[Federal Register Volume 75, Number 8 (Wednesday, January 13, 2010)]
[Proposed Rules]
[Pages 1741-1744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-479]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2009-0091; BFY2009-92210-1117-0000-B2]


Endangered and Threatened Wildlife and Plants; Determination That 
Designation of Critical Habitat is Prudent for the Jaguar

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of determination.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), under the 
Endangered Species Act of 1973, as amended (Act), have reconsidered our 
prudency determination concerning the designation of critical habitat 
for the jaguar (Panthera onca) and now find that designation of 
critical habitat is prudent. We are preparing a proposed designation of 
critical habitat for the jaguar in accordance with the Act this fiscal 
year and anticipate we will publish a proposed designation in January 
2011.

DATES: To be considered in the proposed critical habitat designation, 
comments and information should be submitted to us by March 15, 2010.

ADDRESSES: You may submit comments by one of the following methods:
     Electronically: Go to the Federal eRulemaking Portal: 
http://www.regulations.gov. In the Keyword box, enter Docket No. [FWS-
R2-ES-2009-0091], which is the docket number for this rulemaking. Then, 
in the Search panel on the left side of the screen, under the Document 
Type heading, click on the Proposed Rules link to locate this document. 
You may submit a comment by clicking on ``Send a Comment or 
Submission.''
     By hard copy: Submit by U.S. mail or hand-delivery to: 
Public Comments Processing, Attn: FWS-R2-ES-2009-0091; Division of 
Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 
N. Fairfax Drive, Suite 222; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comment Procedures and Public Availability of Comments 
under SUPPLEMENTARY INFORMATION for more information).

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, 
Arizona Ecological Services Office, 2321 West Royal Palm Road, Suite 
103, Phoenix, AZ 85021-4951; telephone (602) 242-0210; facsimile (602) 
242-2513. If you use a telecommunications device for the deaf (TDD), 
call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    The jaguar, a large member of the cat family (Felidae), is an 
endangered species that currently occurs from southern Arizona and New 
Mexico to southern South America. Jaguars in the United States are part 
of a population, or populations, that occur in Mexico. Below we present 
a summary of relevant information we used in making our determination 
that designating critical habitat in the United States for the jaguar 
is prudent. For more information regarding all aspects of the jaguar, 
refer to documents posted on our jaguar webpage (http://www.fws.gov/southwest/es/arizona/Jaguar.htm), and Jaguar Conservation Team 
documents and notes (www.azgfd.gov/w--c/es/

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jaguar--management.shtml), and the literature cited there.
    Jaguars in the United States historically occurred in California, 
Arizona, New Mexico, Texas, and possibly Louisiana (62 FR 39147; July 
22, 1997). The last confirmed jaguar sightings in California, Texas, 
and Louisiana were in the late 1800s or early 1900s. While jaguars have 
been documented as far north as the Grand Canyon, sightings in the 
United States from 1996 to the present have occurred mainly within 
approximately 40 miles (mi) (64.4 kilometers (km)) of the international 
boundary of the United States and Mexico. Based on documented sightings 
in the late 20th century, occurrences in the United States at the time 
of the July 22, 1997, listing (62 FR 39147) were limited to 
southeastern Arizona and southwestern New Mexico.
    Recently (1996 through 2009), four or possibly five jaguars have 
been documented in the United States (McCain and Childs 2008, p. 5; 
Service files). Of those, two jaguars were photographed in the United 
States in 1996: one on March 7 in the Peloncillo Mountains, located 
along the Arizona--New Mexico border (Glenn 1996; Brown and Lopez 
Gonzalez 2001, p. 6), and another on August 31 in the Baboquivari 
Mountains in southern Arizona (Childs 1998, p. 7; Brown and Lopez 
Gonzalez 2001, p. 6). In February 2006, a third jaguar was observed and 
photographed in Hidalgo County, New Mexico. Using camera traps, jaguars 
were photographed in the United States near the Arizona--Mexico border 
beginning in 2001, and as recently as February 2009. This survey effort 
resulted in the detection of the male jaguar originally observed in the 
Baboquivari Mountains in 1996 referred to above; and possibly a fifth 
jaguar that was unidentified and not determined as to sex. No females 
or kittens were detected as a result of this monitoring effort. 
Monitoring of jaguars with the use of camera traps in the United States 
has been geographically limited in scope (from the crest of the 
Baboquivari Mountains east to the San Rafael Valley and approximately 
50 mi (80 km) north of the international boundary) (McCain and Childs 
2008, p. 5). Therefore, we cannot make conclusions regarding the 
presence of other jaguars, including females and kittens, outside the 
scope of this monitoring effort.
    We are not aware of any comprehensive rangewide population 
estimates for jaguars; however, Chavez and Ceballos (2006, p. 10) 
report the jaguar population in Mexico is estimated at less than 5,000, 
and Rabinowitz (as cited by Nowell and Jackson 1996, p. 121) estimated 
Belize's jaguar population at between 600 and 1,000 individuals. 
Experts reported 5,680 observations of jaguars (some of these are 
likely observations of the same animal) at 535 separate locations 
throughout the entire range during the last 10 years (Sanderson et al. 
2002, p. 62). There are estimates of jaguar densities ranging from 1.7 
to 4 adults per 38.6 square mi (100 square km) in Brazil, Peru, 
Colombia, and Mexico, with the highest density found in Belize (6-8 per 
100 square km) (International Union for the Conservation of Nature 
(IUCN) 2008, p. 5).

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) which may require special management 
considerations or protection; and, (ii) specific areas outside the 
geographical area occupied by a species at the time it was listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and its implementing 
regulations at 50 CFR 424.12, require that, to the maximum extent 
prudent and determinable, the Secretary designate critical habitat at 
the time a species is determined to be endangered or threatened. 
According to our regulations in the Code of Federal Regulations (CFR) 
at (50 CFR 424.12(a)(1)) 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 threat to 
the species, or (2) such designation of critical habitat would not be 
beneficial to the species.

Previous Federal Actions

    In 1972, the jaguar was listed as endangered (37 FR 6476; March 30, 
1972) in accordance with the Endangered Species Conservation Act of 
1969, a precursor to the Endangered Species Act of 1973, as amended 
(Act; 16 U.S.C. 1531 et seq.). Under the Endangered Species 
Conservation Act, the Service maintained separate listings for foreign 
species and species native to the United States. At that time, the 
jaguar was believed to be extinct in the United States; thus, the 
jaguar was only included on the foreign species list. The jaguar's 
range was described as extending from the international boundary of the 
United States and Mexico southward to include Central and South America 
(37 FR 6476). On July 22, 1997, we published a final listing rule that 
extended endangered status for the jaguar into the United States (62 FR 
39147). For more information on previous Federal actions concerning the 
jaguar, please refer to the July 22, 1997, final listing rule (62 FR 
39147).
    The July 22, 1997, listing rule included a determination that 
designation of critical habitat for the jaguar was not prudent (62 FR 
39147). At that time we determined that the greatest threat to the 
jaguar in the United States was from direct taking of individuals 
through shooting or other means. As a consequence, we determined that 
designating critical habitat for the jaguar was ``not prudent,'' 
because ``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,'' and 
therefore increase the degree of threat to the species.
    In response to a complaint by the Center for Biological Diversity, 
we agreed to re-evaluate our 1997 prudency determination and make a new 
determination as to whether designation of critical habitat for the 
jaguar was prudent by July 3, 2006. In that subsequent finding (July 
12, 2006; 71 FR 39335), we noted that since the time of our July 22, 
1997, determination, the Jaguar Conservation Team, Arizona Game and 
Fish Department, publications, and other sources routinely have given 
specific and general locations of jaguars that have been sighted and 
currently are being documented in the United States through websites, 
public notifications, reports, books, and meeting notes. Publishing 
critical habitat maps and descriptions, as part of designating critical 
habitat, would not result in the species being more vulnerable in the 
United States than it is currently. We then assessed whether 
designation of critical habitat would be beneficial to the species. We 
found that no areas in the United States meet the definition of 
critical habitat and, as a result, designation of critical habitat for 
the jaguar would not be beneficial to the species. As a result, we 
again

[[Page 1743]]

determined that designation of critical habitat for the jaguar was not 
prudent (71 FR 39335). We did not consider designation of lands outside 
of the United States in this analysis, because, under the Act's 
implementing regulations, critical habitat cannot be designated in 
foreign countries (50 CFR 424.12(h)).
    The Center for Biological Diversity again challenged the Service's 
decision that critical habitat was not prudent for the jaguar. On March 
30, 2009, the United States District Court for the District of Arizona 
(Court) issued an opinion in Center for Biological Diversity v. 
Kempthorne, CV 07-372-TUC JMR (Lead) and Defenders of Wildlife v. Hall, 
CV08-335 TUC JMR (Consolidated) (D. Ariz., Mar. 30, 2009) that set 
aside our previous prudency determination and required that we issue a 
new determination as to ``whether to designate critical habitat,'' 
i.e., whether such designation is prudent, by January 8, 2010. In this 
opinion, the Court noted, among other things, that the Service's 
regulations at 50 CFR 424.12(b) require that the Service ``shall focus 
on the principal biological constituent elements within the defined 
area that are essential to the conservation of the species.'' Such 
elements include consideration of space for individual and population 
growth, and for normal behavior; food, water, air, light, minerals, or 
other nutritional or physiological requirements; cover or shelter; 
sites for breeding, reproduction, rearing of offspring, germination, or 
seed dispersal; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.

Prudency Determination

    As instructed by the Court, we have reevaluated our previous ``not 
prudent'' finding regarding critical habitat designation for the jaguar 
and the information supporting our previous findings. We have also 
evaluated information and analysis that has become available to us 
subsequent to the July 12, 2006, finding. As discussed in the 
Background section above, jaguars have been found in the United States 
in the past and may occur in the United States now or in the future. As 
such, there are physical and biological features that can be used by 
jaguars in the United States. Thus, in responding to the Court's order, 
and following a review of the best available information, including the 
ongoing conservation programs for the jaguar, we now determine that the 
designation of critical habitat for the jaguar would be beneficial. We 
also determine that designation of critical habitat will not be 
expected to increase the degree of threat to the species. As such, we 
no longer find that designation of critical habitat for the jaguar is 
not prudent under our regulations, and conversely, therefore determine 
that designation is prudent. We discuss below how we intend to proceed 
with developing a proposed designation of critical habitat for the 
jaguar.

How the Service Intends to Proceed

    We intend to begin preparation of proposed rulemaking for the 
jaguar in Fiscal Year 2010 and publish a proposed critical habitat 
designation in January 2011. Based on the best available science, we 
will take the following steps to develop a proposal of critical habitat 
for the jaguar: (1) Determine the geographical area occupied by the 
species at the time of listing; (2) identify the physical or biological 
features essential to the conservation of the species; (3) delineate 
areas within the geographical area occupied by the species that contain 
these features, and identify the special management considerations or 
protections the features may require; (4) delineate any areas outside 
of the geographical area occupied by the species at the time of listing 
that are essential for the conservation of the species; (5) conduct 
appropriate analyses under section 4(b)(2) of the Act; and (6) invite 
the public to review and provide comments on the proposed critical 
habitat rule through a public comment period.
    To aid us in completing these steps, we will use the best science 
available, including but not limited to Boydston and Lopez Gonzalez 
2005, Brown and Lopez Gonzalez 2000, Brown and Lopez Gonzalez 2001, 
Carrillo et al. 2007, Cavalcanti 2008, Ceballos et al. 2006, Chavez and 
Ceballos 2006, Chavez et al. 2007a, Chavez et al. 2007b, Grigione et 
al. 2007, Grigione et al. 2009, Hatten et al. 2002, Hatten et al. 2005, 
Marieb 2005, McCain and Childs 2008, Medellin et al. 2002, Menke and 
Hayes 2003, Monroy-Vichis et al. 2007, Navarro Serment et al. 2005, 
Nuxntilde;ez et al. 2002, Oropeza Hernandez et al. 2009, Robinson 2006, 
Rosas Rosas 2006, Sanderson et al. 2002, and Sierra Institute 2000. We 
also solicit the public for additional information (see Request for 
Public Information section below) and will consult experts on the 
jaguar, including experts on the jaguar in the northern portion of its 
range.
    While the proposed designation of critical habitat for the jaguar 
is under preparation, the areas occupied by jaguars in the United 
States will continue to be subject to conservation actions implemented 
under section 7(a)(1) of the Act, as well as consultation pursuant to 
section 7(a)(2) of the Act for Federal activities that may affect 
jaguars, as determined on the basis of the best available scientific 
information at the time of the action. In addition, the prohibition of 
taking jaguars under section 9 of the Act (e.g., prohibitions against 
killing, harming, harassing, and capturing jaguars) continues to apply, 
which addresses the single greatest threat to the species in the United 
States, as discussed in the final listing rule.
    We will also continue to use our authorities to work with agencies 
and other partners in the United States, Mexico, and Central and South 
America to conserve and recover jaguars. We are working with the Jaguar 
Conservation Team and other partners to develop and implement a 
framework for the conservation of the northern jaguar populations, 
including providing recommendations on research needs and procedures in 
the United States, continuing education efforts, and providing 
recommendations regarding predator control in areas where jaguars may 
occur. We are also working with Mexican partners, such as Naturalia and 
La Comision Nacional de areas Protegidas (CONANP) and other partners on 
jaguar conservation in Mexico through the Trilateral Commission and 
other processes. The Service's Wildlife Without Borders program has 
funded and will likely continue to fund jaguar conservation projects 
throughout the range of the jaguar in Latin America. Mexico and 
countries in Central and South America, along with their 
nongovernmental partners, are continuing conservation efforts, 
including implementing research programs and developing conservation 
plans. Specifically, Federal and State agencies in Mexico are 
developing jaguar conservation plans; we intend to coordinate with 
Mexico in their development to maintain travel corridors for jaguars 
into the United States.

Request for Public Information

    We intend that any designation of critical habitat for the jaguar 
be as accurate as possible. Therefore, we will continue to accept 
additional information and comments from all concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this finding. We are particularly interested in 
information concerning:

[[Page 1744]]

    (1) The amount and distribution of jaguar habitat, both throughout 
its range and within the United States;
    (2) The physical and biological features of jaguar habitat that are 
essential to the conservation of the species;
    (3) Special management considerations or protections that the 
features essential to the conservation of the jaguar may require, 
including managing for the potential effects of climate change;
    (4) Any areas that are essential to the conservation of the jaguar 
throughout its range and why;
    (5) The areas in the United States that were occupied at the time 
of listing that contain features essential to the conservation of the 
species;
    (6) The areas in the United States that were not occupied at the 
time of listing, but are essential to the conservation of the species 
and why;
    (7) Land use designations and current or planned activities in 
jaguar habitats and their possible impacts on proposed critical 
habitat;
    (8) Conservation programs and plans that protect the jaguar and its 
habitat; and
    (9) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.

Public Comment Procedures

    To ensure that any final action resulting from this finding will be 
as accurate and as effective as possible, we request that you send 
relevant information for our consideration. The comments that will be 
most useful and likely to influence our decisions are those that you 
support by quantitative information or studies and those that include 
citations to, and analyses of, the applicable laws and regulations. 
Please make your comments as specific as possible and explain the bases 
for them. In addition, please include sufficient information with your 
comments to allow us to authenticate any scientific or commercial data 
you include.
    You must submit your comments and materials concerning this finding 
by one of the methods listed above in the ADDRESSES section. We will 
not accept comments sent by e-mail or fax or to an address not listed 
in ADDRESSES. If you submit a comment via http://www.regulations.gov, 
your entire comment--including any personal identifying information, 
such as your address, telephone number, or e-mail address--will be 
posted on the Web site. Please note that comments submitted to this Web 
site are not immediately viewable. When you submit a comment, the 
system receives it immediately. However, the comment will not be 
publicly viewable until we post it, which might not occur until several 
days after submission.
    If you mail or hand-carry a hardcopy comment directly to us that 
includes personal information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. To ensure that the 
electronic docket for this finding is complete and all comments we 
receive are publicly available, we will post all hardcopy comments on 
http://www.regulations.gov.
    In addition, comments and materials we receive, as well as 
supporting documentation used in preparing this finding, will be 
available for public inspection in two ways:
    (1) You can view them on http://www.regulations.gov. In the Search 
Documents box, enter FWS-R2-ES-2009-0091, which is the docket number 
for this action. Then, in the Search panel on the left side of the 
screen, select the type of documents you want to view under the 
Document Type heading.
    (2) You can make an appointment, during normal business hours, to 
view the comments and materials in person at the Arizona Ecological 
Services Office (see FOR FURTHER INFORMATION CONTACT).

Public Availability of Comments

    As stated above in more detail, before including your address, 
phone number, e-mail address, or other personal identifying information 
in your comment, you should be aware that your entire comment--
including your personal identifying information--may be made publicly 
available at any time. While you can ask us in your comment to withhold 
your personal identifying information from public review, we cannot 
guarantee that we will be able to do so.

References Cited

    A complete list of references cited is available on the Internet at 
Docket No. FWS-R2-ES-2009-0091 at http://www.regulations.gov and upon 
request from the Arizona Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT).

Author(s)

    The primary author of this notice is the staff of the U.S. Fish and 
Wildlife Service.

Authority

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

    Dated: December 30, 2009.
Eileen Sobeck,
Acting Assistant Secretary for Fish, Wildlife and Parks.
[FR Doc. 2010-479 Filed 1-12-10; 8:45 am]
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