[Federal Register: September 7, 2005 (Volume 70, Number 172)]
[Proposed Rules]               
[Page 53139-53140]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU22; 1018-AI48

Endangered and Threatened Wildlife and Plants; Proposed Rule To 
Remove the Arizona Distinct Population Segment of the Cactus 
Ferruginous Pygmy-owl From the Federal List of Endangered and 
Threatened Wildlife; Proposal To Withdraw the Proposed Rule To 
Designate Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of public hearing.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce 
that we will hold a public hearing (see DATES and ADDRESSES sections) 
on our proposed rule to remove the Arizona distinct population segment 
(DPS) of the cactus ferruginous pygmy-owl (Glaucidium brasilianum 
cactorum) (pygmy-owl) from the Federal List of Endangered and 
Threatened Wildlife, eliminate its currently designated critical 
habitat, and to withdraw its proposed new critical habitat. This public 
hearing will allow all interested parties an opportunity to comment on 
our proposed actions.

DATES: Comments must be submitted directly to the Service (see 
ADDRESSES) on or before October 3, 2005, or at the public hearing. Any 
comments received after the closing date may not be considered in the 
final determination on the proposal.
    We will hold a public hearing on September 20, 2005, from 6:30 p.m. 
to 9 p.m.

ADDRESSES: Public Hearing. The public hearing will be held in Tuscon, 
Arizona, at the Tucson Convention Center, Apache--Greenlee meeting 
rooms, 260 South Church Avenue, Tuscon, AZ 85710.
    Comments. If you wish to provide comments/and or information, you 
may submit your comments and materials by any one of several methods:
    1. You may submit written comments and information by mail or hand-
delivery to the Field Supervisor, Arizona Ecological Services Field 
Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, Arizona 85021.
    2. Written comments may be sent by facsimile to (602) 242-2513.
    3. You may send your comments by electronic mail (e-mail) to: 

[[Page 53140]]

    For directions on how to submit electronic comments, as well as 
information on requesting reasonable accommodations to attend the 
public hearing, see the ``Public Comments Solicited'' section below.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, 
Arizona Ecological Services Field Office (telephone, 602-242-0210; 
facsimile, 602-242-2513; or electronic mail, steve_spangle@fws.gov). 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 
hours a day, 7 days a week.



    The Arizona DPS of the pygmy-owl was listed as endangered on March 
10, 1997 (62 FR 10730), and critical habitat was designated on July 12, 
1999 (64 FR 37419). On January 9, 2001, a coalition of plaintiffs filed 
a lawsuit with the District Court of Arizona challenging the validity 
of our listing of the pygmy-owl as a DPS and the designation of its 
critical habitat. After the District Court of Arizona remanded the 
designation of critical habitat (National Association of Home Builders 
et al. v. Norton, Civ.-00-0903-PHX-SRB), we proposed a new critical 
habitat designation on November 27, 2002 (67 FR 7102). Ultimately, as a 
result of this lawsuit, the United States Court of Appeals for the 
Ninth Circuit issued an opinion on August 19, 2003, stating that ``the 
FWS acted arbitrarily and capriciously in designating the Arizona 
pygmy-owl population as a DPS under the DPS Policy'' (National 
Association of Home Builders v. Norton, 340 F. 3d 835, 852 (9th Cir. 
2003)). In making DPS determinations, we rely upon the Service's Policy 
Regarding the Recognition of Distinct Vertebrate Population Segments 
(DPS Policy) (61 FR 4722).
    In light of the Ninth Circuit's opinion, we have reassessed the 
application of the DPS significance criteria to the Arizona pygmy-owl. 
Based on our assessment, we do not believe that the available 
information and science satisfy the criteria to indicate that pygmy-
owls in Arizona are an entity that qualifies for listing under the Act. 
Accordingly, we published a proposed rule on August 3, 2005 (70 FR 
44547) to remove the Arizona population of pygmy-owls from the list in 
50 CFR 17.11, remove the critical habitat designation for this 
population at 50 CFR 17.95, and withdraw our November 27, 2002, 
proposed rule to designate new critical habitat. This document notifies 
the public that we are holding a public hearing on our August 3, 2005, 
proposed rule (see DATES and ADDRESSES).

Public Comments Solicited

    We intend that any final action resulting from the proposal will be 
based on the best available information. We have gathered and evaluated 
new information related to the pygmy-owl that has become available 
since the 1997 listing and are seeking any other pygmy-owl information. 
We will continue to support surveys of pygmy-owls in Mexico to further 
elucidate the status of the species in Mexico, and to identify threats 
to the population.
    We are soliciting comments or suggestions from the public, other 
concerned governmental agencies, the scientific community, industry, or 
any other interested party concerning the proposed rule. Comments 
should be as specific as possible. We are particularly interested in 
comments concerning:
    (1) Biological, genetic, and/or morphological data related to the 
taxonomic classification of the pygmy-owl throughout its current range;
    (2) The location and characteristics of any additional populations 
not considered in previous work that might have bearing on the current 
population status;
    (3) Additional information related to current versus historical 
range, current distribution, genetic diversity, and population sizes of 
the Arizona pygmy-owl population and its contribution to the taxon as a 
    (4) Status of the pygmy-owl in Mexico, particularly threats to 
populations or habitat; and
    (5) Information related to discreteness, significance, and 
conservation status of any potential pygmy-owl DPS.
    All previous comments and information submitted on the proposed 
rule need not be resubmitted. We will take into consideration the 
comments and any additional information received, and such 
communications may lead to a final determination that differs from the 
    If you wish to provide comments and/or information, you may submit 
your comments and materials concerning the proposal by any one of 
several methods (see ADDRESSES). Comments submitted electronically 
should be in the body of the e-mail message itself or attached as a 
text file (ASCII file format), and should not use special characters or 
any form of encryption. Please also include ``Attn: Cactus Ferruginous 
Pygmy Owl Delisting,'' your full name, and your return address in the 
body of your e-mail message. If you do not receive a confirmation from 
the system that we have received your e-mail message, contact us 
directly by calling our Arizona Ecological Services Field Office (see 
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the Arizona 
Ecological Services Field Office (see ADDRESSES).
    Persons needing reasonable accommodations in order to attend and 
participate in the public hearing should contact Steve Spangle, Field 
Supervisor, Arizona Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT) as soon as possible. In order to allow sufficient 
time to process requests, please call no later than one week before the 
hearing. Information regarding the proposal is available in alternative 
formats upon request.

    Authority: The authority for this action is the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.).

    Dated: August 30, 2005.
Kevin R. Adams,
Acting Director, U.S. Fish and Wildlife Service.
(Endangered and Threatened Wildlife and Plants; Proposed Rule to 
Remove the Arizona Distinct Population Segment of the Cactus 
Ferruginous Pygmy-owl From the Federal List of Endangered and 
Threatened Wildlife; Proposal to Withdraw the Proposed Rule to 
Designate Critical Habitat and to Remove Designated Critical 

[FR Doc. 05-17754 Filed 9-1-05; 5:07 pm]