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12-Month Finding on a Petition to List the Cactus Ferruginous Pygmy-Owl As Threatened Or Endangered with Critical Habitat; Proposed Rule

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12-Month Finding on a Petition to List the Cactus Ferruginous Pygmy-Owl As Threatened Or Endangered with Critical Habitat; Proposed Rule Vol. 76 Wednesday, No. 193 October 5, 2011 Part IV Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Cactus Ferruginous Pygmy-Owl as Threatened or Endangered With Critical Habitat; Proposed Rule VerDate Mar<15>2010 19:25 Oct 04, 2011 Jkt 226001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\05OCP4.SGM 05OCP4 jlentini on DSK4TPTVN1PROD with PROPOSALS4 61856 Federal Register / Vol. 76, No. 193 / Wednesday, October 5, 2011 / Proposed Rules DEPARTMENT OF THE INTERIOR questions regarding this finding to the stating that we were proceeding with a above address. review of the petition. Fish and Wildlife Service The petitioners described three FOR FURTHER INFORMATION CONTACT: potentially listable entities of the 50 CFR Part 17 Steve Spangle, Field Supervisor, pygmy-owl: (1) An Arizona distinct Arizona Ecological Services Office (see population segment (DPS) of the pygmy- [FWS–R2–ES–2011–0086; MO 92210–0– ADDRESSES); telephone 602–242–0210; 0008] owl; (2) a Sonoran Desert DPS of the or by facsimile 602–242–2513. If you pygmy-owl; and (3) the western use a telecommunications device for the subspecies of the pygmy-owl, which Endangered and Threatened Wildlife deaf (TDD), please call the Federal and Plants; 12-Month Finding on a they identified as Glaucidium ridgwayi Information Relay Service (FIRS) at cactorum. As an immediate action, the Petition To List the Cactus 800–877–8339. Ferruginous Pygmy-Owl as Threatened petitioners requested that we or Endangered With Critical Habitat SUPPLEMENTARY INFORMATION: promulgate an emergency listing rule for the pygmy-owl. In our June 25, 2007, AGENCY: Fish and Wildlife Service, Background response letter to the petitioners, we Interior. Section 4(b)(3)(B) of the Endangered described our evaluation of the need for ACTION: Notice of 12-month petition Species Act (Act) (16 U.S.C. 1531 et emergency listing and stated our finding. seq.) requires that, for any petition to determination that emergency listing revise the Federal Lists of Endangered was not warranted for the pygmy-owl. SUMMARY: We, the U.S. Fish and and Threatened Wildlife and Plants that We also stated that the designation of Wildlife Service (Service), announce a contains substantial scientific and critical habitat would be considered if 12-month finding on a petition to list commercial information that listing a listing of the pygmy-owl was found to the cactus ferruginous pygmy-owl species may be warranted, we make a be warranted. (Glaucidium brasilianum cactorum) as finding within 12 months of the date of In the Federal Register of June 2, 2008 threatened or endangered and to receipt of the petition. In this finding, (73 FR 31418), we published a 90-day designate critical habitat under the we determine whether the petitioned finding in which we determined that the petition presented substantial scientific Endangered Species Act of 1973, as action is: (1) Not warranted, (2) and commercial information to indicate amended (Act). Additionally, the warranted, or (3) warranted, but that listing the pygmy-owl may be petition requested that we recognize and immediate proposal of a regulation warranted. A more thorough summary list a western subspecies of the cactus implementing the petitioned action is of previous Federal actions related to ferruginous pygmy-owl (Glaucidium precluded by other pending proposals to the pygmy-owl can be found in the June ridgwayi cactorum), or, alternatively, determine whether species are two potential distinct population 2, 2008 90-day finding (73 FR 31418). threatened or endangered, and Following the publication of our 90- segment (DPS) configurations. After expeditious progress is being made to review of all available scientific and day finding on this petition, we initiated add or remove qualified species from a status review to determine if listing of commercial information, we find that the Lists of Endangered and Threatened Glaucidium ridgwayi cactorum is not a the pygmy-owl was warranted. During Wildlife and Plants. Section 4(b)(3)(C) of our status review, we solicited and valid taxon, and, therefore, not a listable the Act requires that we treat a petition entity under the Act. Additionally, received information from the general for which the requested action is found public and other interested parties on using the currently accepted taxonomic to be warranted but precluded as though classification of the pygmy-owl the status of the pygmy-owl. We resubmitted annually on the date of consulted with experts, agencies, (Glaucidium brasilianum cactorum), we such finding. Therefore, a new finding find that listing the pygmy-owl is not countries, and tribes to gather pertinent is to be made within 12 months and information, and ensure that experts warranted at this time throughout all or subsequently thereafter until we take a significant portion of its range, and affected parties were aware of the action on a proposal to list or withdraw status review and of the opportunity to including the petitioned and other our original finding. We must publish potential DPS configurations. However, provide input. We identified, contacted, these 12-month findings in the Federal and consulted with a diverse group of we ask the public to submit to us at any Register. time any new information concerning experts and interested persons in an the taxonomy or status of the pygmy- Previous Federal Actions effort to ensure that we gathered and owl, as well as any new information on evaluated the best available scientific the threats to the pygmy-owl or its On March 20, 2007, we received a and commercial information on this habitat. petition dated March 15, 2007, from the subspecies to inform our 12-month Center for Biological Diversity and finding. DATES: The finding announced in this Defenders of Wildlife (petitioners) On December 12, 2009, we received a document was made on October 5, 2011. requesting that we list the cactus 60-day Notice of Intent to Sue from the ADDRESSES: This finding is available on ferruginous pygmy-owl (Glaucidium petitioners for failure to produce a the Internet at http:// brasilianum cactorum) (pygmy-owl) as a timely 12-month finding on their www.regulations.gov at Docket Number threatened or endangered species under petition. They subsequently filed suit on FWS–R2–ES–2011–0086. Supporting the Endangered Species Act (Act) (CBD February 17, 2010, in the U.S. District documentation we used in preparing and DOW 2007). Additionally, the Court for the District of Arizona. That this finding is available for public petition requested the designation of complaint was subsequently inspection, by appointment, during critical habitat concurrent with listing. consolidated in the U.S. District Court normal business hours at the U.S. Fish The petition clearly identified itself as for the District of Columbia along with and Wildlife Service, Arizona Ecological a petition and included the another case filed by the Center for Services Office, 2321 West Royal Palm identification information, as required Biological Diversity and thirteen cases Road, Suite 103, Phoenix, AZ 85021– in 50 CFR 424.14(a). We acknowledged filed by Wild Earth Guardians, all 4951. Please submit any new the receipt of the petition in a letter to related to petition finding deadlines. information, materials, comments, or the petitioners dated June 25, 2007, The court in the consolidated case VerDate Mar<15>2010 19:25 Oct 04, 2011 Jkt 226001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\05OCP4.SGM 05OCP4 jlentini on DSK4TPTVN1PROD with PROPOSALS4 Federal Register / Vol. 76, No. 193 / Wednesday, October 5, 2011 / Proposed Rules 61857 approved two settlement agreements ‘‘endangered species’’ and ‘‘threatened attempt to present the most current between the parties on September 9, species,’’ which requires analysis of taxonomic classifications, but 2011. In re Endangered Species Act whether a ‘‘species’’ is endangered or discrepancies among checklists Deadline Litigation, Misc. Action No. threatened within ‘‘a significant portion demonstrate that there is scientific 10–377 (EGS), MDL Docket No. 2165 of its range’’ (see Significant Portion of debate and disagreement over some (D.D.C. Sept. 9, 2011) (Docs. 55 & 56). the Range section below). Finally, we accepted taxonomic designations. The settlement agreements stipulate that make our finding with regard to the Taxonomic changes within these the Service will submit to the Federal petitioned action and our evaluation as checklists generally occur as a result of Register a proposed listing rule or a not described above. a proposal to change the existing warranted finding for the cactus Species Information taxonomy. Lack of reference to a ferruginous pygmy-owl no later than the proposed taxonomic change within end of Fiscal Year 2011, which is Description these checklists cannot be interpreted as September 30, 2011. The pygmy-owl is in the order rejection (or acceptance) of a proposed This notice constitutes a 12-month Strigiformes and the family Strigidae. It change. It may simply mean a proposal finding for the petition to list the is a small bird, approximately 17 has not been submitted or evaluated. pygmy-owl as threatened or endangered. centimeters (cm) (6.75 inches (in)) long. Absolute reliance on one or more of We base our finding on a review of the Generally, male pygmy-owls average 58 these avian checklists, absent best scientific and commercial grams (g) to 66 g (2.0 to 2.3 ounces (oz)) consideration of recent studies, would information available, including all and females average 70 g to 75 g (2.4 to be arbitrary on the part of the Service. substantive information received during 2.6 oz) (AGFD 2008b, p. 3; Proudfoot The Service has the responsibility for our status review. and Johnson 2000, p.
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