[Federal Register Volume 62, Number 140 (Tuesday, July 22, 1997)]
[Rules and Regulations]
[Pages 39147-39157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19208]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC61


Endangered and Threatened Wildlife and Plants; Final Rule To 
Extend Endangered Status for the Jaguar in the United States

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) extends endangered 
status to the jaguar (Panthera onca) throughout its range under the 
authority of the Endangered Species Act of 1973, as amended. With this 
rule, the jaguar is now also listed as endangered in the United States, 
as well as in Mexico and Central and South America. In the United 
States, a primary threat to this species is illegal shooting. A minimum 
of 64 jaguars were killed in Arizona since 1900. The most recent 
individual killed in Arizona was in 1986.
    Loss and modification of the jaguar's habitat are likely to have 
contributed to its decline. While only a few individuals are known to 
survive in the United States (Arizona and New Mexico), the presence of 
the species in the United States is believed to be dependent on the 
status of the jaguar in northern Mexico. Documented observations are as 
recent as 1996. Critical habitat was found to not be prudent and 
therefore is not being designated.

DATES: Effective August 21, 1997.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the Fish and Wildlife 
Service, Arizona Ecological Services Field Office, 2321 West Royal Palm 
Road, Suite 103, Phoenix, Arizona 85021.

FOR FURTHER INFORMATION CONTACT: Sam Spiller, Field Supervisor, Arizona 
Ecological Services Field Office (see ADDRESSES section) (telephone 
602/640-2720; facsimile 602/640-2730).

SUPPLEMENTARY INFORMATION:

Background

    The jaguar (Panthera onca) is the largest species of cat native to 
the Western Hemisphere. Jaguars are muscular cats with relatively 
short, massive limbs and a deep-chested body. They are cinnamon-buff in 
color with many black spots; melanistic forms are also known, primarily 
from the southern part of the range. Its range in North America 
includes Mexico and portions of the southwestern United States (Hall 
1981). A number of jaguar records are known from Arizona, New Mexico, 
and Texas. Additional reports exist for California and Louisiana. 
Records of the jaguar in Arizona and New Mexico have been attributed to 
the subspecies Panthera onca arizonensis. The type specimen of this 
subspecies was collected in Navajo County, Arizona, in 1924 (Goldman 
1932). Nelson and Goldman (1933) described the distribution of this 
subspecies as the mountainous parts of eastern Arizona north to the 
Grand Canyon, the southern half of western New Mexico, northeastern 
Sonora, and, formerly, southeastern California. The records for Texas 
have been attributed to Panthera onca veraecrucis. Nelson and Goldman 
(1933) described the distribution of this subspecies as the Gulf slope 
of eastern and southeastern Mexico from the coast region of Tabasco, 
north through Vera Cruz and Tamaulipas, to central Texas.
    Swank and Teer (1989) indicate that the historical range of the 
jaguar includes portions of the States of Arizona, New Mexico, Texas 
and Louisiana. These authors consider the current range to occur from 
central Mexico through Central America and into South America as far as 
northern Argentina. They state that the United States no longer 
contains established breeding populations, which probably disappeared 
in the 1960's. They also maintain that the jaguar prefers a warm, 
tropical climate, is usually associated with water, and is only rarely 
found in extensive arid areas.
    Brown (1983) presented an analysis suggesting there was a resident 
breeding population of jaguars in the southwestern United States at 
least into the 20th century. The Service (U.S. Fish and Wildlife 
Service 1990) recognizes that the jaguar continues to occur in the 
American Southwest, at least as an occasional wanderer from Mexico.
    The life history of the jaguar has been summarized by Nowak (1991) 
and Seymour (1989), among others. Jaguars breed year-round range-wide, 
but at the southern and northern ends of their range there is evidence 
for a spring breeding season. Gestation is about 100 days; litters 
range from one to four cubs (usually two). Cubs remain with their 
mother for nearly 2 years. Females begin sexual activity at 3 years of 
age, males at 4. Studies have documented few wild jaguars more than 11 
years old.
    The list of prey taken by jaguars range-wide includes more than 85 
species (Seymour 1989), such as peccaries (javelina), capybaras, pacas, 
armadillos, caimans, turtles, and various birds and fish. Javelina and 
deer are presumably mainstays in the diet of jaguars in the United 
States and Mexico borderlands.
    Jaguars are known from a variety of habitats (Nowak 1991, Seymour 
1989). They show a high affinity to lowland wet habitats, typically 
swampy savannas or tropical rain forests. However, they also occur, or 
once did, in upland habitats in warmer regions of North and South 
America.
    Within the United States, jaguars have been recorded most commonly 
from Arizona, but there are also records from California, New Mexico, 
and Texas, and reports from Louisiana. Currently there is no known 
resident population of jaguars in the United States, though they still 
occur in northern Mexico.

Arizona

    Goldman (1932) believed the jaguar was a regular, but not abundant, 
resident in southeastern Arizona. Hoffmeister (1986) considered the 
jaguar an uncommon resident species in Arizona. He concluded that the 
reports of jaguars between 1885 and 1965 indicated that a small but 
resident population once occurred in southeastern Arizona. Brown (1983) 
suggested that the jaguar in Arizona ranged widely throughout a variety 
of habitats from Sonoran desert scrub upward through subalpine conifer 
forest. Most of the records were from Madrean evergreen-woodland, 
shrub-invaded semidesert grassland, and along rivers (Girmandonk 1994).
    The most recent records of a jaguar in the United States are from 
the New Mexico/Arizona border area and in southcentral Arizona, both in 
1996, and confirmed through photographs. In 1971, a jaguar was taken 
east of Nogales, Arizona, and, in 1986, one was taken from the Dos 
Cabezas Mountains in Arizona. The latter individual reportedly had been 
in the area for about a year before it was killed (Ron Nowak, Fish and 
Wildlife Service, pers. comm., 1992).
    The Arizona Game and Fish Department (1988) cited two recent 
reports of jaguars in Arizona. The individuals were considered to be 
transients from Mexico. One of the reports was from 1987 from an 
undisclosed location. The other report was from 1988, when tracks were 
observed for several days prior to the

[[Page 39148]]

treeing of a jaguar by hounds in the Altar Valley, Pima County.
    An unconfirmed report of a jaguar at the Coronado National Memorial 
was made in 1991 (Ed Lopez, Coronado National Memorial, pers. comm., 
1992). In 1993, an unconfirmed sighting of a jaguar was reported for 
Buenos Aires National Wildlife Refuge (William Kuvlesky, Fish and 
Wildlife Service, in litt., 1993). The following are historical 
accounts of jaguar occurrence:
    California. Merriam (1919) summarized several accounts of jaguars, 
from various locations in California, which were obtained from 
documents published between 1814 and 1860. Strong (1926) provided 
evidence the Cahuilla Indians of the Coachella Valley and San Jacinto 
and Santa Rosa Mountains of southern California were familiar with the 
jaguar. Nowak (1975) mentioned reports of jaguars in the Tehachapi 
Mountains from 1855, and the last known individual from California 
which was killed near Palm Springs in 1860 (Strong 1926). Nowak 
speculated the animal may have been a breeding individual.
    Louisiana. Nowak (1973) speculated on the occurrence of jaguars 
east of Texas. Several early accounts mentioned jaguars and tigers. He 
cited Baird (1859) who believed that specimens had been taken from 
Louisiana. Nowak also discussed the killing of what was probably a 
jaguar near New River, Ascension Parish, Louisiana in 1886. Lowery 
(1974) mentioned this killing and included the jaguar in the fauna of 
Louisiana on a provisional basis.
    New Mexico. Barber (1902) speculated that jaguars made their way 
into the Mogollon Mountains of New Mexico by ascending the Gila River. 
Bailey (1931) suggested that jaguars seemed to be native in southern 
New Mexico but were regarded as wanderers from across the United 
States-Mexico border. He listed nine reports of jaguars in New Mexico 
from 1855 to 1905. Brown (1983) stated that the last record from New 
Mexico was from 1905. Nowak (1975) mentioned reports of jaguars along 
the Rio Grande from as late as 1922. Halloran (1946) reported that dogs 
``jumped'' a jaguar in the San Andres Mountains in 1937. Findley et al. 
(1975) stated that jaguars once occurred as far north as northern New 
Mexico.
    Texas. Bailey (1905) stated that the jaguar was once reported as 
common in southern and eastern Texas but had become extremely rare. 
Nowak (1975) believed that an established population once occurred in 
the dense thickets along the lower Nueces River and northeast to the 
Guadalupe River. He suggested that jaguars probably continued to wander 
from Mexico into the brush country of the southernmost part of the 
State. However, brush clearing has possibly reduced chances for 
reestablishment of the species in Texas.
    Mexico. Leopold (1959) believed the distribution of the jaguar in 
Mexico included the tropical forests of southeastern Mexico, the 
coastal plains to the mouth of the Rio Grande on the Gulf of Mexico 
side, and the Sonoran foothills of the Sierra Madre Occidental on the 
Pacific side. The highest densities of jaguars were found along heavily 
forested flatlands and foothills of southern Sinaloa, the swamps of 
coastal Nayarit, the remaining uncut forests along the Gulf coast as 
far east as central Campeche, and the great rain forests of northern 
Chiapas. He indicated that occasional wandering individuals were found 
far from these areas and that some had followed tropical gorges far 
into the mountains. He believed that jaguars had traveled up the 
Brazos, Pecos, Rio Grande, Gila, and Colorado Rivers on their northern 
movements. He mentioned a 1955 record of a jaguar near the southern tip 
of the San Pedro Martir range, Baja California. Leopold asserted that 
this individual was 500 miles from regularly occupied jaguar habitat.
    Swank and Teer (1989) described the distribution of the jaguar in 
North America as a broad belt from central Mexico to Central America. 
They found that the most northerly established populations, as reported 
by Mexican officials, were in southern Sinaloa and southern Tamaulipas.
    Brown (1991) did not believe the jaguar was extirpated from 
northern Mexico. Although jaguars were considered relatively common in 
Sonora in the 1930's and 1940's, he cited a population about 800 miles 
south of the United States-Mexico border as the most northern 
officially reported. However, Brown suggested that there may be more 
jaguars in Sonora than are officially reported. He mentioned reports of 
two jaguars which were killed in central Sonora around 1970. He also 
discussed assertions by the local Indians that both male and female 
jaguars still occurred in the Sierra Bacatete about 200 miles south of 
Arizona. Brown speculated that if a reproducing population of jaguars 
is still present in these mountains, it may be the source of 
individuals which travel northward through the Sierra Libre and Sierra 
Madera until they reach Arizona. Nowak (pers. comm., 1992) reiterated 
that as late as 1987, the species was still considered common in the 
Sierra Bacatete near Guaymas, Sonora.
    Brown (1989) reported that biologists from Mexico have stated that 
at least two jaguars have been killed in Chihuahua. In 1987, Nowak 
(pers. comm., 1992) claimed that jaguars were still regularly present 
along the Soto la Marina River of central Tamaulipas, which is about 
150 miles from the southern tip of Texas. He also hypothesized that 
jaguars may be entering Arizona from Mexico due to habitat destruction 
in Sonora. Large stretches of natural forest were cleared in central 
Tamaulipas. In Arizona, by contrast, jaguar prey populations have 
increased, and large tracts of brush and canyon woodland are still 
available to provide cover for jaguars.

Previous Federal Actions

    Prior to this final rule, the jaguar was listed as endangered from 
the United States and Mexico border southward to include Mexico and 
Central and South America (37 FR 6476, March 30, 1972; 50 CFR 17.11, 
August 20, 1994). The species was originally listed as endangered in 
accordance with the Endangered Species Conservation Act of 1969 (ESCA). 
Pursuant to the ESCA, two separate lists of endangered wildlife were 
maintained, one for foreign species and one for species native to the 
United States. The jaguar appeared only on the List of Endangered 
Foreign Wildlife. In 1973, the Endangered Species Act (Act) superseded 
the ESCA. The foreign and native lists were replaced by a single ``List 
of Endangered and Threatened Wildlife,'' which was first published in 
the Federal Register on September 26, 1975 (40 FR 44412).
    On July 25, 1979, the Service published a notice (44 FR 43705) 
stating that, through an oversight in the listing of the jaguar and six 
other endangered species, the United States populations of these 
species were not protected by the Act. The notice asserted that it was 
always the intent of the Service that all populations of the seven 
species deserved to be listed as endangered, whether they occurred in 
the United States or in foreign countries. Therefore, the notice stated 
that the Service intended to take action as quickly as possible to 
propose the United States populations of these species for listing.
    On July 25, 1980, the Service published a proposed rule (45 FR 
49844) to list the jaguar and four of the other species referred to 
above in the United States. The proposal for listing the jaguar and 
three other species was withdrawn on September 17, 1982 (47 FR 41145). 
The notice issued by the Service stated that the Act mandated

[[Page 39149]]

withdrawal of proposed rules to list species which have not been 
finalized within 2 years of the proposal.
    On August 3, 1992, the Service received a petition from the 
instructor and students of the American Southwest Sierra Institute and 
Life Net to list the jaguar as endangered in the United States. The 
petition was dated July 26, 1992. On April 13, 1993 (58 FR 19216), the 
Service published a finding that the petition presented substantial 
information indicating that listing may be warranted, and requested 
public comments and biological data on the status of the jaguar. On 
July 13, 1994 (59 FR 35674), the Service published a proposed rule to 
extend endangered status to the jaguar throughout its range.
    On September 8, 1994, the Service received a petition from the 
Trans Texas Heritage Association to list the jaguar as extinct in the 
United States. The Service responded to the petitioner on December 5, 
1994, that the request was not a petitionable action.
    On April 10, 1995, Congress enacted a moratorium prohibiting work 
on listing actions (Public Law 104-6) and eliminated funding for the 
Service to conduct final listing activities. The moratorium was lifted 
on April 26, 1996, by means of a Presidential waiver, at which time 
limited funding for listing actions was made available through the 
Omnibus Budget Reconciliation Act of 1996 (Public Law No. 104-134, 100 
Stat. 1321, 1996). The Service published guidance for restarting the 
listing program on May 16, 1996 (61 FR 24722). The listing process for 
the jaguar was resumed in September 1996, when the Southwest Center for 
Biological Diversity filed a law suit and motion for summary judgment 
for the Secretary to finalize the listing for the jaguar and four other 
species.
    On January 15, 1997, the Arizona Game and Fish Department and New 
Mexico Department of Game and Fish requested that the Service reopen 
the jaguar public comment period for 70 days so that they could 
finalize and submit an interstate/intergovernmental ``Conservation 
Assessment and Strategy for the Jaguar in Arizona and New Mexico'' and 
``Memorandum of Agreement for the Conservation of the Arizona Jaguar.'' 
These documents, collectively referred to as the Conservation Agreement 
(CA), reflect the commitments of the agencies to expedite the 
development and implementation of conservation measures needed for the 
Arizona jaguar in the United States.
    The Service considered the CA as new information relevant to the 
listing determination. The comment period was reopened for a total of 
15 days, from January 31 through February 14, 1997 (62 FR 4718). The 
completion date for the final listing determination was reassigned to 
April 1, 1997. On March 14, 1997, the U.S. District Court for the 
District including Arizona ordered the Service to list the jaguar as 
endangered no later than 120 days from the date of the order. On July 
3, 1997, the Court clarified that order, noting that the 120-day 
timeframe was provided for the Service to make a decision as to whether 
or not to extend endangered status for the jaguar in the United States.

Summary of Comments and Recommendations

    In the July 13, 1994, proposed rule (59 FR 35674) and associated 
notifications, all interested parties were requested to submit factual 
reports or information that might bear on whether or not the jaguar 
should be listed. The comment period originally closed on September 12, 
1994, but was reopened from November 15 to December 14, 1994 (59 FR 
53627; October 25, 1994), to allow submission of additional comments 
and public hearings. Appropriate State and Federal agencies, county 
governments, scientific organizations, and other interested parties 
were contacted and requested to comment. Newspaper notices inviting 
public comment were published in Arizona in the Arizona Republic, 
Phoenix Gazette, Arizona Daily Star, Tucson Citizen, and Green Valley 
News/Sun; in New Mexico in the Albuquerque Journal, Albuquerque 
Tribune, Las Cruces Sun-News, Santa Fe New Mexican, Alamogordo Daily 
News, Defensor Chieftain, and Silver City Daily Press and Independent; 
and in Texas in the Corpus Christi Caller-Times and The McAllen 
Monitor. The inclusive dates of publication were July 29 to August 3 
for the initial comment period. The inclusive dates of publication for 
the comment period extension and public hearings were November 11 to 
November 15 and did not include the Green Valley News but did include 
the El Paso Times/Herald Post.
    Public hearings were requested by the Cochise County (Arizona) 
Planning Department, the Board of Supervisors of Apache County 
(Arizona), the Eastern Arizona Counties Organization, the County of 
Otero (New Mexico), and the Texas Wildlife Association. The Service 
conducted three public hearings. Interested parties were contacted and 
notified of the hearings. A notice of the hearing dates and locations 
was published in the Federal Register on October 25, 1994 (59 FR 
53627). Approximately 60 people attended the hearings. About 15 people 
attended the hearing in Safford, Arizona, 10 in El Paso, Texas, and 35 
in Weslaco, Texas. Transcripts of these hearings are available for 
inspection (see ADDRESSES section).
    Upon resumption of the listing process following the listing 
moratorium, a third public comment period was opened, January 31, 1997, 
through February 14, 1997. Notice of this reopening of the comment 
period was published between January 31, 1997 and February 8, 1997 (62 
FR 4718). Newspaper notices inviting public comment were published in 
Arizona in the Green Valley News, Arizona Daily Star (Tucson), Tucson 
Citizen, and Arizona Republic (Phoenix); in Texas in the Corpus Christi 
Caller Times, Las Cruces Sun-News, The Monitor (McAllen), and El Paso 
Times/Herald; and in New Mexico in the Albuquerque Journal, Albuquerque 
Tribune, Silver City Daily Press, Defensor Chieftain (Socorro), 
Alamogordo Daily News, and Santa Fe New Mexican. No additional formal 
public meetings were held during this period.
    A total of 266 written comments were received during all open 
comment periods. The listing proposal was supported by 185; 43 opposed 
the proposed listing; 31 supported the CA in lieu of listing, and 7 
either commented on information in the proposed rule but expressed 
neither support nor opposition, provided additional information only, 
or were non-substantive or irrelevant to the proposed listing. In 
addition, a ``petition'' to place the jaguar on the endangered species 
list included 115 signatures.
    Oral or written comments were received from 21 parties at the 
hearings. Four supported listing, 15 opposed listing, and 2 expressed 
neither support nor opposition, provided additional information only, 
or provided comments that were nonsubstantive or irrelevant to listing.
    In addition to the public comments, the Service sought out peer 
review from three independent scientists. Two of the three peer 
reviewers responded. A discussion of their comments follow the 
discussion of public comments and Service responses below.
    Written comments and oral statements presented at the public 
hearings and received during the comment periods are incorporated into 
this rule as appropriate and/or are addressed in the following 
discussion of issues and responses. Comments of a similar nature or 
point are grouped into a number of general issues. These issues

[[Page 39150]]

and the Service's response to each are discussed below.
    Issue 1: The jaguar is not native to the United States. The 
assumption by the Service that the historical range includes the United 
States is not borne out by the historical record. The United States was 
merely peripheral to the historic range. The species was never more 
than wandering individuals that occasionally crossed the border into 
the United States. The native jaguar is extirpated from the United 
States. Only the State of Arizona has had alleged reports of jaguars. 
No breeding population of the jaguar exists in the United States. The 
likelihood of establishing a breeding population would be impossible 
because of previous habitat modification and distances of breeding 
populations from the United States. Suitable habitat, even for random 
wanderings, no longer exists. That is why visits were rare in the 
1900's and why the visits resulted in the demise of the stray. It is 
incumbent upon the Service to provide evidence that the jaguar was a 
breeding species in the United States.
    Service response: As discussed in the ``Summary of Factors 
Affecting the Species,'' the Service believes that the jaguar is native 
to the United States. The evidence strongly indicates that the 
historical range of the jaguar included portions of the southwestern 
United States. The jaguar is not extirpated from the United States as 
indicated by continuing reports and documentation of individuals in 
Arizona. The most recent observation was made in late 1996 from Arizona 
and New Mexico.
    The issue of whether a breeding population is wholly supported 
within the United States is not relevant. The fact that individuals 
occur in the United States warrants their consideration for listing, 
evaluation of relevant threats, and development of appropriate 
conservation considerations.
    Issue 2: The Service should list the jaguar as extinct in the 
United States and herewith is a petition for such a finding. Another 
commenter stated the actual scientific evidence that either subspecies 
of jaguar still exists is lacking. Another commenter stated there 
appears to be no evidence of subspecies identification of jaguars for 
California, Louisiana, New Mexico, or Mexico.
    Service response: As discussed in the section regarding previous 
Federal action, the Service responded to the petition to list the 
jaguar as extinct in the United States in a letter dated December 5, 
1994 (John Rogers, Fish and Wildlife Service, in litt., 1995). In that 
letter, the Service stated that it does not add species to the list of 
endangered and threatened wildlife and plants as extinct, and 
therefore, the Service believed that the request was not a petitionable 
action.
    As discussed above, there are two subspecies that are known from, 
and may occur in, the United States. The reports and records of jaguars 
in Arizona, California, and New Mexico are attributable to Panthera 
onca arizonensis. The type locality for this subspecies is in Navajo 
County, Arizona. The reports and records of jaguars in Louisiana and 
Texas are attributable to P. o. veraecrucis. Although the subspecies 
designation of the jaguar is not relevant to the listing proposal, the 
Service has confirmed that P. o. arizonensis is in Arizona; the Service 
believes that P. o. veraecrucis may be extant in Texas.
    Issue 3: There are no scientifically valid records to support the 
idea that jaguars existed in California in recent centuries. No post-
Pleistocene remains have been collected in California, nor in the 
Colorado River corridor from northern Arizona to the Gulf of 
California. None of the purported sightings in those areas were made by 
biologists or reputable naturalists. Early 19th century references in 
central California were based on hearsay or misidentification. The 
purported sightings in southern California are not reliable. It is 
conceivable that individuals wandered into California from Arizona or 
Mexico historically, given their long-range dispersal ability. However, 
such events would have been rare.
    Service response: Available information indicates that California 
was part of the historical range of the jaguar, but no conclusive data 
exist. The California Department of Fish and Game (R. Jurek, pers. 
comm. 1996) does not accept these records as valid. Regardless, this 
rule extends endangered status to the jaguar in the United States 
throughout its range. Thus, whether or not California is part of the 
historical range, jaguars that may occur there are protected by the 
Act.
    Issue 4: A commenter stated that most of the accounts in the 
proposal are anecdotal. Another stated there were discrepancies in the 
number of jaguars taken or killed in Arizona and that it is incumbent 
upon the Service to provide documentation for the information presented 
in the proposed rule.
    Service response: The Service has carefully evaluated the 
information available regarding the jaguar for accuracy and relevance, 
whether anecdotal or not. The Service has addressed any discrepancies 
it has perceived and made changes where appropriate in this final rule. 
Many accounts of jaguar occurrence are from the historical literature 
and field accounts. Reconciling historical information is often 
complex, so the Service has tried to use the best information 
available, relying primarily on those aspects of the data which are 
best substantiated. Finally, this rule includes updated information 
that definitively documents jaguar occurrences as recently as 1996.
    Issue 5: One commenter stated that listing of the jaguar will lead 
to efforts to reintroduce the species. Another commenter stated that 
until the encroachment of people into these predatory animals' habitat 
can be stopped, it is not ethical to reintroduce a listed species. 
Furthermore, there are no areas big enough for reintroduction. 
Alternatively, another commenter stated the jaguar should be 
reintroduced in Texas. Places to start should include the Rio Grande 
River, perhaps in the Big Bend area. The jaguar is a top predator in 
the food chain and would provide biological control of various 
ungulates and rodents. The Service should begin a public education 
program to protect the jaguar and break ground on reintroduction. 
Another commenter was particularly interested in the prospect of 
reintroduction of the jaguar to California and other States. Another 
commenter stated that proper planning is needed for reintroduction.
    Service response: Depending on the species involved and the 
situation it faces, reintroduction may or may not be a viable means to 
reach recovery. The Service has no plans for reintroduction of the 
jaguar anywhere in the United States. If reintroduction is contemplated 
at any time in the future it would be the subject of a separate 
rulemaking.
    Issue 6: None of the jaguars reported taken in recent times were 
taken as a result of legal, licensed, sport hunting. Thus, the jaguars 
reported taken were poached and not hunted.
    Service response: The accuracy of this statement would depend on 
the wildlife laws and regulations that were in effect at the time all 
of the known jaguars were taken. However, the Service acknowledges that 
the wording in the proposed rule could have been misconstrued to mean 
jaguars are victims of legal hunting. The appropriate corrections have 
been made in the text of the final rule.
    Issue 7: Property rights may be abridged by this action in the 
States considered by the Service to be part of the historical range. 
Activities of the Service are adversely affecting people throughout the 
State of Texas, with

[[Page 39151]]

little, if any, benefit to the species. The proposed rule is seen as 
another attempt to further restrict legal hunting and predator control 
activities. Frivolous listings violate citizens' 9th and 10th amendment 
rights. Another commenter stated listing would require protection of 
the jaguar, thereby violating livestock owner's 5th and 14th amendments 
and civil rights. Will landowners not be subject to aerial inspection? 
Will the Service not be subject to lawsuits from the Humane Society? 
Possible acquisition of private property to create habitat for 
nonexisting or reintroduced jaguars would cause great loss to livestock 
and all other wild animals in south Texas. Listing of other species 
(Mexican spotted owl) has resulted in affecting other industries 
(logging) and actually resulted in further endangering the species. If 
the jaguar is listed, Federal agencies must comply with section 7 of 
the Act. Activities that may be affected are clearing of habitat, 
destruction of riparian areas, fragmentation or blocking of corridors 
that jaguars may use to cross from Mexico into the United States, and 
any trapping or animal control activities designed to target the jaguar 
or other large predators. This is an outrageous blatant attack on the 
agricultural economies of the States involved. Trapping and animal 
damage control activities designed to target large predators should not 
be victims of the listing of the jaguar. These programs have a 
legitimate function and should not be destroyed on behalf of a phantom 
species.
    Service response: Under the Act, listing of species must be 
considered only on the basis of the best biological information 
available. Listing decisions cannot be made on the basis of economic 
factors or possible problems or conflicts that may arise from 
compliance with section 7 and 9 of the Act. Once listed, however, the 
Service strives to recover threatened and endangered species in ways 
that minimize impacts on industry or private citizens. Further 
discussion of activities that may or may not violate the Act are 
discussed under the Available Conservation Measures section.
    Issue 8: No scientific information has been provided to support the 
argument that the jaguar requires protection in the United States. The 
proposed rule fails to demonstrate (under the listing factors) that the 
species is endangered in the United States.
    Service response: The Service believes that the information 
regarding the threats to the jaguar in the United States discussed 
under the five factors indicates that the species merits listing.
    Issue 9: Jaguars that occur in the United States do not possess the 
genetics needed to enhance the breeding population.
    Service response: The Service does not possess relevant information 
regarding the genetic status of the jaguar in the United States. 
However, the genetic contribution of all individuals of a declining 
species may be of great importance. The listing does not depend on the 
value of the genetic importance of the individuals. However, if, for 
example, the jaguar was known to suffer from genetic diseases, that 
could be considered as a factor to list the species.
    Issue 10: It would be a mistake to select boundaries of protected 
areas based on the conditions that existed 50-100 years ago. What is 
the basis for stating that clearing of habitat may affect the jaguar? 
The majority of records were from the turn of the century when there 
was very little of the current mesquite infestation. It is incumbent 
upon the Service to provide evidence that riparian areas are being 
destroyed anywhere in the Southwest. If jaguar habitat stretches from 
2,000 to 9,000 feet of elevation, a vast swath of both Arizona and New 
Mexico would be subject to review.
    Service response: Under this listing action, the Service is not 
setting any boundaries for protected areas. As a result of this action, 
the species will be protected under the Act throughout its entire 
range.
    Clearing of habitat could affect jaguars either directly or through 
effects on its prey. Although listing of the jaguar does not hinge on 
loss of riparian areas that may be used by jaguars, such loss has 
occurred and is continuing in the Southwest. As outlined in other 
sections of this rule, the available scientific literature indicates 
that jaguars do rely on riparian areas for habitat and movement 
corridors. However, very little is actually known about the habitat 
requirements and movement corridors for the jaguar in the United States 
at the northern periphery of its range. The Service agrees that large 
areas may have to be considered when evaluating effects of activities 
on the jaguar. However, very localized activities may actually be 
judged to have less of an effect on jaguars than if jaguars occupied 
very narrow habitat areas. As discussed in the Available Conservation 
Measures section, the Service anticipates few projects will be reviewed 
under section 7 of the Act because jaguars can be expected to occur in 
few areas.
    Issue 11: In Texas, the jaguar is already protected by the State's 
endangered species law. The State can seek civil restitution for 
wildlife losses due to intentional harm or negligence, with the current 
replacement cost for a jaguar being over $7,000. It is highly suspect 
whether Federal protection would be additive, given the number of Texas 
game wardens (more than 450) and the handful of Federal agents. The 
Service refuses to recognize any State regulation as adequate, 
preferring to increase the burden of Federal regulations on all States 
involved. Protection of the species from the threat of shooting does 
not require Federal listing; it can be accomplished through hunting 
regulations and other means. New Service policies provide for increased 
emphasis on working with State agencies. Texas Wildlife and Parks 
Department (TWPD) will undertake to develop an interstate cooperative 
effort similar to the one for the swift fox. If the Service accepts 
this strategy, it will have the full support and cooperation of TWPD. 
Another commenter suggested that instead of listing, the Service should 
work with the States to get their laws strengthened.
    Service response: As discussed under Factor D, the penalties for 
violation of the Act are much stronger than any current State 
provisions. The Service believes that such protection provided by the 
Act is appropriate for the jaguar. The Service understands that despite 
an offered $4,000 reward, the Arizona Game and Fish Department 
encountered difficulties in obtaining information relevant to a 
suspected killing of a jaguar in Arizona. In addition to the take 
prohibition, listing the species under the Act will provide other 
protection as well (See Available Conservation Measures). In addition, 
listing provides an appropriate range-wide perspective when considering 
the species' recovery needs. In absence of other regulatory mechanisms 
that will adequately protect the jaguar, the Service believes that 
listing is warranted.
    Issue 12: The Service is precluded from including the jaguar in the 
list of United States endangered species because the proposal to list 
was not acted upon in a timely manner by the Service pursuant to the 
proposal to list in 1980 (45 FR 49844). The Service failed to complete 
the listing process in 1982, thereby requiring withdrawal of the 
proposal. The Service should be precluded from the current proposed 
action based on the Service's earlier oversight and omissions.
    Service response: As discussed under Previous Federal Actions, the 
Service did propose to list the jaguar in the United States in 1980. 
The proposal was withdrawn in 1982 in accordance with the regulations 
under the Act in place at that time. That proposal and

[[Page 39152]]

withdrawal are not related to the present proposal and do not preclude 
the Service from proposing or finalizing the current action.
    Issue 13: There is no benefit to the species from the proposed 
rule. It is apparent that the intent of the rule is to prohibit certain 
practices such as trapping and animal damage control within the States 
involved and to extend Federal control.
    Service response: The fact that jaguars will be afforded the 
protections of the Act in the United States is clearly a benefit to the 
species. Prohibition of practices that affect the jaguar is not the 
intent of this listing. However, some activities could be affected by 
the listing, as discussed under Available Conservation Measures.
    Issue 14: Commenters suggested that livestock losses to jaguars 
will occur. Jaguars will jeopardize the recreational industry in the 
Gila Wilderness. Balance of wildlife and the human factor would be 
completely destroyed. Several commenters expressed uneasiness with the 
idea of facing or being stalked by a jaguar. Listing would pose a 
threat to the general public safety, which Arizona counties are charged 
to protect under Arizona Revised Statutes, Section 11-806(b).
    Service response: While not considered as listing factors, the 
Service does not believe that listing the jaguar will result in losses 
to the livestock or recreational industries or pose a threat to general 
public safety.
    Issue 15: Designation of critical habitat is needed. Recommended 
areas include the Animas Range in the bootheel of New Mexico and the 
San Pedro River Valley, Huachuca Mountains, and Santa Cruz Basin in 
Arizona. Loss of habitat is a primary threat; habitat loss will prevent 
jaguar recovery and increase its vulnerability to poaching. Because 
there is no recovery plan, it is essential that critical habitat be 
designated at the time of listing. The jaguar requires whole landscapes 
for survival and recovery; additional knowledge about specific natural 
community preferences in the Southwest are not a prerequisite for 
determining critical habitat. Designation of large blocks of critical 
habitat would not aid poachers and should help alert law enforcement to 
the need for antipoaching surveillance. Why not designate all riparian 
ways in the Southwest as critical habitat? Critical habitat will help 
the Service in controlling activities of Animal Damage Control.
    Service response: The July 13, 1994 (59 FR 35674), proposed rule 
did not include a proposal for designation of critical habitat because 
it was determined not to be prudent. The Service still believes this to 
be the case. The Service's reasons for a ``not prudent'' determination 
are discussed under the Critical Habitat section of this final rule.
    Issue 16: Federal listing would require a recovery plan and later 
designation of critical habitat. The Service has recognized that such a 
plan would require importing of jaguars into habitat that must be 
suitable for its foraging, which is not available in the border areas 
of the United States with Mexico. What guarantee is there that the 
Service will not designate critical habitat? What would preclude any 
organization from petitioning the Service to declare critical habitat 
for the jaguar?
    Service response: The jaguar was briefly addressed in a recovery 
plan for the listed cats of Texas and Arizona (U.S. Fish and Wildlife 
Service, 1990). Upon listing, it would probably be appropriate to 
develop a more extensive recovery plan for the species. The existing 
recovery plan for the listed cats does not recommend importing jaguars.
    The July 13, 1994 (59 FR 35674) proposed rule did not include a 
proposal for designation of critical habitat because it was determined 
not to be prudent. The Service has no information that critical habitat 
is prudent. Critical habitat is defined in section 3(5)(A) of the Act 
as the geographical area on which are found those physical or 
biological features essential to the conservation of the species. Areas 
on the periphery of a species range or areas that are only infrequently 
used by a species often do not exhibit the qualities that would 
constitute a critical habitat designation. To the extent that 
identification of habitats that are essential for the recovery of the 
species rangewide is necessary, the Service would identify these areas 
as part of the recovery planning process.
    Issue 17: Listing of the jaguar could have significant impacts on 
the success of the Service in the lower Rio Grande Valley, and 
particularly in the Lower Rio Grande Valley National Wildlife Refuge 
complex. Listing would frustrate rather than benefit efforts for 
species. While there may be merit in listing, the protection and 
restoration of habitat in south Texas may be thwarted. It is difficult 
to get funding to complete the Lower Rio Grande Valley Refuge. Although 
the species deserves every protection, listing at this time will be 
counter-productive. Another commenter stated the Act is a serious law 
intended for serious problems. The Act is not an animal rights act, and 
listing the jaguar would be an abuse of the Act.
    Service response: As stated previously, listing decisions are to be 
based on the best available scientific and commercial information and 
the five listing factors discussed in this rule (see Summary of Factors 
Affecting the Species section). The Service disagrees that listing 
would preclude management of the species in Texas, and agrees that the 
Act is a serious law and that its protections should be afforded to a 
species that has suffered extensive curtailment of its range and is 
still vulnerable to a variety of threats.
    Issue 18: The Convention on International Trade in Endangered 
Species of Wild Fauna and Flora (CITES) provides stiff penalties for 
illegal importation. This law should be effective against ``canned 
hunts.''
    Service response: CITES is an international treaty that regulates 
trade (import/export) in wildlife between countries. CITES does not, 
however, address activities with wildlife that occur within the United 
States. So although CITES regulates international trade in jaguars, it 
offers no protection to the jaguar from ``canned'' or baited hunts. 
(See Factor D for further information on CITES.) Certain State 
penalties do apply to the jaguar that may be enforced by the Federal 
government under the Lacey Act. In the case of transportation across 
State lines of an illegally obtained jaguar, the Lacey Act would apply.
    Issue 19: The Service has not analyzed, under section 7 of the Act, 
impacts to the ocelot, jaguarundi, Attwater's prairie chicken, and 
whooping crane that could result from the introduction of exotic 
jaguars from Mexico. How would the jaguar not impact prey sources of 
both ocelot and jaguarundi? What would keep the jaguar from preying on 
the previously mentioned species? How will exotic jaguars not introduce 
disease?
    Service response: Section 7 consultations are not conducted for 
rules proposing or listing species as threatened or endangered under 
the Act. Section 7 of the Act applies to those actions that may affect 
listed species. Listing a species would not be expected to have an 
adverse affect on any other listed species. If any future Federal 
actions associated with a listed species may affect another listed 
species, such as a recovery activity, then a section 7 consultation 
would be required for that action at the time it is proposed. (See 
Issue 5 for further information on reintroduction.)
    Issue 20: A commenter requested that an environmental impact 
statement

[[Page 39153]]

(EIS) be done before publication of a final rule and that the EIS 
consider site-specific areas, not the region as a whole. Another 
commenter stated that the Service needs to study how the listing may 
affect the social, economic, and human environment. The public 
involvement process should be designed to address concerns, to answer 
questions, and to exchange information. Legal, custom, and cultural 
concerns can be addressed only with adequate notice and time to 
prepare. Another commenter stated that public notification was not 
sufficient for the public hearings. Commenters requested that more 
hearings be held, especially in rural counties. Another commenter 
suggested a hearing be held in Dallas/Fort Worth or Austin based on the 
assumption that the wildlife of the United States belongs to all 
people, not just to those in the areas that are involved.
    Service response: As the proposed and final rules state (see 
National Environmental Policy Act section), the Service has determined 
that an environmental assessment, as defined under the authority of the 
National Environmental Policy Act of 1969, need not be prepared in 
connection with regulations adopted pursuant to section 4(a) of the 
Act. Additionally, the Act precludes addressing the social, economic, 
and human environment when deciding to list a species.
    The April 13, 1993 (58 FR 19216), notice announcing the 90-day 
finding on the petition to list the species requested public comments 
and biological data on the status of the jaguar from any and all 
interested or knowledgeable parties. On July 13, 1994, (59 FR 35674) 
the Service published a proposed rule to extend endangered status to 
the jaguar in the United States. Again, the Service sought biological 
data and comments from the public. In addition, as recounted in the 
Background section, three public hearings were conducted by the Service 
as another avenue to obtain relevant information. The Service believes 
that it has provided interested parties opportunity to present any 
relevant information.
    Issue 21: Listing of the jaguar is not necessary since the 
conservation intent of the Act has been addressed through the CA. The 
Arizona Game and Fish Department and New Mexico Department of Game and 
Fish have coordinated the development of an interstate/
intergovernmental ``Conservation Assessment and Strategy for the Jaguar 
in Arizona and New Mexico'' and ``Memorandum of Agreement for the 
Conservation of the Arizona Jaguar.'' These documents, collectively 
referred to as the Conservation Agreement (CA), reflect the commitments 
of the agencies to expedite the development and implementation of 
conservation measures needed for the Arizona jaguar in the United 
States in order to meet the conservation intent of the Act and preclude 
the need for listing. The primary feature of the CA is the designation 
of the Jaguar Conservation Team and coordination and implementation of 
conservation measures through the cooperation of State, Federal, 
Tribal, and other governmental agencies, and partnerships with private 
landowners and organizations.
    The CA addresses the fact that the conservation of the jaguar and 
its habitat in Arizona and New Mexico is linked to key Federal and 
private land ownership patterns, identifies both short and long-term 
objectives, and sets various time frames to complete species and 
habitat activities. The State wildlife agencies will reallocate funds 
and personnel to implement this CA, or will aggressively seek new funds 
for implementation. The CA addresses risks to the survival and recovery 
of the Arizona jaguar in the United States through a combination of 
measures. These measures include: (a) Gathering and disseminating 
information on status, biology (including habitat use), and management 
needs; (b) identifying habitat suitable for population maintenance or 
expansion in Arizona and New Mexico; (c) allowing for management 
flexibility; (d) creating strong private-public partnerships; and (e) 
developing stronger legal disincentives for unlawful take. The State 
wildlife agencies have committed to implementation of the CA regardless 
of the listing status of the species.
    Service Response: The Service acknowledges the conservation 
benefits of the CA and the lead role of the State wildlife agencies in 
the conservation and recovery of wildlife species within their 
respective States. Through implementation of the CA there should be 
many positive benefits to jaguar conservation. However, the efforts 
under the CA are based on voluntary participation and it will take time 
to realize these benefits to the level in which the jaguar is no longer 
in danger of extinction through all or a portion of its range. As long 
as the species' status meets the regulatory definition of endangered, 
the Service has the statutory responsibility to list the species based 
on biological considerations and analysis of threats. The CA developed 
to this point in time will serve as the template for those protections 
that will be necessary for the conservation and recovery of the species 
subsequent to its listing.
    Issue 22: Texas Parks and Wildlife Department evaluated the status 
of the jaguar in that State and determined that, due to habitat 
fragmentation, there was no longer any potential for the jaguar to 
exist in Texas. Therefore, Texas Parks and Wildlife stated there was 
neither the need to federally list nor to develop a CA for the jaguar 
in Texas.
    Service Response: Extirpation of a species from an area lends 
evidence to a determination that a species' conservation status has 
declined range wide and that listing is appropriate.
    Issue 23: The Act has not been reauthorized, therefore, the Act is 
no longer extant. Also, we live in a democracy. Do the majority of the 
people want the jaguar listed? Another commenter stated that there is 
no need for endangered species listings. They are a waste of time and 
money and are based on pseudo-science.
    Service response: Although Congress has not reauthorized the Act, 
it continues to appropriate funds for its implementation. The Service, 
by authority of the Secretary of the Interior, is still responsible for 
implementing the Act. According to the Act, listing decisions are based 
on the best scientific and commercial information available.

Summary of the Opinions of Independent Peer Reviewers

    Three independent reviewers were contacted by the Service during 
the comment period in order to obtain their comments, data, and 
opinions regarding the pertinent scientific or commercial data and 
assumptions relating to taxonomy, population status, and biological and 
ecological information on the jaguar. The reviewers were E. Lendell 
Cockrum (University of Arizona), David S. Maehr (Endangered Cats 
Recovery Team), and Michael E. Tewes (Caesar Kleberg Wildlife Research 
Institute, Texas A&M University). Responses were received from two of 
the three reviewers.
    One reviewer stated that because they are secretive, the status of 
the jaguar in the United States is based largely on speculation. While 
some of this speculation suggests some low level of reproduction may 
have occurred in parts of the Southwest, it is more likely that most of 
these animals represented dispersers or only sporadic breeders. Such a 
pattern is to be expected at the fringe of a species' range where 
habitat conditions, by definition, are sub-optimal relative to the 
center of its range. That does not mean such

[[Page 39154]]

individuals are unimportant. They occupy habitat that serves as a 
buffer to zones of regular reproduction, and they are potential 
colonizers of vacant range. Such areas are important to maintaining 
normal demographics and allowing for the possibility of range expansion 
as environmental conditions improve.
    Because knowledge of jaguar distribution and ecology involves much 
speculation, there is no way to ascertain key elements of its habitat. 
However, every effort should be made to describe the ecology of jaguars 
in northern Mexico in order to understand where some of the records 
originated and how individuals are finding their way to and from the 
United States. Corridors and other patches of forest cover may indeed 
be critical to the jaguar's continuance and possible range expansion in 
the United States. Work must begin on describing jaguar habitat 
requirements and dispersal characteristics through sign surveys and, 
eventually, telemetry studies of the breeding population closest to the 
United States. Enlisting the owners of significant tracts of private 
land supporting endangered cats will be essential to jaguar 
conservation if not all potential jaguar habitat is already on public 
land that can be managed for them. Involving property owners very early 
in the process will pay tremendous dividends down the road. Jaguar 
recovery has much to gain from ranch owners in the southwest.
    Another reviewer commented that wide-ranging, large carnivores such 
as the jaguar travel long distances within their home range and often 
use a wide variety of habitats. Simple occurrence of a jaguar in a 
particular habitat does not necessarily convey information about the 
quality of that particular habitat type. Because there are no 
ecological studies indicating habitat preferences of jaguars within the 
United States, an accurate description of important habitats would be 
almost impossible.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, the Service has determined that the jaguar should be 
classified as an endangered species in the United States. Procedures 
found at section 4(a)(1) of the Act and regulations implementing the 
listing provisions of the Act (50 CFR part 424) were followed. A 
species may be determined to be endangered or threatened due to one or 
more of the five factors described in section 4(a)(1). These factors 
and their application to the jaguar (Panthera onca) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. Clearing of habitat, destruction 
of riparian areas, and fragmentation or blocking of corridors may 
prevent jaguars from recolonizing previously inhabited areas. Although 
there is currently no known resident population of jaguars in the 
United States, wanderers from Mexico may cross the border and take up 
residency in available habitat. (See Issue 10 for further information.)
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. In Arizona, the jaguar's gradual decline was 
concurrent with predator control associated with the settlement of land 
and the development of the cattle industry (Brown 1983, U.S. Fish and 
Wildlife Service 1990). Lange (1960) summarized the jaguar records from 
Arizona known up to that time. Between 1885 and 1959, the reports 
consisted of 45 jaguars killed, 6 sighted, and 2 recorded by evidence 
such as tracks and/or droppings.
    Brown (1991) related that the accumulation of all known records 
indicated a minimum of 64 jaguars were killed in Arizona after 1900. 
When plotted at 10-year intervals, records of jaguars reported killed 
in Arizona and New Mexico between 1900 and 1980 demonstrated a 
``decline characteristic of an over-exploited resident population'' 
(Brown 1983). Brown (1983) argued that if the jaguars killed during 
this period originated in Mexico, the numbers of killings should not 
suggest a pattern but should rather be irregular and erratic.
    Bailey (1905) listed seven reports of jaguars killed in Texas 
between 1853 and 1903. Schmidly (1983) reported another jaguar shot in 
Mills County in 1904. Taylor (1947) mentioned a jaguar killed near 
Lyford, Willacy County, in 1912. Brown (1991) indicated jaguars were 
common in Texas until 1870. The last reports from Texas were of 
individuals killed in 1946 (San Benito, Cameron County) and 1948 
(Kleburg County). Nowak (1975) identified killing of jaguars for 
commercial sale of their furs as a factor in the extermination of a 
substantial resident population in central Texas during the late 19th 
century.
    Although the demand for jaguar pelts has diminished, it still 
exists along with the business of illegal hunting of jaguars. In 1992, 
Arizona Game and Fish Department personnel infiltrated a ring of 
wildlife profiteers. That operation resulted in the March 1993, seizure 
of three jaguar specimens, of which one was allegedly taken from the 
Dos Cabezas Mountains in Arizona in 1986. Two of the specimens had been 
covertly purchased from the suspects. During the investigation, several 
ties to Mexico jaguar hunting were discovered. Hounds bred and trained 
in the United States were sold to Mexican nationals for the purpose of 
hunting jaguars. Also, Mexican nationals prosecuted by the Service in 
1989 for illegally importing jaguar pelts into the United States were 
continuing the practice of providing jaguar hunts in Mexico (Terry B. 
Johnson, Arizona Game and Fish Department, in litt., 1993).
    C. Disease or predation. The Service is unaware of any known 
diseases or predators that threaten the jaguar at this time.
    D. The inadequacy of existing regulatory mechanisms.

State Regulations

    Jaguars are being considered for inclusion on the Arizona Game and 
Fish Department's list of ``Wildlife of Special Concern,'' and were 
included on its previous list of ``Threatened National Wildlife of 
Arizona.'' In general, violations of Arizona Game and Fish Laws 
(Arizona Game and Fish Department 1991) are class 2 misdemeanors. The 
Arizona Game and Fish Commission may, through criminal prosecution, 
seek to recover a maximum of $750 for each endangered species 
unlawfully taken, wounded, or killed. Special depredation permits may 
be issued for jaguars.
    Under the California Code of Regulations, it is prohibited to 
import, transport, or possess jaguars. According to California Fish and 
Game Code, Section 12011, such acts carry a maximum penalty of a 
$30,000 fine, 1 year in jail, or both.
    In Louisiana the jaguar receives no official protection from the 
State (Fred Kimmel, Louisiana Department of Wildlife and Fisheries, 
pers. comm., 1993).
    In New Mexico, the jaguar is considered a ``restricted species'' on 
the State's list of endangered species and subspecies. It is unlawful 
to take, possess, transport, export, process, sell, or offer for sale a 
jaguar in New Mexico. Violations are a misdemeanor and, upon 
conviction, a person shall be fined $1,000 and imprisoned from 30 days 
to 1 year.
    The jaguar is listed as threatened by the State of Texas. It is 
unlawful to take, possess, transport, export, process, sell or offer 
for sale, or ship jaguars in Texas. However, some of the above actions 
may be allowed for zoological gardens, and scientific, commercial, and 
propagation

[[Page 39155]]

purposes with the proper permits. A first violation of the regulations 
or a permit is a Texas Parks and Wildlife Code C misdemeanor which 
carries a fine of $25 to $500 (Capt. Harold Oates, Texas Parks and 
Wildlife, pers. comm., 1994).
    In summary, although some States provide limited protection to the 
jaguar, illegal taking continues to occur. None of the State penalties 
for illegal taking are as stringent as the $50,000 fine and/or 1 year 
in jail provided for endangered species under the Act. Thus, listing 
the species under the Act results in protective measures beyond those 
provided by the States.

Federal Protection

    Prior to this final rule, the jaguar was listed under the Act as an 
endangered species only from Mexico southward to include Central and 
South America. It was not listed in the United States. Jaguars which 
may have occurred in, or immigrated into, the United States were not 
protected by the Act.
    On July 1, 1975, the jaguar was included in Appendix I of CITES. 
CITES is a treaty established to prevent international trade that may 
be detrimental to the survival of plants and animals. Generally, both 
import and export permits are required from the importing and exporting 
countries before an Appendix I species may be shipped, and Appendix I 
species may not be exported for primarily commercial purposes. CITES 
permits may not be issued if the export will be detrimental to the 
survival of the species or if the specimens were not legally acquired. 
However, CITES does not prohibit the act of taking, possessing, or 
transporting a jaguar within the United States and its territories.
    The subspecies Panthera onca veraecrucis, with historical range in 
Texas and eastern Mexico, is designated by the United States government 
as a peripheral animal of concern in a provisional list for the Annex 
of the Convention on Nature Protection and Wildlife Preservation in the 
Western Hemisphere (Nowak, pers. comm., 1992). Panthera onca 
arizonensis is not so designated. This Convention, as implemented by 
Sections 2 and 8(A) of the Act, does not require the protection of 
species listed. Therefore, neither P. o. veraecrucis nor P. o. 
arizonensis are currently protected.
    E. Other natural or manmade factors affecting its continued 
existence. M-44 ejector devices with cyanide capsules are used by the 
Animal Plant and Health Inspection Service, Animal Damage Control and 
may be of threat to the jaguar (Terry B. Johnson, Arizona Game and Fish 
Department, in litt., 1993). Jaguars may also be victims of traps 
targeting other predators such as bears and cougars.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by this species in determining to make this rule 
final. Based on this evaluation, the preferred action is to list the 
jaguar (Panthera onca) as endangered throughout its range. The lack of 
protection under the Act for jaguars in the United States was due to an 
uncorrected technicality, rather than to any scientific information 
that jaguars do not require protection. A decision to take no action 
would exclude the jaguar in the United States from needed protection 
pursuant to the Act. A decision to extend only threatened status would 
not adequately express the drastic distributional decline of the 
species and the continued jeopardy of any individuals in the United 
States. Therefore, no action or listing as threatened would be contrary 
to the intent of the Act.

Critical Habitat

    Section 4(a)(3) of the Act, as amended, requires that, to the 
maximum extent prudent and determinable, the Secretary propose critical 
habitat at the time the species is proposed to be endangered or 
threatened. The Service finds that designation of critical habitat is 
not prudent for this species. The Service's regulations (50 CFR 
424.12(a)(1)) state that designation of critical habitat is not prudent 
when one or both of the following situations exist: (1) 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; or (2) such designation of critical habitat would not 
be beneficial to the species.
    As discussed in factor ``B'' above, a primary threat to the jaguar 
in the United States is from taking. Jaguars are still in demand for 
hunts and as trophies and pelts. A jaguar in Arizona was hunted and 
killed in 1986 approximately 1 year after it was known to be in the 
area and photographs confirmed another jaguar in New Mexico during 
1996. Publication of detailed critical habitat maps and descriptions in 
the Federal Register would likely make the species more vulnerable to 
activities prohibited under section 9 of the Act. In addition, since 
the primary threat to the species in the United States is direct taking 
rather than habitat destruction, designation of critical habitat would 
not lessen, and may increase, the primary threat to the jaguar. 
Appropriate parties and landowners have been notified of the location 
and importance of protecting this species' habitat. Identification of 
this species' habitat preferences will be addressed through the 
recovery process. Therefore, it is not prudent to designate critical 
habitat for the jaguar.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States and authorizes recovery plans for all 
listed species. The protection required of Federal agencies and the 
prohibitions against taking and harm are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer 
informally with the Service on any action that is likely to jeopardize 
the continued existence of a proposed species or result in destruction 
or adverse modification of proposed critical habitat. If a species is 
subsequently listed, section 7(a)(2) requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of such a species or to 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with the Service. Federal 
actions that may affect the jaguar include clearing of habitat known to 
have been occupied by jaguars and trapping or animal control activities 
targeting the jaguar or other large predators.
    The Act and its implementing regulations set forth a series of 
general trade prohibitions and exceptions that apply to all threatened 
wildlife. The prohibitions, codified at 50 CFR 17.21 and 17.31, in 
part, make it illegal for any person subject to the jurisdiction of the 
United States to take (includes harass,

[[Page 39156]]

harm, pursue, hunt, shoot, wound, kill, trap, or collect; or to attempt 
any of these), import or export, ship in interstate commerce in the 
course of commercial activity, or sell or offer for sale in interstate 
or foreign commerce any listed species. It is also illegal to possess, 
sell, deliver, carry, transport, or ship any such wildlife that has 
been taken illegally. Certain exceptions apply to agents of the Service 
and State conservation agencies.
    The prohibitions of section 9 will not apply to jaguars which were 
held in captivity or a controlled environment on December 28, 1973, or 
the date of this publication, provided that such holding and any 
subsequent holding of such jaguars was not in the course of a 
commercial activity. For clarification, the pre-Act date is the date of 
publication of the final rule listing the species; the jaguar will have 
two pre-Act dates depending upon its origin. The Service considers 
jaguars currently held in captivity in the United States to of 
originated from parental stock outside of the United States and, thus, 
their pre-Act date is December 28, 1973. Jaguars legally obtained in 
the United States from the wild could be considered to be pre-Act if 
obtained on or prior to the date of this rulemaking and not held in the 
course of a commercial activity.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances. 
Regulations governing permits are at 50 CFR 17.22. Such permits are 
available for scientific purposes, to enhance the propagation or 
survival of the species, and/or for incidental take in connection with 
otherwise lawful activities. Requests for copies of the regulations 
regarding listed wildlife and inquiries about prohibitions and permits 
may be addressed to the Service's Southwest Regional Office, P.O. Box 
1306, Albuquerque, New Mexico, 87103 (505/248-6666).
    It is the policy of the Service (59 FR 34272) to identify to the 
maximum extent practicable those activities that would or would not 
constitute a violation of section 9 of the Act at the time of listing. 
The intent of this policy is to increase public awareness of the effect 
of listing on proposed or ongoing activities. The Service believes 
that, based on the best available information, the following actions 
will not result in a violation of section 9, provided these activities 
are carried out in accordance with any existing regulations and permit 
requirements:
    1. Normal ranching activities, except predator control targeting 
large cats which results in inadvertent trapping or mortality of a 
jaguar.
    2. Habitat clearing, except in areas where jaguars are known to 
exist or have been known to exist.
    3. Fencing or other property delineation.
    4. If, when using dogs to tree mountain lions, a jaguar is 
inadvertently chased and/or treed by the dogs, so long as the dogs are 
called off upon realization that a jaguar is being chased.
    The following activities would likely violate section 9 of the Act:
    1. Any activity specifically prohibited by the Act (e.g., shooting, 
hunting, trapping, etc.)
    2. Intentional clearing or destruction of habitat known to be 
occupied by jaguars.
    3. Any activities that fall within the definition of harass and 
harm. The Service has defined the terms harass and harm as follows: 
Harass means an intentional or negligent act or omission which creates 
the likelihood of injury to wildlife by annoying it to such an extent 
as to significantly disrupt normal behavior patterns which include, but 
are not limited to, breeding, feeding, or sheltering. Harm has been 
defined as an act which actually kills or injures wildlife. Such acts 
may include significant habitat modification or degradation when it 
actually kills or injures wildlife by significantly impairing essential 
behavioral patterns including breeding, feeding or sheltering.
    4. Predator control activities targeting large cats that trap, 
kill, or otherwise injure jaguars.
    Contacts have been identified to assist the public in determining 
whether a particular activity would be prohibited under section 9 of 
the Act. In Arizona, contact the Field Supervisor in Phoenix (see 
ADDRESSES section). In California, contact the Field Supervisor, 
Carlsbad Field Office, 2730 Loker Avenue West, Carlsbad, California 
92008 (619/431-9440). In Louisiana, contact the Field Supervisor, 
Lafayette Field Office, 825 Kaliste Saloom, #102, Lafayette, Louisiana 
70508 (318/264-6630). In New Mexico, contact the Supervisor, Ecological 
Services Field Office, 2105 Osuna Road NE., Albuquerque, New Mexico 
87113 (505/761-4525). In Texas, contact the Supervisor, Ecological 
Services Field Office, 10711 Burnet Road, Suite 200, Hartland Bank 
Building, Austin, Texas 78758 (512/490-0057).

National Environmental Policy Act

    The Service has determined that Environmental Assessments and 
EIS's, as defined under the authority of the National Environmental 
Policy Act of 1969, need not be prepared in connection with regulations 
adopted pursuant to section 4(a) of the Act, as amended. A notice 
outlining the Service's reasons for this determination was published in 
the Federal Register on October 25, 1983 (48 FR 49244).

Required Determinations

    The Service has examined this regulation under the Paperwork 
Reduction Act of 1995 and found it to contain no information collection 
requirements.

References Cited

    A complete list of all references cited herein is available on 
request from the Field Supervisor, Arizona Ecological Services Field 
Office (see ADDRESSES section).
    Author: The primary authors of this final rule are William Austin 
and Bruce Palmer of the Arizona Ecological Services Field Office (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, and Transportation.

Regulation Promulgation

    Accordingly, part 17, subchapter B of chapter I, title 50 of the 
Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Section 17.11(h) is amended by revising the entry for ``Jaguar'' 
under MAMMALS in the List of Endangered and Threatened Wildlife to read 
as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 39157]]



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                       Species                                                      Vertebrate                                                          
------------------------------------------------------                           population where                                 Critical     Special  
                                                            Historic range         endangered or        Status     When listed    habitat       rules   
           Common name              Scientific name                                 threatened                                                          
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Mammals                                                                                                                                    
                                                                                                                                                        
                  *                  *                  *                  *                  *                  *                    *                 
Jaguar..........................  Panthera onca......  U.S.A. (AZ, CA, LA, NM,   Entire...........  E............       5, 622           NA           NA
                                                        TX), Mexico, Central                                                                            
                                                        and South America.                                                                              
                                                                                                                                                        
                  *                  *                  *                  *                  *                  *                    *                 
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: July 14, 1997.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 97-19208 Filed 7-21-97; 8:45 am]
BILLING CODE 4310-55-P