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Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules Determination of Cactus Ferruginous Pygmy-Owls Status Section 4 of the Act 16 U.S.C. 1533
and its implementing regulations 50
CFR part 424 set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines an endangered species as a species in danger of extinction throughout all or a significant portion of its range, and a threatened species as a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of an endangered species or a threatened species because of any of the following 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.

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Status Throughout All of Its Range We examined the following threats to the cactus ferruginous pygmy-owl:
Climate change and climate condition Factor E, habitat loss and fragmentation Factor A, human activities and disturbance Factors B
and E, human-caused mortality Factors B and E, disease and predation Factor C, and small population size Factor E, and we determined that the primary threats to the subspecies are climate change and climate condition, and habitat loss and fragmentation. Existing regulatory mechanisms Factor D and conservation efforts do not address the threats to the cactus ferruginous pygmyowl to the extent that listing the subspecies is not warranted.
Population resiliency is highly variable across the range of the pygmyowl. Overall, three analysis units maintain a moderate level of resiliency, with western Mexico maintaining a high level of resiliency and Arizona with a low level of resiliency. Therefore, the majority of the analysis units we examined maintain some ability to withstand stochastic events.
Additionally, the western Mexico and northeast Mexico analysis units are estimated to support tens of thousands of pygmy-owls. Due to the broad geographic distribution and network of population groups that are connected within and between some analysis units throughout most of its range, the pygmy-

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owl has some ability to recolonize following catastrophic events and is considered to have adequate redundancy. Additionally, the cactus ferruginous pygmy-owl currently has high genetic and ecological variability across the range. This ecological diversity provides the subspecies with sufficient representation and may allow the pygmy-owl to adapt to, and survive, future environmental change.
After evaluating threats to the subspecies and assessing the cumulative effect of the threats under the Acts section 4a1 factors, we conclude that the risk factors acting on the cactus ferruginous pygmy-owl and its habitat, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate that the subspecies is in danger of extinction now an endangered species throughout all of its range. Despite current stressors, the subspecies currently maintains adequate resiliency, redundancy, and representation across the range such that the subspecies is currently able to withstand stochastic and catastrophic events and maintain adequate genetic and ecological variation throughout its range.
However, our analysis of the cactus ferruginous pygmy-owls future conditions shows that the threats to the subspecies are likely to continue into the future, resulting in continued loss and fragmentation of habitat putting the species at risk of extinction within the foreseeable future.
Under all future scenarios, we project a continued reduction in species viability throughout the range of the subspecies due to climate change, habitat loss, and habitat fragmentation.
In 30 years, even under our most optimistic scenario, the reduced effects scenario, there will be no analysis units in high condition. This represents a decrease from current conditions with one analysis unit declining from high to moderate condition, and one analysis unit declining from moderate to low condition. Additionally, despite maintaining their current condition categories over the next 30 years, habitat and demographic conditions within the other three analysis units continue to decline. Over the next 30 years, many of the analysis units will become increasingly vulnerable to extirpation through the degradation of habitat conditions. We anticipate that urbanization and development will continue under all future scenarios and in all analysis units. Invasive species will continue to spread into pygmy-owl habitat in most analysis units and deforestation and wood harvesting will continue in all three analysis units in
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Mexico. Continued loss and degradation of pygmy-owl habitat will reduce overall species resiliency, impeding the ability of the subspecies to withstand stochastic events and increasing the risk of extirpation following such events.
The loss of population groups will lead to a reduction in representation, reducing the subspecies ability to adapt over time to changes in the environment, such as climate changes.
This expected reduction in both the number and distribution of sufficiently resilient population groups will reduce redundancy and impede the ability of the subspecies to recolonize following catastrophic disturbance. Thus, after assessing the best available information, we conclude that the cactus ferruginous pygmy-owl is not currently in danger of extinction but is likely to become in danger of extinction within the foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. The court in Center for Biological Diversity v. Everson, 2020
WL 437289 D.D.C. Jan. 28, 2020
Center for Biological Diversity, vacated the aspect of the Final Policy on Interpretation of the Phrase Significant Portion of Its Range in the Endangered Species Acts Definitions of Endangered Species and Threatened Species 79 FR 37578; July 1, 2014
that provided that the Service does not undertake an analysis of significant portions of a species range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its rangethat is, whether there is any portion of the species range for which both 1 the portion is significant; and 2 the species is in danger of extinction in that portion.
Depending on the case, it might be more efficient for us to address the significance question or the status question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species range.
Following the courts holding in Center for Biological Diversity, we now consider whether there are any significant portions of the species range where the species is in danger of
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