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Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules
threatened species under the Act CBD
and DOW 2007, entire. The petitioners described three potentially listable entities of the pygmy-owl: 1 An Arizona DPS of the pygmy-owl; 2 a Sonoran Desert DPS of the pygmy-owl;
and 3 the western subspecies of the pygmy-owl, which they identified as Glaucidium ridgwayi cactorum. On October 5, 2011, we published in the Federal Register 76 FR 61856 a 12month finding on the petition to list the pygmy-owl as endangered or threatened.
We found that Glaucidium ridgwayi cactorum was not a valid taxon and, therefore, not a listable entity under the Act. Additionally, using the currently accepted taxonomic classification of the pygmy-owl Glaucidium brasilianum cactorum, we found that listing the pygmy-owl was not warranted throughout all or a significant portion of its range, including the petitioned and other potential DPS configurations.
In 2014, the Center for Biological Diversity and Defenders of Wildlife challenged our determination that listing the pygmy-owl was not warranted under the Act Ctr. For Biological Diversity v. Jewell, 248 F.
Supp. 3d 946. The challenge centered on whether we had correctly defined language in the Act authorizing listing of a species that is endangered or threatened in either all or a significant portion of its range SPR. The plaintiffs challenged our final policy interpreting this SPR language SPR
Policy and how it was applied in listing determinations. In its decision on March 28, 2017, the court reasoned that if a portion of a species range is significant only if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction, and the species is endangered or threatened in that portion as would be required for listing, then the species is necessarily endangered or threatened overall 248 F.Supp.3d at 959. The court thus found the SPR
Policy invalid because it defined significant in such a way as to limit the SPR language to situations in which it is unnecessary. The court vacated and remanded the definition of significant in the SPR Policy. The not-warranted finding for the cactus ferruginous pygmy-owl relied on a draft of this SPR
Policy, which was slightly different than the final policy. The draft SPR Policy interpretation defined a range portion as significant if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction i.e., endangered 76 FR 76987, December
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9, 2011; p. 77002. The court also found this interpretation of SPR impermissible by limiting the SPR language to situations in which it is unnecessary, and the court vacated our not-warranted finding for the pygmy-owl. On November 14, 2019, the parties to the lawsuit agreed that the Service would submit a 12-month finding to the Federal Register no later than August 5, 2021. On July 6, 2021, the court granted an extension to allow additional time to review new data provided by the Arizona Game and Fish Department.
The new deadline requires that the Service submit the 12-month finding to the Federal Register no later than December 16, 2021. This document complies with the courts deadline.
Distinct Population Segment Analysis Regarding the petitioned DPSs in Arizona and the Sonoran Desert included in the 2007 petition, we reaffirm our October 5, 2011, 12-month finding 76 FR 61856. Specifically, we considered a DPS for the Sonoran Desert population of the pygmy-owl and concluded that this population does not meet the discreteness conditions of the Services policy regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act 61 FR 4722, February 7, 1996. We also considered a DPS for the Arizona population of the pygmy-owl and concluded that, while the discreteness criteria for the DPS
were met, we could not show that this DPS was significant to the taxon as a whole. For information regarding our rationale, please see Analysis of Potential Distinct Population Segments in our previous 12-month finding 76 FR
61856, October 5, 2011, pp. 61885
61889. We will accept comments related to these DPS decisions during the public comment period on this proposed rule see DATES, above.
Supporting Documents A species status assessment SSA
team prepared an SSA report for the cactus ferruginous pygmy-owl. The SSA
team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the subspecies, including the impacts of past, present, and future factors both negative and beneficial affecting the subspecies. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 59 FR 34270, and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act,
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we sought the expert opinions of five appropriate specialists regarding the SSA report. We received three responses. We also sent the SSA report to 13 partners, including Tribes and scientists with expertise in land management, pygmy-owl and raptor ecology, and climate science, for review.
We received review from 11 partners, including State and Federal agencies, universities, and nonprofit organizations.
I. Proposed Listing Determination Background A thorough review of the taxonomy, life history, and ecology of the cactus ferruginous pygmy-owl is presented in the SSA report. We summarize this information here.
The cactus ferruginous pygmy-owl is a diurnal, nonmigratory subspecies of ferruginous pygmy-owl Glaucidium brasilianum and is found from central Arizona south to Michoacan, Mexico, in the west and from south Texas to Tamaulipas and Nuevo Leon, Mexico, in the east. Pygmy-owls eat a variety of prey including birds, insects, lizards, and small mammals, with the relative importance of prey type varying throughout the year.
The pygmy-owl is a small bird, approximately 17 centimeters cm 6.7
inches in long. Generally, male pygmy-owls average 58 grams g to 66 g 2.0 to 2.3 ounces oz and females average 70 g to 75 g 2.4 to 2.6 oz. The pygmy-owl is reddish brown overall, with a cream-colored belly streaked with reddish brown. The crown is lightly streaked, and a pair of dark brown or black spots outlined in white occurs on the nape, suggesting eyes Oberholser 1974, p. 451. The species lacks obvious ear tufts Santillan et al.
2008, p. 154, and the eyes are yellow.
The tail is relatively long for an owl and is reddish brown in color, with darker brown bars. Males have pale bands between the dark bars on the tail, while females have darker reddish bands between the dark bars.
Cactus ferruginous pygmy-owls are secondary cavity nesters, nesting in cavities of trees and columnar cacti, with nesting substrate varying throughout its range. Pygmy-owls can breed in their first year and typically mate for life, with both sexes breeding annually. Clutch size can vary from two to seven eggs with the female incubating the eggs for 28 days Johnsgard 1988, p.
162; Proudfoot and Johnson 2000, p.
11. Fledglings disperse from their natal sites about 8 weeks after they fledge Flesch and Steidl 2007, p. 36. Pygmyowls live on average 3 to 5 years, but
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