatened

by the State of Texas.

Service Response: While the Service recognizes the efforts of the

State of Arizona in protecting potential pygmy-owl habitat, laws have

yet to be finalized and potential benefits of these efforts have not

yet been realized. Thus, these efforts have not yet affected the status

of the species. However, these actions are expected to contribute to

recovery.

Listing a species as threatened by Texas requires that permits be

obtained for propagation, zoological gardens, aquariums, rehabilitation

purposes, and scientific purposes, as noted in the final rule, but

there are no provisions for habitat protection. However, the Service

also believes that current land-use practices in the area of the main

Texas pygmy-owl population are not detrimental to the species.

Comment: Several commenters felt that current landowners have

protected and enhanced lands and that they are being penalized for

being good stewards. They felt that the Service should be more

interested in helping them and learning from them.

Service Response: The Service recognized, in the proposed rule and

this final rule, that the major portion of the population in Texas

exists today because present land management by private landowners is

generally compatible with the well-being of the pygmy-owl. The Service

will continue to work with landowners in developing management plans

and agreements with the objective of conserving the Texas population.

Conversely, there is an imminent threat of extirpation of the

subspecies in Arizona. The Service believes that listing of the pygmy-

owl as endangered in Arizona provides protection of the pygmy-owl, as

mandated by provisions of the Act.

Issue 7: The Service failed to follow Federal or other regulations

in regard to the listing of these species.

Comment: The Service violates the Act's requirement for the

Secretary to make his decision regarding listing of the species within

12 months of receiving the petition. The proposed rule was not

published until some 17 months after the petition was filed. The Idaho

Farm Bureau Federation v. Babbitt court ruling stated that if a

proposal to promulgate a final regulation is not made within the

statutory 12 months (or 18 months if an extension is declared), then

the proper course is for the Secretary to find there is insufficient

evidence at that time to justify the listing and to withdraw the

listing.

Service Response: The petition to list these species was received

by the Service on May 26, 1992. Regulations at 50 CFR 424.14(b) require

the Service to publish, within 12 months of receipt, a notice in the

Federal Register determining whether the petitioned action is

warranted. If the action is warranted, the Service must promptly

publish a proposed rule, with certain exceptions (50 CFR 424.14(b)(3)).

In this case, the Service opted to publish a proposed rule at the same

time as the 12-month finding. The date of that finding and proposed

rule was December 12, 1994. In accordance with 50 CFR 424.17, the

Service is required to publish a final determination or an extension

within 1 year of the date of the proposed rule. In this case, the final

rule was published well over a year after the proposed rule; however,

this was due in part to legislation preventing the Service from issuing

final rules from April 10, 1995, to October 1, 1995; a near cessation

of final and other listing actions from October 1, 1995, to April 26,

1996, due to budget limitations and legislation; and a backlog and lack

of personnel to complete final rules after April 26, 1996. Although the

12-month finding/proposed rule and this final rule were not published

within the allotted timeframes, neither the Act nor the implementing

regulations at 50 CFR 424 invalidate rules that are published late. The

Idaho Farm Bureau Federation v. Babbitt court ruling was vacated by the

U.S. Court of Appeals (Idaho Farm Bureau Federation v. Babbitt, Nos.

94-35164, 94-35230, U.S. Ct. App. (June 29, 1995). The court held that

violating the time limit was not a prohibition on listing, but rather,

that the ``time limits were designed as an impetus to act rather than

as a bar on subsequent action.'' The court held that because the Act

specified no consequences to violating the time limit, Congress

intended to merely compel agency action rather than discard the listing

process.

Comment: Several commenters stated that the Service did not provide

adequate time for the public to comment on the proposed rule. The

Service violated the Act and the Administrative Procedures Act (APA) by

not notifying or providing the public with sufficient opportunity to

comment. The Service also violated both Act and the APA by denying

public access to materials upon which the proposed rule was based.

Service Response: Regulations at 50 CFR 424.16(c)(2) require the

Service to allow a minimum of 60 days for public comment on proposed

rules. Three comment periods were provided on the proposed rule,

including a 120-day period from December 12, 1994, to April 11, 1995;

30 days from May 1 to May 30, 1995; and 34 days from October 10 to

November 12, 1995; for a total of 184 days.

Regulations at 50 CFR 424.16(c)(3) require the Service to hold at

least one public hearing if any person so requests within 45 days of

publication of a proposed rule. The Service received nine requests for

a public hearing within the 45-day request period. In response, public

hearings were held in Tucson, Arizona, and in Weslaco, Texas.

Additional requests for a public hearing were received more than 45

days after publication of the proposed rule. Although no additional

public hearings were conducted, the Service twice reopened the comment

period to accept additional comments and information.

In response to requests from the public, and in accordance with the

Act and its implementing regulations, the Freedom of Information Act

(FOIA), and the APA, the Service provided copies of documents to

several members of the public and lent the administrative record for

copying. Some requests for information were not promptly addressed

because they were contained within comment letters on the proposed

rule. In accordance with Service guidance on implementation of Public

Law 104-6 that halted work on final rules, comment letters were filed

and not read; thus granting of some information requests was delayed.

However, the Service did not deny any information requests, with the

exception of information withheld in accordance with the FOIA.

Comment: Listing of the pygmy-owl would constitute a violation of

NEPA because the Service did not analyze the economic impacts of the

action. Both the letter of the law and interpretive case law require

the Service prepare NEPA planning documents and submit them for public

review and input, which the Service did not do.

Service Response: As discussed in ``National Environmental Policy

Act'' in this rule, the Service has determined that neither

environmental assessments nor environmental impact statements need to

be prepared for proposed or final listing actions.

Comment: One commenter stated that the notice was irretrievably

flawed on a legal and technical basis by its use of an obsolete address

to which comments and requests for public hearings on the proposed rule

were to be sent. Additionally, this commenter stated that

[[Page 10739]]

comments and materials received were not available for public

inspection at the old address; therefore, the Service must, by law,

withdraw the proposed rule.

Service Response: Between the time the proposed rule was prepared

and its publication, the Service moved its office within Phoenix,

Arizona. The proposed rule listed the old address and facsimile number

(the telephone number was correct in the proposed rule), but cover

letters to interested parties and newspaper notices soliciting comment

gave the correct address. The Service received some comment letters

addressed to the old address; thus, the Post Office was forwarding our

mail. A recorded phone message at the old phone number also informed

callers of the new number in the event the old office was contacted.

The Service is unaware of any comment letters, requests for hearings,

or requests to inspect records that were returned to the sender.

In Federal Register notices announcing subsequent comment periods,

from May 1 to May 30, 1995, and October 10 to November 12, 1995, the

correct address and phone numbers were published. Because mail was

forwarded and callers were informed of our new number, cover letters

and newspaper notices included the correct address, and the latter two

comment periods totaling 64 days were announced by Federal Register,

newspaper notices, and cover letters with the correct address and phone

number, the Service believes the public was provided adequate

opportunity to provide comment on the proposed rule and inspect

supporting information.

Comment: One commenter questioned if agency peer review policy was

followed and whether the review is effective in weeding out hearsay

from good science.

Service Response: The Service requested and/or received comments on

the proposed rule from a variety of Federal, State, County, and private

individuals. All parties the Service is aware of with expertise

regarding the pygmy-owl have obtained copies of the proposed rule, and

many have commented. All comments have been considered and new

information was incorporated into this final rule.

Comment: Some commenters were concerned that the listing of this

species would unnecessarily restrict public access on Federal lands.

Service Response: The Service does not foresee restricting access

on Federal lands based on this listing.

Issue 8: The Service should not list the species because recovery

of the species is too costly, puts an unfair burden on land owners in

the United States, and is not guaranteed. Also listing the species

would not benefit endangered species protection as a whole.

Comment: Several commenters stated that money and effort should not

be given to list a species that the Service was not 100 percent sure

could be recovered. Another commenter stated that attempting to recover

a species in a highly-modified and degraded habitat, surrounded by an

increasingly urbanized environment, creates a cognitive dissonance that

begs a concise, logical, and irrefutable justification.

Service Response: Regulations at 50 CFR 424.11(b) require the

Secretary of the Interior to make decisions on listing based on ``the

best available scientific and commercial information regarding a

species' status, without reference to possible economic or other

impacts of such determination.'' There is nothing in the Act or

implementing regulations that allows the Service to consider the

recovery potential of a species in determining whether a species should

be listed.

Comment: Without an immediate halt to the urbanization of the

Phoenix and Tucson metropolitan areas, the potential impacts from such

limiting factors will only increase in intensity and quite possibly

negate any positive advances made rehabilitating this habitat.

Service Response: While the urbanization of the Phoenix and Tucson

metropolitan areas have resulted in a decline in riparian areas where

the pygmy-owl was historically found (i.e., the Gila, Salt, Rillito,

and Santa Cruz rivers, and Canada del Oro Wash), it is not the

intention of the Act to halt urbanization. In fact, the largest Arizona

population of pygmy-owls is located in a developed section of Tucson,

indicating that the pygmy-owl can coexist with certain levels of

development. The recovery of this, or any other species, will require a

variety of measures including project review through section 7

consultation, section 10 Habitat Conservation Plans, and development of

conservation agreements where possible.

Comment: One commenter stated that the Service admitted that 70 to

80 percent of the pygmy-owl's habitat is in Mexico and questioned why

the landowners in Arizona, Texas, and New Mexico should have to

sacrifice their land to take care of Mexico's wildlife.

Service Response: As a point of clarification, the pygmy-owl is not

known to occur in New Mexico, and this listing action is limited to

Texas and Arizona. Neither the final rule, proposed rule, nor

presentations at public hearings referenced the fact that 70 to 80

percent of the pygmy-owl's habitat is in Mexico, or that less than one-

fifth of its range is in Arizona, and it is unclear what these figures

are based on. Regardless of these figures, it is important to note

that, although the Service is concerned with protecting populations in

Mexico, the immediate concern is for populations within the boundaries

of the United States. Listing of endangered species is the first of

many steps, followed by mitigation of threats facing the species, and

eventual recovery. It is more feasible for the United States Government

to list, mitigate, and recover a species within our own jurisdiction.

The Service has noted that we will continue to evaluate the status of

the species in Mexico. We have not eliminated the possibility of

cooperating with Mexico in implementing needed protection in that

country.

Additionally, the Act does not authorize ``takings'' of private

lands, and many of the provisions of the Act apply only to Federal

agencies. Regardless of land ownership, the Act prohibits taking of a

listed species. It should be noted that, through proper Federal

actions, cooperation with private landowners, development of

conservation agreements, and a variety of other measures, landowners

will not have to ``sacrifice'' any lands to aid in the recovery of the

pygmy-owl.

Comment: One commenter stated that listing species has created

bitterness toward the Act and the Service and that listing species

would give people a reason to kill endangered species and destroy

habitat. One commenter recommended the Service not list the pygmy-owl

because the current political climate would heat up even more against

conservation and endangered species.

Service Response: Regulations at 50 CFR 424.11(b) require the

Secretary of the Interior to make decisions on listing based on ``the

best available scientific and commercial information regarding a

species' status, without reference to possible economic or other

impacts of such determination.'' The Service is aware that there are

segments of the public that disagree with determinations made; however,

the Service has no authority to base a listing decision on the possible

aftereffects of listing.

Summary of Factors Affecting the Species

Section 4(a)(1) of the Act and regulations (50 CFR Part 424)

promulgated to implement the listing provisions of the Act set forth

the

[[Page 10740]]

procedures for adding species to the Federal List of Endangered and

Threatened Wildlife and Plants. A species may be determined to be

endangered or threatened owing to one or more of the five factors

described in Section 4(a)(1) of the Act. These factors and their

application to the cactus ferruginous pygmy-owl are as follows:

A. The present or threatened destruction, modification, or

curtailment of its habitat or range. The pygmy-owl is threatened by

past, present, and potential future destruction and modification of its

habitat, throughout a significant portion of its range in Arizona

(Phillips et al. 1964, Johnson et al. 1979, Monson and Phillips 1981,

Johnson and Haight 1985a, Hunter 1988, Millsap and Johnson 1988). The

severity of habitat loss and threats varies across the pygmy-owl's

range. Population numbers have been drastically reduced in Arizona,

which once constituted its major United States range. In Texas, pygmy-

owl populations have experienced significant declines, from the lower

Rio Grande Valley but persists in oak associations on the coastal plain

north of the Rio Grande Valley.

The majority of these losses are due to destruction and

modification of riparian and thornscrub habitats. It is estimated that

between 85 and 90 percent of low-elevation riparian habitats in the

southwestern United States have been modified or lost. These

alterations and losses are attributed to urban and agricultural

encroachment, woodcutting, water diversion and impoundment,

channelization, livestock overgrazing, groundwater pumping, and

hydrologic changes resulting from various land-use practices (e.g.,

Phillips et al. 1964, Carothers 1977, Kusler 1985, AGFD 1988a, DOI

1988, General Accounting Office 1988, Jahrsdoerfer and Leslie 1988,

Szaro 1989, Dahl 1990, State of Arizona 1990, Bahre 1991).

Status information for pygmy owls in Mexico is very limited, but

some observations suggest that although habitat loss and reductions in

numbers are likely to have occurred in northern portions of the two

subspecies in Mexico, the pygmy-owl persists as a locally common bird

in southern portions of Mexico. Habitat loss and population status are

summarized below for the four populations of the pygmy-owl.

Western Populations

Several habitat types are used by the pygmy-owl in the western

portion of its range. These include riparian woodlands and bosques

dominated by mesquite and cottonwood, Sonoran desertscrub (usually with

relatively dense saguaro cactus forests), and Sinaloan deciduous Forest

(van Rossem 1945, Phillips et al. 1964, Karalus and Eckert 1974,

Millsap and Johnson 1988).

1. Arizona

The northernmost record for the pygmy-owl is from New River,

Arizona, approximately 55 km (35 mi) north of Phoenix, where Fisher

(1893) found it to be ``quite common'' in thickets of intermixed

mesquite and saguaro cactus. Prior to the mid-1900's, the pygmy-owl

also was described as ``not uncommon,'' ``of common occurrence,'' and a

``fairly numerous'' resident of lowland central and southern Arizona in

cottonwood forests, mesquite-cottonwood woodlands, and mesquite bosques

along the Gila, Salt, Verde, San Pedro, and Santa Cruz rivers, and

various tributaries (Breninger 1898 in Bent 1938, Gilman 1909, Swarth

1914). Bendire (1988) noted that he had taken ``several'' along Rillito

Creek near Fort Lowell, in the vicinity of Tucson, Arizona. The pygmy-

owl also occurs in Sonoran desertscrub associations in southern and

southwestern Arizona, consisting of palo verde, ironwood, mesquite,

acacia, bursage, and columnar cacti such as the saguaro and organpipe

(Phillips et al. 1964, Davis and Russell 1984 and 1990, Monson and

Phillips 1981, Johnson and Haight 1985a, Johnsgard 1988).

In the past, the pygmy-owl's occurrence in Sonoran desertscrub was

apparently less common and predictable. It was more often found in

xeroriparian habitats (very dense desertscrub thickets bordering dry

desert washes) than more open, desert uplands (Monson and Phillips

1981, Johnson and Haight 1985a, Johnson-Duncan et al. 1988, Millsap and

Johnson 1988, Davis and Russell 1990). The pygmy-owl also was noted to

occur at isolated desert oases supporting small pockets of riparian and

xeroriparian vegetation (Howell 1916, Phillips et al. 1964).

The trend of Sonoran desertscrub habitats and pygmy-owl occupancy

is not as clear. Historical records from this habitat in Arizona are

few. This may be due to disproportionate collecting along rivers where

humans were concentrated, while the upland deserts were less

intensively surveyed. Johnson and Haight (1985a) suggested that the

pygmy-owl adapted to upland associations and xeroriparian habitats in

response to the demise of Arizona's riverbottom woodlands. However,

conclusive evidence to support this hypothesis is not available. It may

be that desertscrub habitats simply are of lesser quality and have

always been occupied by pygmy-owls at lower frequency and density

(Johnson and Haight 1985b, Taylor 1986). While historical records of

pygmy-owls do exist for Sonoran desertscrub in areas such as the Santa

Catalina foothills, they generally note that the birds are rare in

these areas (Kimball 1921).

Both riparian and desertscrub habitats are likely to provide

several requirements of the pygmy-owl ecology. Trees and large cacti

provide cavities for nesting and roosting. Also, these habitats along

watercourses are known for their high density and diversity of animal

species that constitute the pygmy-owl's prey base (Carothers 1977,

Johnson et al. 1977, Johnson and Haight 1985b, Stromberg 1993).

The pygmy-owl has declined throughout Arizona to the degree that it

is now extremely limited in distribution in the State (Davis and

Russell 1979, Johnson et al. 1979, Monson and Phillips 1981, AGFD

1988a, Johnson-Duncan et al. 1988, and Millsap and Johnson 1988).

Riverbottom forests and bosques, which supported the greatest abundance

of pygmy-owls, have been extensively modified and destroyed by

clearing, urbanization, water management, and hydrological changes

(Willard 1912, Brown et al. 1977, Rea 1983, Szaro 1989, Bahre 1991,

Stromberg et al. 1992, Stromberg 1993). Cutting for domestic and

industrial fuelwood was so extensive throughout southern Arizona that,

by the late 19th century, riparian forests within tens of miles of

towns and mines had been decimated (Bahre 1991). Mesquite was a favored

species, because of its excellent fuel qualities. The famous, vast

forests of ``giant mesquites'' along the Santa Cruz River in the Tucson

area described by Swarth (1905) and Willard (1912) fell to this threat,

as did the ``heavy mesquite thickets'' where Bendire (1888) collected

pygmy-owl specimens along Rillito Creek, a Santa Cruz River tributary,

also in what is now Tucson. Only remnant fragments of these bosques

remain.

Cottonwoods also were felled for fuelwood, fenceposts, and for the

bark, which was used as cattle feed (Bahre 1991). In recent decades,

the pygmy-owl's riparian habitat has continued to be modified and

destroyed by agricultural development, woodcutting, urban expansion,

and general watershed degradation (Phillips et al. 1964, Brown et al.

1977, State of Arizona 1990, Bahre 1991, Stromberg et al. 1992,

Stromberg 1993). Sonoran desertscrub has been affected to varying

degrees by urban and agricultural development, woodcutting, and

livestock grazing (Bahre 1991).

[[Page 10741]]

In addition to clearing woodlands, the pumping of groundwater and

the diversion and channelization of natural watercourses are also

likely to have reduced pygmy-owl habitat. Diversion and pumping result

in diminished surface flows, and consequent reductions in riparian

vegetation are likely (Brown et al. 1977, Stromberg et al. 1992,

Stromberg 1993). Channelization often alters stream banks and fluvial

dynamics necessary to maintain native riparian vegetation. The series

of dams along most major southwestern rivers (e.g., the Colorado, Gila,

Salt, and Verde) have altered riparian habitat downstream of dams

through hydrological and vegetational changes, and have inundated

former habitat upstream.

Livestock overgrazing in riparian habitats is one of the most

common causes of riparian degradation (e.g., Ames 1977, Carothers 1977,

Behnke and Raleigh 1978, Forest Service 1979, General Accounting Office

1988). Effects of overgrazing include changes in plant community

structure, species composition, relative species abundance, and plant

density. These changes are often linked to more widespread changes in

watershed hydrology (Brown et al. 1977, Rea 1983, GAO 1988), and are

likely to affect the habitat characteristics critical to the pygmy-owl.

Hunter (1988) found fewer than 20 verified records of pygmy-owls in

Arizona for the period of 1971 to 1988. Although pygmy-owls are diurnal

and frequently vocalize in the morning, the species was not recorded or

reported in any breeding bird survey data in Arizona (Robbins et al.

1986). Formal surveys for the pygmy-owl on OPCNM began in 1990, with

one bird located that year. Beginning in 1992, in survey efforts

conducted in cooperation with the AGFD, three single pygmy-owls were

located on the Monument (Fish and Wildlife Service and National Park

Service, unpubl. data 1992). In 1993, more extensive surveys again

located three single pygmy-owls in Arizona (AGFD unpubl. data 1993,

Felley and Corman 1993). During 1993-1994 surveys, one pair of owls was

detected in north Tucson, near the sightings in 1992 and 1993 (Collins

and Corman 1995). Two individual owls were found in northwest Tucson

during 1995 surveys, and an additional owl was detected at OPCNM (Lesh

and Corman 1995).

In 1996, the AGFD focused survey efforts in northwest Tucson and

Marana, and detected a total of 16 birds, two of which were a pair, and

two of which were fledglings. Three additional pygmy-owls were detected

on OPCNM in 1996, with three additional, but unconfirmed, reports

(Harold Smith, National Park Service, OPCNM, in litt. 1996).

Potential threats to pygmy-owl habitat in Arizona persist. Through

the public comment period, the Service was made aware of five specific

housing and development projects operating or in the planning stages

that would affect habitat where the majority of birds in Arizona

currently exist. Housing and industrial developments continue to expand

in the Tucson area, and the northwest portion of the Tucson area is

experiencing rapid growth. It was estimated that only 60 percent of the

people living in the Tucson area are within the city of Tucson, even

though the city limits continue to be expanded to keep up with urban

expansion (Sierra Club 1988, Duane Shroufe, AGFD, in litt. 1996).

The AGFD (D. Shroufe, in litt. 1996) estimated that 22,032 hectares

(ha) (54,400 acres (ac)) of suitable habitat exists in the northwest

Tucson area, where the majority of birds are found for the western

population. Surveys completed in 1996 covered 44.2 square km (17.0

square mi) of this area (Abbate 1996). The AGFD notes that, while 60

percent of this land is in State Trust or Bureau of Land Management

(BLM) ownership, much of the land may be subject to development as the

Town of Marana is developing a general plan for future growth that may

incorporate these areas. In addition, the BLM is evaluating a proposal

to exchange all of its land within this area to a developer.

At OPCNM, potential threats include the increased risk of wildfire

associated with an invasion of the OPCNM by nonnative grasses such as

red brome (Bromus tectorum) and buffelgrass (Pennisetum ciliare).

Sonoran desertscrub is not generally considered fire adapted, and fire

can lead to loss of saguaros. An additional threat in this area is the

increasing visitation and through-traffic from the international port

of entry at Lukeville (H. Smith, in litt. 1996).

In summary, very few pygmy-owls remain throughout the pygmy-owl's

historic range in Arizona due to extensive loss of habitat. In

addition, the remaining pygmy-owl habitat faces numerous and

significant threats.

2. Western Mexico

The pygmy-owl occurs in the more arid lower elevations (below 1,200

m (4,000 ft) elevation) in western Mexico in riparian woodlands and

communities of thornscrub and large cacti. The pygmy-owl is absent or

rare in the highlands of Mexico's central plateau (Friedmann et al.

1950), where the least (G. minutissima) and northern (G. gnoma) pygmy-

owls occur.

In the mid-20th century, the pygmy-owl was generally described as

``common'' in western Mexico (van Rossem 1945, Friedmann et al. 1950,

Blake 1953). Schaldach (1963) considered the pygmy-owl abundant at the

southern extreme of its range in Colima 30 years ago, and 50 years ago

the pygmy-owl was considered ``fairly common'' in the lower elevations

of western Sonora (van Rossem 1945). Current information on the status

of the pygmy-owl and its habitat in western Mexico is incomplete, but

suggests that trends vary within different geographic areas. The pygmy-

owl can still be located fairly easily in southern Sonora (Babbitt

1985, Troy Corman, AGFD, pers. comm. 1994), but its distribution is

somewhat erratic. Christmas Bird Count data from 1972 through 1995 from

Alamos, Sonora, and San Blas, Nayarit, indicate that the pygmy-owl is

common, but detections varied widely from year to year, possibly due to

variations in the time spent per count and the number of searchers

participating in the count. The count for Alamos, Sonora never exceeded

four individuals, and no sightings were recorded in 10 out of 14 years

(National Audubon Society 1972-1995). In recent years, pygmy-owls have

been found in abundance in some areas but not detected in other areas

of apparently similar habitat. Abundance also varies between habitat

types, being more abundant in thorn forest than cactus forest (Taylor

1986).

The pygmy-owl is now rare or absent in northern Sonora, within 241

km (150 mi) of the United States-Mexico border (Hunter 1988, D.

Shroufe, in litt. 1996). Extensive conversion of desertscrub and

thornscrub to the exotic, buffelgrass, for livestock forage is now

taking place, but quantification is not currently available. It is

possible that the factors causing declines in Arizona also are

affecting western Mexico (Deloya 1985, Hunter 1988). The region of

Sonoita, Mexico, immediately south of OPCNM currently is undergoing

extensive urban and agricultural development that may result in

modification or destruction of movement corridors for the pygmy-owl

between southern Arizona and northern Sonora (H. Smith, in litt. 1996).

However, further information is needed before determining whether this

subspecies should be listed in western Mexico.

Eastern Populations

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

portion of

[[Page 10742]]

its range. These include coastal plain oak associations in south Texas

(Tewes 1993, Wauer et al. 1993), Tamaulipan thornscrub in the lower Rio

Grande Valley and other lowland areas, and thick forest and second-

growth forest in the Mexican States of Nuevo Leon and Tamaulipas. The

use of cypress trees by pygmy-owls along the Rio Grande also has been

noted (Tewes 1993).

1. Texas

The pygmy-owl's historical range in Texas included the lower Rio

Grande Valley, where it was considered a common resident of dense

mesquite, cottonwood-ebony woodlands, and Tamaulipan Brushland (Griscom

and Crosby 1926, Bent 1938, Friedmann et al. 1950, Stillwell and

Stillwell 1954, Oberholser 1974, Heintzelman 1979, Hunter 1988, Millsap

and Johnson 1988). Pygmy-owls also occur in coastal plain oak

associations between Brownsville and Corpus Christi (Oberholser 1974),

where it has recently been found in higher numbers than previously

known (Texas A&M University, in litt. 1993, Wauer et al. 1993, P.

Palmer, in litt. 1993, Mays 1996, Proudfoot 1996).

Until recently, formal surveys in Texas were lacking, but pygmy-

owls were reported as occurring generally in two areas: the Rio Grande

floodplain below Falcon Dam; and along U.S. Highway 77, north of the

lower Rio Grande Valley. Wauer et al. (1993) note that pygmy-owls have

been reported almost annually from the Rio Grande floodplain downstream

of Falcon Dam to the Santa Anna National Wildlife Refuge in Starr and

Hidalgo counties. Two pygmy-owls were reported below the dam in April

1993 (ABA 1993). These records generally are for 1 bird or 1 pair of

birds, with the exception of a report of 10 birds from below the Dam in

1989 (unpubl. data). More recently, pygmy-owls have been located in

Kenedy, Brooks and adjacent south Texas counties (Wauer et al. 1993).

Oberholser (1974) reported birds on the Norias Division of the King

Ranch as having been discovered in 1968.

A larger population of birds occurs on the King Ranch and

surrounding ranches, approximately 112 km (70 mi) north of Brownsville.

Caesar Kleberg Wildlife Research Institute at Texas A&M University (in

litt. 1996) states that the most consistently used habitat, of which

the King Ranch is a part, is a 4,660 square km (1800 square mi) oblong

area of sandy soils, which support live oak (Quercus virginiana), honey

mesquite (Prosopis glandulosa), and live oak mottes (small groupings of

live oaks). Beasom (1993) described this same area, historically known

as the Wild Horse Desert, as an intrusion of deep, coastal sands that

protrudes inland for approximately 81 km (50 mi) from the Laguna Madre

and covers portions of northern Willacy, Kenedy, and Brooks counties.

This area was recognized as a distinct vegetational region in Texas by

Blair (1950), who noted that brush in this area thins out as available

moisture declines inland, and that there was a difference in plant

composition in this area due to the extensive sand strip.

Four recent studies have been completed in Texas on the pygmy-owl,

with three of these focusing on the Norias Division of the King Ranch

(Tewes 1993, Wauer et al. 1993, Mays 1996, Proudfoot 1996). Tewes

(1993) conducted a study by contacting individuals with possible

information on the pygmy-owl, reviewing museum specimen records, and

conducting a survey. Tewes noted that his contacts believed the most

accessible pygmy-owls in Texas were those below Falcon Dam in Starr

County, but noted additional sighting records for other Texas counties

were fewer and often accompanied by reports of unsuccessful surveys.

This was true for Hidalgo (four sightings, one unsuccessful search),

Zapata (one sighting, one unsuccessful search), and Cameron (zero

sightings, one unsuccessful search) counties.

Surveys were conducted as part of this study at 27 sites in Mexico

and 11 sites in Texas, with 12 positive responses noted. However, these

responses were all in Mexico. Survey efforts in Texas that yielded no

responses occurred on the Laguna Atascosa and Santa Anna National

Wildlife Refuges, along Highways 77 and 281, and at the Falcon

Recreation Area, Kelly Wildlife Management Area, Bentsen State Park,

and Los Penitas Wildlife Management Area (Tewes 1993).

Additional survey results from work completed in 1993 found 116

individual, nonredundant pygmy-owl records on and around the King Ranch

in mature mixed live oak-mesquite habitats. The highest density of

birds found in this survey was on the Norias Division of the King Ranch

(Wauer et al. 1993).

Mays (1996) also focused study efforts on the Norias Division of

the King Ranch, and included portions of the Kenedy Ranch, the Encino

Division of the King Ranch, the Canelo Ranch, and the Runnels Ranch.

Habitat on the Norias Division is live oak, while the Kenedy Ranch and

the Encino Division of the King Ranch support live oak-honey mesquite

woodland. The Canelo Ranch supports honey mesquite woodland, but no

live oak, as does the Runnels Ranch. Mays recorded 166 responses during

1994 and 1995 on the King, Kenedy, Canelo, and Runnels ranches. The

TPWD conducted additional studies during this 2-year period and

reported three responses on the Mariposa Ranch, and no responses for

the LaCopa, Cage, and Hopper ranches. During 1995, TPWD sampled but

recorded no responses for the Mariposa, LaCopa, Cage, Hopper, Los

Compadres, Singer, Jones, Myrick, Rancho Isabela or Mills Bennett

ranches.

Proudfoot (Glenn, pers. comm. 1996) has trapped and banded pygmy-

owls on the Norias Division of the King Ranch, focusing on a 29,000 ha

(71,393 ac) portion of the King Ranch supporting a live oak-honey

mesquite forest. This effort resulted in the trapping and banding of

111 pygmy-owls. It should be noted that there is overlap between work

completed by Mays and that completed by Proudfoot, so that the number

of individuals recorded by each are not additive. Of the estimated

101,250 ha (250,000 ac) of live oak habitat surrounding the King,

Kenedy, and other nearby ranches, it is estimated that all but a 4,050

ha (10,000 ac) parcel on one ranch have been surveyed for pygmy-owls

(G. Proudfoot, pers. comm.).

While the number of known individuals ranges from 111 (Glenn, pers.

Comm. 1996) to 166 (Mays, 1996), the estimated population is much

higher. Mays (1996) estimated between 745 and 1,823 pygmy-owls on the

Norias Division of the King Ranch alone. Wauer et al. (1993) estimated

1,308 birds in the habitat available in Kenedy, Brooks, and Willacy

counties. The Caesar Kleberg Institute of Texas A&M University believes

that pygmy-owl populations in Texas are viable and probably exceed

1,300 birds.

The Service believes that the habitat for pygmy-owls along the

coastal plain of southern Texas is stable, and may be increasing as

former grasslands are invaded by oaks and the oaks mature to form the

structural characteristics favored by pygmy-owls. Further, the habitat

on the large, privately-owned ranches in this area is largely managed

for wildlife (e.g., hunting, birding), conversion for agricultural use

is considered uneconomical and unlikely, and other threats to this

habitat are low or nonexistent (Caesar Kleberg Wildlife Institute in

litt. 1996).

Through the Santa Ana/Lower Rio Grande Valley National Wildlife

Refuge Complex in Texas, the Service has recently started a Wetlands

Reserve

[[Page 10743]]

Program with the Natural Resources Conservation Service. Using grant

monies, the Service will pursue the purchase of easements with willing

landowners. The focus of the easement agreements will be on habitat

protection and restoration. Additional tracts of land are being

evaluated for purchase in river frontage areas in Starr and Hidalgo

counties. These efforts will result in a corridor of riparian

woodlands, which may serve as pygmy-owl habitat in the future (L.

Ditto, pers. comm. 1996).

In summary, there remains a significant population of pygmy-owls in

the coastal plain area of Texas, and a substantial amount of habitat

exists. That habitat is largely managed for wildlife. The economic

feasibility of conversion to agricultural use makes threats to the

habitat low or nonexistent. Finally, habitat acquisition and

rehabilitation underway in the lower Rio Grande Valley should provide

substantial pygmy-owl habitat. For these reasons, the Service

determines that the cactus ferruginous pygmy-owl in Texas is not likely

to become endangered in the foreseeable future throughout all or a

significant portion of its range. There is not sufficient evidence to

justify finalizing that portion of the proposed rule.

2. Eastern Mexico

The pygmy-owl occurs in lowland regions (below 330 m (1,000 ft))

along the Gulf Coast of Mexico (Friedmann et al. 1950), in the states

of Tamaulipas and Nuevo Leon. Its primary habitat in this region is

Tamaulipan thornscrub, forest edge, riparian woodlands, thickets, and

lowland tropical deciduous forest (Webster 1974, Enriquez Rocha et al.

1993, Tewes 1993). The pygmy-owl is absent or rare in the highlands of

Mexico's central plateau (Friedmann et al. 1950), where the least and

northern pygmy-owls occur.

In the mid-20th century, the pygmy-owl was generally described as

having been common in eastern Mexico (Friedman et al. 1950, Blake

1953). Current information on the status of the pygmy-owl and its

habitat in eastern Mexico is incomplete. In 1976, the pygmy-owl was

reported to be ``fairly common'' in the Sierra Picachos of Nuevo Leon

(Arvin 1976). In 1991, Tewes located pygmy-owls at 13 of 27 survey

sites in northeastern Mexico.

Christmas Bird Count data from 1972 through 1996 from Rancho Los

Colorados, Rio Corona, and Gomez Farias, all in Tamaulipas, indicate

the pygmy-owl was common, but detections varied widely from year to

year, probably due to time spent per count and the number of

individuals involved in the count effort (National Audubon Society

1972-1996). Christmas Bird Count data indicated the same for

ferruginous pygmy-owls at El Naranjo in San Louis Potosi, at the zone

of probable intergradation between G. b. cactorum and G. b. ridgwayi.

B. Overutilization for commercial, recreational, scientific, or

educational purposes. The pygmy-owl is highly sought by birders who

concentrate at several of the remaining known locations of pygmy-owls

in the United States. Limited, careful birding is probably not harmful;

however, excessive attention by birders may at times harass and affect

the occurrence and behavior of the pygmy-owl (Oberholser 1974, Tewes

1993). For example, in early 1993, one of the few areas in Texas known

to support the pygmy-owl continued to be widely publicized (American

Birding Association 1993). The resident pygmy-owls were detected at

this highly-visited area only early in the breeding season and not

thereafter. O'Neil (1990) also indicated that five birds initially

detected in southern Texas failed to respond after repeated visits by

birding tours. Additionally, Oberholser (1974) and Hunter (1988)

indicated that, in southern Texas, recreational birding may disturb

owls at highly visited areas.

C. Disease or Predation. One disease potentially affecting the

pygmy-owl is trichomoniasis, as identified by the AGFD (D. Shroufe, in

litt. 1996). Because owls prey on finches, sparrows, and other seed-

eating birds known to carry trichomoniasis, they are at risk of

contracting the disease. According to Boal and Mannan (1996), raptors

in urban areas experience a higher exposure rate to trichomoniasis, and

the result is high mortality of raptor nestlings. No studies have been

completed to date on the pygmy-owl in urban or other areas to determine

if, in fact, pygmy-owls have been affected by this disease.

Recent work by Proudfoot (1996) indicates that snake predation may

be an additional factor adversely affecting the pygmy-owl population on

the Norias Division of the King Ranch. Proudfoot noted that nest boxes

previously containing eggs would later be discovered empty, without

sufficient time having elapsed to allow for fledging to occur. A lack

of egg shell remains in nest boxes may indicate that snakes have

depredated nests containing pygmy-owl eggs. Although long-tailed

weasels (Mustela frenata) also occur in this study area, the lack of

egg shell remains and the nest box configuration indicate that weasels

are not likely to have eaten the eggs. Nest boxes are typically 14 x 14

x 46 cm (5.5 x 5.5 x 18 in.) with a 5.13 cm (2.0 in.) entrance hole

placed 31 cm (12 in.) above the box bottom.

Proudfoot (1996) has observed the indigo snake (Drymarchon corais)

climbing trees on the King Ranch and notes that the indigo snake is

known to prey on cavity nesting green-cheeked Amazon parrots (Amazona

viridigenalis). Proudfoot notes that, from 1993 to 1996, eight out of

112 available nest boxes (or 232 nest box opportunities) were used.

Where flashing was placed around trees to prevent the possibility of

predation by snakes, eggs were not disturbed. For the four nest boxes

left unprotected, three were depredated before the eggs hatched, while

one was depredated following hatching. Proudfoot further noted that

fecundity (the number of young successfully raised per year), for

natural cavities was approximately one-third that of fecundity for nest

boxes, and speculates that eggs and birds in natural cavities were

likely to have been depredated by both snakes and long-tailed weasels,

resulting in a lower fecundity rate (G. Proudfoot, pers. comm. 1996).

However, it is unknown what the effect of nest predation is on

mortality rates of the pygmy-owl population, nor whether predation

notes are unnaturally high.

D. The inadequacy of existing regulatory mechanisms. Although the

pygmy-owl is considered nonmigratory, it is protected under the

Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712). The MBTA is the

only direct, current Federal protection provided for the cactus

ferruginous pygmy-owl. The MBTA prohibits ``take'' of any migratory

bird. ``Take'' is defined as ``* * * to pursue, hunt, shoot, wound,

kill, trap, capture, or collect, or attempt to pursue, hunt, shoot,

wound, kill, trap, capture, or collect.'' However, unlike the Act,

there are no provisions in the MBTA preventing habitat destruction

unless direct mortality or destruction of active nests occurs.

The Federal Clean Water Act contains provisions for regulating

impacts to river systems and their tributaries. These mechanisms have

been insufficient to prevent major losses of riparian habitat,

including habitats occupied by the pygmy-owl.

The Barry M. Goldwater Range, which overlaps the historical

distributional range of the pygmy-owl, has an existing policy stating

that, for any species that have been identified as state or Federal

species of concern, the range will be inventoried, and potential

impacts to those species analyzed with other

[[Page 10744]]

information gathered. Projects can then be modified to avoid or

minimize impacts to the species. The Goldwater Range also has

identified any habitats that are unique or significant on the range,

including desert washes, bajadas, and dunes. The Goldwater Range has

the flexibility to create management plans for any species of concern;

however, no such policy currently exists for the pygmy-owl.

The OPCNM, the second major location for pygmy-owls in the State of

Arizona, provides protection for the pygmy-owl, as it does for all

other natural and cultural resources. This protection has been compared

as similar to the takings prohibitions of the MBTA and wildlife taking

regulations for the State of Arizona (H. Smith, in litt. 1996).

The State of Arizona lists the ferruginous pygmy-owl (subspecies

not defined) as endangered (AGFD 1988). However, this designation does

not provide special regulatory protection. Arizona regulates the

capture, handling, transportation, and take of most wildlife, including

G. b. cactorum, through game laws, special licenses, and permits for

scientific investigation. There are no provisions for habitat

protection under Arizona endangered species law.

The State of Texas lists the ferruginous pygmy-owl (subspecies not

defined) as threatened (TPWD 1978 and 1984). This designation requires

permits for take for propagation, zoological gardens, aquariums,

rehabilitation purposes, and scientific purposes (State of Texas 1991).

Again, however, there are no provisions for habitat protection. The

TPWD has indicated that they have a Memorandum of Understanding with

the Texas Department of Transportation (TXDOT), which provides that it

is the responsibility of TPWD to protect wildlife resources. Under this

Memorandum, TPWD and TXDOT will coordinate on any project within range

and in suitable habitat of any State or federally listed threatened or

endangered species. Additionally, TPWD reviews seismic exploration on

State lands through coordination with the Texas General Land Office.

The pygmy-owl is also on the Texas Organization for Endangered Species

(TOES) ``watch list'' (TOES 1984).

Most Federal agencies have policies to protect species listed by

states as threatened or endangered, and some also protect species that

are candidates for Federal listing. However, until agencies develop

specific protection guidelines, evaluate their effectiveness, and

institutionalize their implementation, it is uncertain whether any

general agency policies adequately protect the pygmy-owl and its

habitat.

No conservation plans or habitat restoration projects specific to

the cactus ferruginous pygmy-owl exist for lands managed by the United

States Government, Indian Nations, State agencies, or private parties.

The Forest Service, BLM, and Bureau of Reclamation have focussed some

attention on modifying livestock grazing practices in recent years,

particularly as they affect riparian ecosystems. Several of these

projects are in the former range of the pygmy-owl, including some

historical nesting locations. In addition, some private landowners in

southern Texas are accommodating and funding research and have

expressed an interest in carrying out conservation measures to benefit

the pygmy-owl.

In summary, individual owls are protected from taking by one or

more State and Federal statutes, and some Federal agencies are

developing programs to protect riparian areas. However, there are

currently no regulatory mechanisms in place that specifically protect

pygmy-owl habitat.

E. Other natural or manmade factors affecting its continued

existence. Environmental, demographic, and genetic vulnerability to

random extinction are recognized as interacting factors that might

contribute to a population's extinction (Hunter 1996). Environmental

random extinction refers to random events, climate, nutrients, water,

cover, pollutants, and relationships with other species such as prey,

predators, competitors, or pathogens, that may affect habitat quality.

To date, the Service is aware of only one genetic study completed

on pygmy-owls in the United States. Using toe clippings or blood

samples, Zink et al. (1996) extracted DNA from pygmy-owls on the Norias

Division of the King Ranch and from Rio Corona, Tamaulipas, Mexico.

Data obtained from this study indicate that there is very little

genetic difference between birds on the King Ranch and those in

Tamaulipas. The authors concluded that any division between the two

populations would therefore have occurred recently, likely within the

last 75 years.

In addition, the data indicate low levels of genetic variation in

the pygmy-owls. Populations without genetic variation are often

considered imperiled due to either the effect of low population

numbers, increased chance of inbreeding, or both (Soule 1986, Meffe and

Carroll 1994).

Pesticides may pose an additional threat to the pygmy-owl where it

occurs in floodplain areas that are now largely agricultural.

Jahrsdoerfer and Leslie (1988) note that more than 100 pesticides are

used on agricultural crops throughout the lower Rio Grande Valley.

Pesticide application occurs year-round. Because crops, such as cotton,

are grown repeatedly year after year, an accumulation of resistant

pesticides may result.

Pesticide contamination is described as ``widespread'' throughout

the inland waters of the lower Rio Grande Valley, and includes

concentrations of DDT, dieldrin, endrin, lindane, endosulfan, Guthion,

and PCB's which exceeded 1976 EPA criteria for propagation of fish and

wildlife. Without appropriate precautions, these agents may potentially

affect pygmy-owls through direct toxicity or effects on their food

base. No quantitative data on the effects of this potential threat on

the pygmy-owl are known at this time. While the effects of pesticides

such as DDT on the reproductive success of other bird species are well

known, there are no data on whether pesticides are currently affecting

the pygmy-owl.

The pygmy-owl nests in cavities excavated by woodpeckers in trees

or large cacti. Some sources (AGFD 1988) believe that increasing

competition with exotic European starling (Sturnus vulgaris) for nest

cavities may be a threat to cavity nesters like the pygmy-owl.

Starlings were first reported as occurring in Arizona in 1946 (Monson

1948).

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by this subspecies in relation to the Act's

definitions of ``endangered'' and ``threatened.'' An endangered species

is defined as one which is in danger of extinction throughout all or a

significant portion of its range (section 3(6) of the Act). A

threatened species is one which is likely to become an endangered

species within the foreseeable future throughout all or a significant

portion of its range (section 3(19) of the Act).

In Arizona, the pygmy-owl exists in extremely low numbers, the vast

majority of its former habitat can no longer support the species, and

much of the remaining habitat is under immediate and significant

threat. The Service thus determines that the cactus ferruginous pygmy-

owl faces imminent extinction and therefore meets the definition of

endangered under the Act. The Service has determined that the pygmy-owl

in Texas does not warrant listing as a threatened species. The Service

will continue to review the status of this subspecies in Mexico.

[[Page 10745]]

Critical Habitat

Critical habitat, is defined in section 3 of the Act as--(i) The

specific areas within the geographical area occupied by a species, at

the time it is listed in accordance with the Act, on which are found

those physical or biological features (I) essential to the conservation

of the species and (II) that may require special management

considerations or protection, and; (ii) specific areas outside the

geographical area which are occupied by a species at the time it is

listed, upon a determination that such areas are essential for the

conservation of the species. ``Conservation'' means the use of all

methods and procedures needed to bring the species to the point at

which listing under the Act is no longer necessary.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 242.12) require that, to the maximum extent prudent

and determinable, the Secretary designate critical habitat at the time

a species is determined to be endangered or threatened. Critical

habitat was proposed for the cactus ferruginous pygmy-owl in Arizona in

the proposed rule. However, because the pygmy-owl has been a sought

after species for birding enthusiasts, the Service now believes that

the designation of critical habitat and the subsequent publication of

location maps and detailed locality descriptions would harm the species

rather than aid in its conservation. The Service determines that

designation of critical habitat for the cactus ferruginous pygmy-owl in

Arizona is not prudent.

Although the Service is not finalizing the portion of the proposed

rule to list the Texas population as threatened and critical habitat

designation is not an issue for that population, the Service is aware

that the Texas population may be impacted by birding activities, as

well. However, pygmy-owls in Texas are located on private land, which

benefits from bird enthusiasts. The Texas population does not face the

same potential harm or harassment threats as the Arizona pygmy-owls

occurring on public land because of more limited access to the Texas

population. Additionally, some areas of private land that allow birding

excursions may be specifically managed to benefit pygmy owls in Texas.

As noted in factor B ``Overutilization for commercial,

recreational, scientific, or educational purposes'' in this rule, the

pygmy-owl is highly sought by birders concentrating on the remaining

known localities in the United States. Excessive uncontrolled attention

by birders may affect the occurrence, behavior, and reproductive

success of the pygmy-owl. A recently advertised birding excursion in

southeast Arizona specifically mentions pygmy-owls as a target species.

The Service feels that although the proposed rule and the proposed

critical habitat designation contained therein provided maps and

detailed location descriptions, no new pygmy-owl localities discovered

since the publication of the proposed rule have been disclosed. Pygmy-

owl locations in Arizona should not be disclosed because of the

potential for harassment and harm.

Additionally, the Service is concerned that the publication of

specific pygmy-owl localities in Arizona would make the species and

specifically pygmy-owl nests, more vulnerable to acts of vandalism, and

increase the difficulties of enforcement. Because of the increased

pressures exerted by birding enthusiasts and the possibility of acts of

vandalism, the Service believes that conservation of the pygmy-owl is

better addressed through the recovery process and through the section 7

consultation process. Designation of critical habitat for the pygmy owl

in Arizona is not prudent.

Special Rule

The Service included a proposed special rule under section 4(d) of

the Act for the proposed threatened pygmy-owl population in Texas. (See

the proposed rule for a discussion of the proposed special rule).

However, the Service has determined that the cactus ferruginous pygmy-

owl in Texas does not warrant threatened status and thus the special

rule is no longer under consideration.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

practices. Recognition through listing encourages and results in

conservation actions by Federal, State, and private agencies, groups,

and individuals. The Act provides for possible land acquisition and

cooperation with the states and authorizes recovery plans for all

listed species. The protection required for Federal agencies and the

prohibitions against taking and harm are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened and with respect to its critical

habitat, if any is being designated. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

Part 402. Section 7(a)(4) requires Federal agencies to confer

informally with the Service on any action that is likely to jeopardize

the continued existence of a proposed species or result in destruction

or adverse modification of proposed critical habitat. If a species is

listed subsequently, Section 7(a)(2) requires Federal agencies to

ensure that activities they authorize, fund, or carry out are not

likely to jeopardize the continued existence of such a species or to

destroy or adversely modify its critical habitat. If a Federal action

may affect a listed species or its critical habitat, the responsible

Federal agency must enter into consultation with the Service.

The Act and implementing regulations found at 50 CFR 17.21 and

17.31 set forth a series of general prohibitions and exceptions that

apply to all endangered and threatened wildlife, respectively. These

prohibitions, in part, make it illegal for any person subject to the

jurisdiction of the United States to take (includes harass, harm,

pursue, hunt, shoot, wound, kill, trap, or collect; or to attempt any

of these), import or export, ship in interstate commerce in the course

of commercial activity, or sell or offer for sale in interstate or

foreign commerce any listed species. It also is illegal to possess,

sell, deliver, carry, transport, or ship any such wildlife that has

been taken illegally. Certain exceptions apply to agents of the Service

and the State conservation agencies.

Regulations at 50 CFR 17.3 define the terms ``harm'' and ``harass''

as used under the Act's definition of ``take.'' ``Harm'' is defined as

an act which actually kills or injures wildlife. Such acts may include

significant habitat modification that impairs essential behavioral

patterns, including breeding, feeding, or sheltering. ``Harass'' is

defined as an intentional or negligent act or omission which creates a

likelihood of injury to wildlife by annoying it to such an extent as to

significantly disrupt normal behavior patterns, including, but not

limited to, breeding, feeding, or sheltering.

Permits may be issued to carry out otherwise prohibited activities

involving endangered and threatened wildlife species under certain

circumstances. Regulations governing permits are at 50 CFR 17.22,

17.23, and 17.32. Such permits are available for scientific purposes,

to enhance the propagation or survival of the species, and/or for

incidental take in connection

[[Page 10746]]

with otherwise lawful activities. For threatened species, there are

also permits for zoological exhibition, educational purposes, or

special purposes consistent with the purpose of the Act.

Service policy published in the Federal Register on July 1, 1994

(59 FR 34272), requires, to the maximum practicable extent at the time

a species is listed, identification of those activities that would or

would not likely constitute a violation of section 9 of the Act. The

intent of this policy is to increase public awareness of the effect of

this listing on proposed and ongoing activities within the species'

range.

The Service believes that, based on the best available information,

the following actions will not result in a violation of section 9--

(1) Clearing of unoccupied habitat;

(2) Removal of trees within occupied habitat that are not known to

be used for nesting, and as long as the number removed would not result

in significant habitat fragmentation or substantially diminish the

overall value of the habitat;

(3) One-time or short-term noise disturbance during the breeding

season;

(4) Clearing of vegetation in or along previously disturbed areas,

such as fences or roads;

(5) Low level flights more than one mile to the side of or greater

than 300 m (1000 ft) above occupied habitat;

(6) Grazing, to a level that does not seriously deplete understory

vegetation.

Activities that the Service believes could potentially harm,

harass, or otherwise take the pygmy-owl include, but are not limited

to--

(1) Removal of nest trees;

(2) Removal of a nest box in use by the pygmy-owl;

(3) Clearing or significant modification of occupied habitat,

whether or not the nest tree is included;

(4) Sustained noise disturbance during the breeding season;

(5) Pursuit or harassment of individual birds;

(6) Frequent or lengthy low-level flights over occupied habitat

during the breeding season;

(7) Severe overgrazing that results in the removal of understory

vegetation.

Questions regarding whether specific activities will constitute a

violation of section 9 should be directed to the Field Supervisor of

the Service's Arizona Ecological Services Field Office (see ADDRESSES

section). Requests for copies of the regulations concerning listed

species and general inquiries regarding prohibitions and permits may be

addressed to the Fish and Wildlife Service, Ecological Services,

Endangered Species Permits, P.O. Box 1306, Albuquerque, New Mexico,

87103-1306 (505/248-6282).

National Environmental Policy Act

The Service has determined that Environmental Assessments and

Environmental Impact Statements, as defined under the authority of the

National Environmental Policy Act of 1969, need not be prepared in

connection with regulations adopted pursuant to section 4(a) of the

Act. A notice outlining the Service's reasons for this determination

was published in the Federal Register on October 25, 1983 (48 FR

49244).

Required Determinations

The Service has examined this regulation under the Paperwork

Reduction Act of 1995 and found it to contain no information collection

requirements. This rulemaking was not subject to review by the Office

of Management and Budget under Executive Order 12866.

References Cited

A complete list of all references cited herein is available upon

request from the Field Supervisor, Arizona Ecological Services Field

Office (see ADDRESSES section).

Author: The primary authors of this final rule are Mary E.

Richardson for Arizona at 602/640-2720 and Bill Seawell for Texas at

(512/997-9005 (see ADDRESSES section).

Lists of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Section 17.11(h) is amended by adding the following, in

alphabetical order under Birds, to the list of Endangered and

Threatened Wildlife, to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

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

Species Vertebrate

------------------------------------------------------ population where Critical Special

Historic range endangered or Status When listed habitat rules

Common name Scientific name threatened

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

* * * * * * *

Birds

* * * * * * *

Pygmy-owl, cactus ferruginous... Glaucidium U.S.A. (AZ, TX), AZ................. E 610 NA NA

brasilianum Mexico.

cactorum.

* * * * * * *

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

[[Page 10747]]

Dated: February 28, 1997.

J.L. Gerst,

Acting Director, Fish and Wildlife Service.

[FR Doc. 97-5788 Filed 3-7-97; 8:45 am]

BILLING CODE 4310-55-P