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Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules
What this document does. We propose to list the cactus ferruginous pygmy-owl as a threatened species under the Act with a rule issued under section 4d of the Act. As explained in this document, we find that the designation of critical habitat for the cactus ferruginous pygmy-owl is not determinable at this time.
The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: A The present or threatened destruction, modification, or curtailment of its habitat or range; B overutilization for commercial, recreational, scientific, or educational purposes; C disease or predation; D the inadequacy of existing regulatory mechanisms; or E
other natural or manmade factors affecting its continued existence.
We have determined that threats to the cactus ferruginous pygmy-owl include: 1 Habitat loss and fragmentation from urbanization, invasive species, and agricultural or forest production; and 2 climate change effects from future changes in climate and climate conditions effects from current and past climate, resulting in hotter, more arid conditions throughout much of the subspecies geographic range. The proposed 4d rule would generally prohibit the same activities as prohibited for an endangered species but would allow exemptions for specific types of education and outreach activities already permitted under a Migratory Bird Treaty Act permit and habitat restoration and enhancement activities that improve habitat conditions for the cactus ferruginous pygmy-owl.
Section 4a3 of the Act requires the Secretary of the Interior Secretary to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. As explained later in this proposed rule, we find that the designation of critical habitat for the cactus ferruginous pygmy-owl is not determinable at this time.

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Information Requested We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible.
Therefore, we request comments or information from other governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule.
We particularly seek comments concerning:

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1 The subspecies biology, range, and population trends, including:
a Biological or ecological requirements of the subspecies, including habitat requirements for feeding, breeding, and sheltering;
b Genetics and taxonomy;
c Historical and current range, including distribution patterns;
d Historical and current population levels, and current and projected trends;
and e Past and ongoing conservation measures for the subspecies, its habitat, or both, and the effectiveness of such measures.
2 Factors that may affect the continued existence of the subspecies, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors. We are also seeking information indicating where threats are disproportionately affecting the cactus ferruginous pygmy-owl within specific portions of its geographical range.
3 Biological, commercial trade, or other relevant data concerning any threats or lack thereof to this subspecies and existing regulations that may be addressing those threats.
4 Additional information concerning the historical and current status, range, distribution, and population size of this subspecies, including the locations of any additional populations of this subspecies.
5 Information on regulations that are necessary and advisable to provide for the conservation of the cactus ferruginous pygmy-owl and that the Service can consider in developing a 4d rule for the subspecies. In particular, we are seeking information concerning the extent to which we should include any of the section 9
prohibitions in the 4d rule or whether we should consider any additional exceptions from the prohibitions in the 4d rule. We encourage public and agency comments related to our consideration of using the State permitting process, if required, in the 4d rule as the basis of an exception to the prohibitions on take related to certain pygmy-owl survey and monitoring activities. We are also specifically seeking documentation of the effects and benefits of properly managed grazing on cactus ferruginous pygmy-owl habitat, as well as the threat of current and historical improper grazing in both the United States and Mexico.
6 The reasons why we should or should not designate habitat as critical habitat under section 4 of the Act 16
U.S.C. 1531 et seq., including
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information to inform the following factors that the regulations identify as reasons why designation of critical habitat may be not prudent:
a The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;
b The present or threatened destruction, modification, or curtailment of a species habitat or range is not a threat to the species, or threats to the species habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7a2 of the Act;
c Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; or d No areas meet the definition of critical habitat.
7 Specific information on:
a Demographic information for the cactus ferruginous pygmy-owl, including dispersal patterns, prey relationships, survival, reproduction, sources of mortality, updated occurrence records, and population trends;
b The amount and distribution of cactus ferruginous pygmy-owl habitat, including habitat connectivity, patch size, geographic range, and future climate change effects on the subspecies habitat;
c Which areas, that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the subspecies, should be included in the designation and why;
d Any additional areas occurring within the range of the species, i.e., Yuma, Maricopa, Pinal, Pima, Santa Cruz, Cochise, Graham, Gila counties in Arizona and Kleberg, Kenedy, Willacy, Cameron, Hidalgo, Brooks, Jim Wells, Duval, Jim Hogg, Starr, Zapata, and Webb counties in Texas, that should be included in the designation because they 1 are occupied at the time of listing and contain the physical or biological features that are essential to the conservation of the species and may require special management considerations, or 2 are unoccupied at the time of listing and are essential for the conservation of the species;
e Special management considerations or protection that may be needed in critical habitat areas, including managing for the potential effects of climate change; and f Which areas, not occupied at the time of listing, are essential for the
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