[Federal Register Volume 77, Number 161 (Monday, August 20, 2012)]
[Proposed Rules]
[Pages 50214-50242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19950]



[[Page 50213]]

Vol. 77

Monday,

No. 161

August 20, 2012

Part II





 Department of the Interior





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 Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Jaguar; Proposed Rule

  Federal Register / Vol. 77 , No. 161 / Monday, August 20, 2012 / 
Proposed Rules  

[[Page 50214]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2012-0042; 4500030114]
RIN 1018-AX13


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Jaguar

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the jaguar (Panthera onca) under the 
Endangered Species Act of 1973, as amended (Act). In total, we propose 
to designate as critical habitat approximately 339,220 hectares 
(838,232 acres) in Pima, Santa Cruz, and Cochise Counties, Arizona, and 
Hidalgo County, New Mexico.

DATES: We will accept comments received or postmarked on or before 
October 19, 2012. We must receive requests for public hearings, in 
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by 
October 4, 2012.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search field, enter Docket No. FWS-R2-ES-
2012-0042, which is the docket number for this rulemaking. Then click 
on the Search button. You may submit a comment by clicking on ``Comment 
Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2012-0042; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

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

SUPPLEMENTARY INFORMATION:

Executive Summary

    This rule proposes to designate critical habitat for the species. 
This is a proposed rule to designate critical habitat for an endangered 
mammal, the jaguar (Panthera onca). In total, we are proposing 
approximately 339,220 hectares (838,232 acres) for designation as 
critical habitat for the jaguar in Pima, Santa Cruz, and Cochise 
Counties, Arizona, and Hidalgo County, New Mexico. We are proposing to 
designate six critical habitat units for the jaguar in Arizona and New 
Mexico as follows:
     Approximately 56,241 ha (138,975 ac) in the Baboquivari 
Mountains, Arizona.
     Approximately 58,104 ha (143,578 ac) in the Tumacacori, 
Atascosa, and Pajarito Mountains, Arizona.
     Approximately 138,821 ha (343,033 ac) in the Santa Rita, 
Patagonia, and Huachuca Mountains and Canelo Hills, Arizona.
     Approximately 42,694 ha (105,498 ac) in the Whetstone 
Mountains, including connections to the Santa Rita and Huachuca 
Mountains, Arizona.
     Approximately 40,290 ha (99,559 ac) in the Peloncillo 
Mountains, Arizona and New Mexico.
     Approximately 3,071 ha (7,590 ac) in the San Luis 
Mountains, New Mexico.
    We are preparing an economic analysis. To ensure that we consider 
the probable economic impacts of the proposed designation, pursuant to 
section 4(b)(2) of the Act, we are preparing an economic analysis. The 
analysis will be used to inform the development of the final 
designation of critical habitat for the jaguar. We will publish an 
announcement and seek public comments on the draft economic analysis 
when it is completed.
    We will seek peer review. We are seeking comments from independent 
specialists to ensure that our critical habitat designation is based on 
scientifically sound data, assumptions, and analyses. We have invited 
these peer reviewers to comment on our specific assumptions and 
conclusions used to develop this proposed critical habitat designation. 
Because we will consider all comments and information received during 
the comment period, our final determination may differ from this 
proposal.

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned government agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.) including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of jaguar habitat;
    (b) What areas, that were occupied at the time of listing (1972) 
(or are currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
why;
    (c) What period of time surrounding the time of listing (1972) 
should be used to determine occupancy and why, and whether or not data 
from 1982 to the present should be used in this determination;
    (d) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (e) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the jaguar and proposed critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, any impacts on small entities or families, 
and the benefits of including or excluding areas that exhibit these 
impacts.
    (6) If lands owned and managed by Fort Huachuca should be 
considered for exemption because the Integrated Natural Resources 
Management Plan for the Fort currently benefits the jaguar, whether or 
not the species is specifically addressed.
    (7) Whether any specific areas we are proposing for critical 
habitat designation should be considered for

[[Page 50215]]

exclusion under section 4(b)(2) of the Act, and whether the benefits of 
potentially excluding any specific area outweigh the benefits of 
including that area under section 4(b)(2) of the Act.
    (8) 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.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. You may request 
at the top of your document that we withhold personal information such 
as your street address, phone number, or email address from public 
review; however, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Arizona Ecological Services Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
designation of critical habitat for jaguar in this proposed rule. For 
more information on the species itself, refer to the Previous Federal 
Actions section, below, the final listing clarification rule published 
in the Federal Register on July 22, 1997 (62 FR 39147), and the 
previous critical habitat prudency determination published in the 
Federal Register on July 12, 2006 (71 FR 39335).

Species Information

    The jaguar (Panthera onca), 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 are muscular 
cats with relatively short, massive limbs and a deep-chested body. They 
are cinnamon-buff in color with many black spots; melanistic (dark 
coloration) forms are also known, primarily from the southern part of 
the range.
    The life history of the jaguar has been summarized by Seymour 
(1989, entire) and Brown and L[oacute]pez Gonz[aacute]lez (2001, 
entire), among others. Jaguars breed year-round rangewide, 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, 
although a wild male jaguar in Arizona was documented to be at least 15 
years of age (Johnson et al. 2011, p. 12), and in Jalisco, Mexico, two 
wild females were documented to be at least 12 and 13 
(N[uacute][ntilde]ez 2011, pers. comm.). The consensus of jaguar 
experts is that the average lifespan of the jaguar is 10 years.
    The list of prey taken by jaguars throughout their range includes 
more than 85 species (Seymour 1989, p. 4). Known prey include, but are 
not limited to, collared peccaries (javelina (Pecari tajacu)), white-
lipped peccaries (Tayassu pecari), capybaras (Hydrochoerus spp.), pacas 
(Agouti paca), agoutis (Dasyprocta spp.), armadillos (Dasypus spp.), 
caimans (Caiman spp.), turtles (Podocnemis spp.), white-tailed deer 
(Odocoileus virginianus), livestock, and various other reptiles, birds, 
and fish (sources as cited in Seymour 1989, p. 4; N[uacute][ntilde]ez 
et al. 2000, pp. iii-iv; Rosas-Rosas 2006, p. 17; Rosas-Rosas et al. 
2008, pp. 557-558). Jaguars are considered opportunistic feeders, 
especially in rainforests, and their diet varies according to prey 
density and ease of prey capture (sources as cited in Seymour 1989, p. 
4). Jaguars equally use medium- and large-size prey, with a trend 
toward use of larger prey as distance increases from the equator 
(L[oacute]pez Gonz[aacute]lez and Miller 2002, p. 218). Javelina and 
white-tailed deer are thought to be the mainstays in the diet of 
jaguars in the United States and Mexico borderlands (Brown and 
L[oacute]pez Gonz[aacute]lez 2001, p. 51).

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 (ESCA), a precursor to the Endangered Species Act of 1973, as 
amended (Act; 16 U.S.C. 1531 et seq.). Under the ESCA, 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 included only 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). In 1973, the 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). 
In this regulation, the jaguar's range again was described as including 
Central and South America (40 FR 44412), but not the United States.
    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 these species, 
including the jaguar, 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 U.S. populations of these species (including 
the jaguar) 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 
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 April 10, 1995, Congress enacted a moratorium prohibiting work 
on listing actions (Pub. L. 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

[[Page 50216]]

1996 (Pub. L. 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 July 22, 1997, we 
published a final rule clarifying that endangered status for the jaguar 
extended 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 clarifying rule (62 FR 39147).
    The July 22, 1997, clarifying 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.'' 
Therefore, we believed that a critical habitat designation would 
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 by July 3, 2006 as to whether designation of critical 
habitat for the jaguar was prudent. 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 had given 
specific and general locations of jaguars that had been sighted in the 
United States, and, as of 2006, these sightings were being documented 
through Web sites, 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 was currently (in 2006). 
We then assessed whether designation of critical habitat would be 
beneficial to the species. We found that no areas in the United States 
met 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 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.
    On January 13, 2010, we published a notice of determination that we 
had reevaluated our previous ``not prudent'' finding regarding critical 
habitat designation for the jaguar and the information supporting our 
previous findings (75 FR 1741). We also evaluated information and 
analysis that became available subsequent to the July 12, 2006, 
finding. We determined there were 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 scientific 
and commercial information, including the ongoing conservation programs 
for the jaguar, we determined that the designation of critical habitat 
for the jaguar would be beneficial. We also determined that designation 
of critical habitat would not be expected to increase the degree of 
threat to the species. We solicited comments and information on this 
determination, and stated we anticipated publishing a proposed critical 
habitat designation in the Federal Register by January 2011.
    On October 18, 2010, we sent a letter to the Center for Biological 
Diversity and Defenders of Wildlife updating them on our process of 
developing a recovery plan and critical habitat for the jaguar. We 
stated that, because of scant information currently available for 
northern jaguars, we would be convening a bi-national Jaguar Recovery 
Team to synthesize information on the jaguar, focusing on a unit 
comprising jaguars in the northern portion of their range. We further 
stated that we would be working with the Conservation Breeding 
Specialist Group of the Species Survival Commission/International Union 
for Conservation of Nature to conduct a population viability analysis 
and a population and habitat viability analysis for the jaguar. We 
anticipated that these analyses would assist us in determining those 
recovery actions that would be most effective for achieving a viable 
jaguar population, as well as providing information relevant to 
determining critical habitat for the jaguar. Additionally, we stated 
that, based on the unusual situation where the best information on 
habitat in the United States essential to the conservation of the 
jaguar was being gathered through the recovery planning effort, we 
would postpone publishing a proposed critical habitat rule until spring 
2012.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided

[[Page 50217]]

under the Act are no longer necessary. Such methods and procedures 
include, but are not limited to, all activities associated with 
scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographic area occupied by the species at the time it 
was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical and biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, and soil type) that are essential to the 
conservation of the species. Primary constituent elements are the 
elements of physical or biological features that, when laid out in the 
appropriate quantity and spatial arrangement to provide for a species' 
life-history processes, are essential to the conservation of the 
species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographic area 
occupied by the species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. For 
example, an area currently occupied by the species but that was not 
occupied at the time of listing may be essential to the conservation of 
the species and may be included in the critical habitat designation. We 
designate critical habitat in areas outside the geographic area 
occupied by a species only when a designation limited to its range 
would be inadequate to ensure the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.

Jaguar Habitat Requirements in the United States and U.S.-Mexico 
Borderlands Area

    Most of the information regarding jaguar habitat requirements comes 
from Central and South America; little, if any, is available for the 
northwestern-most portion of its range, including the United States. 
Jaguar habitat in Central and South America is quite different from 
habitat available in the U.S.-Mexico borderlands area, where jaguars 
show a high affinity for lowland wet communities, including swampy 
savannas or tropical rain forests toward and at middle latitudes. Swank 
and Teer (1989, p. 14) state that jaguars prefer a warm, tropical 
climate, usually associated with water, and are rarely found in 
extensive arid areas. Rabinowitz (1999, p. 97) affirms that the most 
robust jaguar populations have been associated with tropical climates 
in areas of low elevation with dense cover and year-round water 
sources. Brown and L[oacute]pez Gonz[aacute]lez (2001, p. 43) further 
state that, in South and Central America, jaguars usually avoid open 
country like grasslands or desertscrub, instead preferring the closed 
vegetative

[[Page 50218]]

structure of nearly every tropical forest type.
    However, jaguars have been documented in arid areas of northwestern 
Mexico and the southwestern United States, including thornscrub, 
desertscrub, lowland desert, mesquite grassland, Madrean oak woodland, 
and pine-oak woodland communities (Brown and L[oacute]pez 
Gonz[aacute]lez 2001, pp. 43-50; Boydston and L[oacute]pez 
Gonz[aacute]lez 2005, p. 54; McCain and Childs 2008, p. 7; Rosas-Rosas 
and Bender 2012, p. 88). The more open, dry habitat of the southwestern 
United States has been characterized as marginal habitat for jaguars in 
terms of water, cover, and prey densities (Rabinowitz 1999, p. 97). 
However, McCain and Childs (2008, p. 7) documented two male jaguars 
(and possibly a third) using an extensive area including habitats of 
the Sonoran lowland desert, Sonoran desert scrub, mesquite grassland, 
Madrean oak woodland, and pine-oak woodland in mountain ranges in 
southern Arizona. Therefore, while habitat in the United States can be 
considered marginal when compared to other areas throughout the 
species' range, it appears that a few, possibly resident jaguars are 
able to use the more open, arid habitat found in the southwestern 
United States.
    To define the physical and biological features required for jaguar 
habitat in the United States, we are relying on studies conducted in 
Mexico as close to the U.S.-Mexico border as available. Many of these 
studies have been compiled and summarized by the Jaguar Recovery Team 
in the Recovery Outline for the Jaguar (Jaguar Recovery Team 2012, 
entire) and Digital Mapping in Support of Recovery Planning for the 
Northern Jaguar report (Sanderson and Fisher 2011, pp. 1-11). These 
documents describe the entire Northwestern Recovery Unit and 
Northwestern Management Unit of the jaguar (see Jaguar Recovery 
Planning in Relation to Critical Habitat, below) including areas of 
Sonora, Chihuahua, Sinaloa, Nayarit, and Jalisco, Mexico, and south-
central and southeastern Arizona and southeastern New Mexico in the 
United States (Jaguar Recovery Team 2012, pp. 20-24). When U.S.-
specific data are available, we attempt to narrow the focus of our 
analysis to information within the United States to determine the 
physical and biological features currently present that provide jaguar 
habitat north of the border.
    The Jaguar Recovery Team (2012, pp. 15-16) determined that high-
quality habitat for jaguars in the Northwestern Recovery Unit and 
Northwestern Management Unit includes the following features: (1) High 
abundance of native prey, particularly large prey like deer and peccary 
and adequate numbers of medium-sized prey; (2) water available within 
10 kilometers (km) (6.2 miles (mi)) year round; (3) dense vegetative 
cover (to stalk and ambush prey and for denning and resting), 
particularly including Sinaloan thornscrub; (4) rugged topography, 
including canyons and ridges, and some rocky hills good for denning and 
resting; (5) connectivity to allow normal demographic processes to 
occur and maintain genetic diversity; (6) expansive areas of adequate 
habitat (i.e., area large enough to support 50 to 100 jaguars) with low 
human density; (7) low human activity, development, and infrastructure, 
including low densities of high-speed roads, mines, and agriculture; 
and (8) no to low jaguar persecution or poaching by humans. Therefore, 
we are basing our definition of jaguar habitat in the United States on 
these features but with modifications more applicable to areas north of 
the U.S.-Mexico border (see Physical or Biological Features, below).

Jaguar Recovery Planning in Relation to Critical Habitat

    The 2012 Recovery Outline for the Jaguar describes two recovery 
units for the jaguar across its range, the Northwestern and Pan 
American Recovery Units (Jaguar Recovery Team 2012, p. 58). Recovery 
units are subunits of the listed species' habitat that are 
geographically or otherwise identifiable and essential to the recovery 
of the species (Jaguar Recovery Team 2012, p. 20).
    Recovery units for the jaguar are further divided into core, 
secondary, and peripheral areas (Jaguar Recovery Team 2012, pp. 20-23). 
Core areas have both persistent verified records of jaguar occurrence 
over time and recent evidence of reproduction. Secondary areas are 
those that contain jaguar habitat with either or both historical or 
recent records of jaguar presence with no recent record or very few 
records of reproduction. In peripheral areas, most historical jaguar 
records are sporadic, and there is no or minimal evidence of long-term 
presence or reproduction that might indicate colonization or sustained 
use of these areas by jaguars.
    Potential jaguar habitat in the U.S.-Mexico borderlands area is 
part of the secondary area of the Northwestern Management Unit within 
the Northwestern Recovery Unit for the jaguar (Jaguar Recovery Team 
2012, p. 58). Because such a small portion of the jaguar's range occurs 
in the United States, it is anticipated that recovery of the entire 
species will rely primarily on actions that occur outside of the United 
States; activities that may adversely or beneficially affect jaguars in 
the United States are less likely to affect recovery than activities in 
core areas of their range (Jaguar Recovery Team 2012, p. 38). However, 
the portion of the United States is located within a secondary area 
that provides a recovery function benefitting the overall recovery unit 
(Jaguar Recovery Team 2012, pp. 40, 42). For example, specific areas 
within this secondary area that provide the physical and biological 
features essential to jaguar habitat can contribute to the species' 
persistence and, therefore, overall conservation by providing areas to 
support some individuals during dispersal movements, by providing small 
patches of habitat (perhaps in some cases with a few resident jaguars), 
and as areas for cyclic expansion and contraction of the nearest core 
area and breeding population in the Northwestern Recovery Unit (about 
210 km (130 mi) south of the U.S.-Mexico border in Sonora near the 
towns of Huasabas, Sahuaripa (Brown and L[oacute]pez Gonz[aacute]lez 
2001, pp. 108-109), and Nacori Chico (Rosas-Rosas and Bender 2012, pp. 
88-89)). Independent peer review cited in our July 22, 1997, clarifying 
rule (62 FR 39147, pp. 39153-39154) states that individuals dispersing 
into the United States are important because they occupy habitat that 
serves as a buffer to zones of regular reproduction and are potential 
colonizers of vacant range, and that, as such, areas supporting them 
are important to maintaining normal demographics, as well as allowing 
for possible range expansion. As described in the Recovery Outline for 
the Jaguar, the Northwestern Recovery Unit is essential for the 
conservation of the species; therefore, consideration of the spatial 
and biological dynamics that allow this unit to function and that 
benefit the overall unit is prudent. Providing connectivity from the 
United States to Mexico is a key element to maintaining those 
processes.
    As mentioned above, the U.S. lands within the secondary area of the 
Northwestern Recovery Unit are also located within the Northwestern 
Management Unit. Management units, as described in the Recovery 
Outline, are areas within a recovery unit that might require different 
management, be managed by different entities, or encompass different 
populations (Jaguar Recovery Team 2012, p. 40). The U.S. lands located 
within the Northwestern Management Unit simply acknowledge the 
existence of different species

[[Page 50219]]

management on either side of the International Border with Mexico. This 
additional description of the U.S. lands as part of management unit 
does not mean that the habitat in United States has any less 
significance within the secondary area of the recovery unit.
    Additionally, as thoroughly discussed in the Recovery Outline for 
the Jaguar (Jaguar Recovery Team 2012, pp. 19-20) and Johnson et al. 
(2011, pp. 30-31), populations at the edge of a species' range play a 
role in maintaining the total genetic diversity of a species; in some 
cases, these peripheral populations persist the longest as 
fragmentation and habitat loss impact the total range (Channell and 
Lomolino 2000, pp. 84-85). The United States and northwestern Mexico 
represent the northernmost extent of the jaguar's range, with 
populations persisting in distinct ecological conditions (xeric, or 
extremely dry, habitat) that occur nowhere else in the species' range 
(Sanderson et al. 2002, entire). Peripheral populations such as these 
are an important genetic resource in that they may be beneficial to the 
protection of evolutionary processes and the environmental systems that 
are likely to generate future evolutionary diversity (Lesica and 
Allendorf 1995, entire). This may be particularly important considering 
the potential threats of global climate change (see ``Climate Change,'' 
below). The ability for jaguars in the Northwestern Recovery Unit to 
utilize physical and biological habitat features in the Northwestern 
Management Unit is ecologically important to the recovery of the 
species; therefore, maintaining connectivity to Mexico is essential to 
the conservation of the jaguar.
Climate Change
    The degree to which climate change will affect jaguar habitat in 
the United States is uncertain, but it has the potential to adversely 
affect the jaguar within the next 50 to 100 years (Jaguar Recovery Team 
2012, p. 32). Climate change will be a particular challenge for 
biodiversity because the interaction of additional stressors associated 
with climate change and current stressors may push species beyond their 
ability to survive (Lovejoy 2005, pp. 325-326). The synergistic 
implications of climate change and habitat fragmentation are the most 
threatening facet of climate change for biodiversity (Hannah and 
Lovejoy 2005, p. 4). Current climate change predictions for terrestrial 
areas in the Northern Hemisphere indicate warmer air temperatures, more 
intense precipitation events, and increased summer continental drying 
(Field et al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 
2005, p. 6; Intergovernmental Panel on Climate Change (IPCC) 2007, p. 
1181). Climate change may lead to increased frequency and duration of 
severe storms and droughts (Golladay et al. 2004, p. 504; McLaughlin et 
al. 2002, p. 6074; Cook et al. 2004, p. 1015).
    The current prognosis for climate change impacts in the American 
Southwest includes fewer frost days; warmer temperatures; greater water 
demand by plants, animals, and people; and an increased frequency of 
extreme weather events, such as heat waves, droughts, and floods (Weiss 
and Overpeck 2005, p. 2074; Archer and Predick 2008, p. 24). How 
climate change will affect summer precipitation is less certain, 
because precipitation predictions are based on continental-scale 
general circulation models that do not yet account for land use and 
land cover effects or regional phenomena, such as those that control 
monsoonal rainfall in the Southwest (Weiss and Overpeck 2005, p. 2075; 
Archer and Predick 2008, pp. 23-24). Some models predict dramatic 
changes in Southwestern vegetation communities as a result of climate 
change (Weiss and Overpeck 2005, p. 2074; Archer and Predick 2008, p. 
24), especially as wildfires carried by nonnative plants (e.g., 
buffelgrass) potentially become more frequent, promoting the presence 
of exotic species over native ones (Weiss and Overpeck 2005, p. 2075).
    The impact of future drought, which may be long-term and severe 
(Seager et al. 2007, pp. 1183-1184; Archer and Predick 2008, entire), 
may affect jaguar habitat in the U.S.-Mexico borderlands area, but the 
information currently available on the effects of global climate change 
and increasing temperatures does not make sufficiently precise 
estimates of the location and magnitude of the effects. We do not know 
whether the changes that have already occurred have affected jaguar 
populations or distribution, nor can we predict how the species will 
adapt to or be affected by the type and degree of climate changes 
forecast. We are not currently aware of any climate change information 
specific to the habitat of the jaguar that would indicate what areas 
may become important to the species in the future. Therefore, we are 
unable to determine what additional areas, if any, may be appropriate 
to include in the final critical habitat designation for this species 
specifically to address the effects of climate change.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographic area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. 
These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographic, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for jaguars from studies of this species' habitat, ecology, and life 
history as described below. Additional information can be found in the 
final clarifying rule published in the Federal Register on July 22, 
1997 (62 FR 39147), the Recovery Outline for the Jaguar (Jaguar 
Recovery Team 2012, entire), and the Digital Mapping in Support of 
Recovery Planning for the Northern Jaguar report (Sanderson and Fisher 
2011, pp. 1-11). We have determined that the following physical or 
biological feature is essential for the jaguar: Expansive open spaces 
in the southwestern United States with adequate connectivity to Mexico 
that contain a sufficient native prey base and available surface water, 
have suitable vegetative cover and rugged topography to provide sites 
for resting, and have minimal human impact, as further described below.
Space for Individual and Population Growth and for Normal Behavior
    Expansive open spaces--Jaguars require a significant amount of 
space for individual and population growth and for normal behavior. 
Jaguars have relatively large home ranges and, according to Brown and 
L[oacute]pez Gonz[aacute]lez (2001, p. 60), their home ranges are 
highly variable and depend on topography, available prey, and 
population dynamics. Home ranges need to provide reliable surface 
water, available prey, and sites for resting that are removed from the 
impacts of human activity and influence (Jaguar Recovery

[[Page 50220]]

Team 2012, pp. 15-16). The availability of these habitat 
characteristics can fluctuate within a year (dry versus wet seasons) 
and between years (drought years versus wet years).
    Specific home ranges for jaguars depend on the sex, season, and 
vegetation type. The home ranges of borderland jaguars are presumably 
as large or larger than the home ranges of tropical jaguars (Brown and 
L[oacute]pez Gonz[aacute]lez 2001, p. 60; McCain and Childs 2008, pp. 
6-7), as jaguars in this area are at the northern limit of their range 
and the arid environment contains resources and environmental 
conditions that are more variable than those in the tropics (Hass 2002, 
as cited in McCain and Childs 2008, p. 6). Therefore, jaguars require 
more space in arid areas to obtain essential resources such as food, 
water, and cover (discussed below).
    Only one limited home range study using standard radio-telemetry 
techniques and two home range studies using camera traps have been 
conducted for jaguars in northwestern Mexico. Telemetry data from one 
adult female tracked for 4 months during the dry season in Sonora 
indicated a home range size of 100 square km (37 square mi) 
(L[oacute]pez Gonz[aacute]lez 2011, pers. comm.). Additionally, using 
camera traps, a male in Sonora was documented using an average home 
range of 84 square km (32 square mi) (L[oacute]pez Gonz[aacute]lez 
2011, pers. comm.). No home range studies using standard radio-
telemetry techniques have been conducted for jaguars in the 
southwestern United States, although McCain and Childs (2008, p. 5), 
using camera traps, reported one jaguar in southeastern Arizona as 
having a minimum observed ``range'' of 1,359 square km (525 square mi) 
encompassing two distinct mountain ranges. This study, however, was not 
designed to determine home range size; therefore, we are relying on 
minimum home-range estimates for male and female jaguars from Sonora, 
Mexico (L[oacute]pez Gonz[aacute]lez 2011, pers. comm.) for the minimum 
amount of adequate habitat required by jaguars in the United States.
    Therefore, based on the information above, we identify expansive 
open spaces in the United States of at least 84 to 100 square km (32 to 
37 square mi) in size with connectivity to Mexico, adequate native prey 
and available surface water, suitable vegetative cover and rugged 
topography to provide sites for resting, and minimal human impact as 
the essential components of the physical or biological feature 
essential for the conservation of the jaguar in the United States.
    Connectivity between expansive open spaces in the United States and 
Mexico--As discussed in the Jaguar Recovery Planning in Relation to 
Critical Habitat section, above, connectivity between the United States 
and Mexico is essential for the conservation of jaguars. Therefore, we 
identify connectivity between expansive open spaces in the United 
States and Mexico as an essential component of the physical or 
biological feature essential for the conservation of the jaguar in the 
United States.
    Connectivity between expansive open spaces within the United 
States--We know that connectivity between areas of habitat for the 
jaguar in the United States is necessary if viable habitat for the 
jaguar is to be maintained. This is particularly true in the 
mountainous areas of Arizona and New Mexico, where isolated mountain 
ranges providing the physical and biological features of jaguar habitat 
are separated by valley bottoms that may not possess the features 
described in this proposed rule. However, we also know that, based on 
home range sizes and research and monitoring, jaguars will use valley 
bottoms and other areas of habitat connectivity to move among areas of 
higher quality habitat found in isolated mountain ranges. We 
acknowledge that jaguars use connective areas to move between mountain 
ranges in the United States; however, as they are mainly using them for 
passage, jaguars do not linger in these areas. As a result, there is 
only one occurrence record of a jaguar in these areas. With only one 
record, we are unable to describe the features of these areas because 
of a lack of information. Therefore, while we acknowledge that habitat 
connectivity within the United States is important, the best available 
scientific and commercial information does not allow us to determine 
that any particular area within the valleys is essential, and all of 
the valley habitat is not essential to the conservation of the species. 
Therefore we are not designating any areas within the valleys between 
the montane habitat as critical habitat.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Food--Jaguar and large-cat experts believe that high-quality 
habitat for jaguars in the northwestern portion of their range should 
include a high abundance of native prey, particularly large prey like 
white-tailed deer and collared peccary (javelina), as well as an 
adequate number of medium-sized prey (Jaguar Recovery Team 2012, pp. 
15-16). However, the Jaguar Recovery Team (2012, pp. 15-16) did not 
quantify ``high abundance'' or ``adequate number'' of each type of 
prey, making it difficult to state the density of prey required to 
sustain a resident jaguar in this portion of its range.
    Jaguars usually catch and kill their prey by stalking or ambush and 
biting through the nape as do most Felidae (members of the cat family) 
(Seymour 1989, p. 5). Like other large cats, jaguars rely on a 
combination of cover, surprise, acceleration, and body weight to 
capture their prey (Schaller 1972 and Hopcraft et al. 2005, as cited by 
Cavalcanti 2008, p. 47). Jaguars are considered opportunistic feeders, 
and their diet varies according to prey density and ease of prey 
capture (sources as cited in Seymour 1989, p. 4). Jaguars equally use 
medium- and large-size prey, with a trend toward use of larger prey as 
distance increases from the equator (L[oacute]pez Gonz[aacute]lez and 
Miller 2002, p. 218).
    In northeastern Sonora, where the northernmost breeding population 
of jaguars occurs, Rosas-Rosas (2006, pp. 24-25) found that large prey 
greater than 10 kilograms (kg) (22 pounds (lbs)) accounted for more 
than 80 percent of the total biomass consumed. Specifically, cattle 
accounted for more than half of the total biomass consumed (57 
percent), followed by white-tailed deer (23 percent), and collared 
peccary (5.12 percent). Medium-sized prey (1-10 kg; 2-22 lbs), 
including lagomorphs (rabbit family) and coatis (Nasua nasua), 
accounted for less than 20 percent of biomass. Small prey, less than 1 
kg (2 lbs), were not found in scats (Rosas-Rosas 2006, p. 24). At the 
Chamela-Cuixmala Biosphere Reserve in Jalisco, Mexico (which is closed 
to livestock grazing), deer and javelina were the two most preferred 
prey species for jaguars, with jaguars consuming the equivalent of 85 
deer per individual per year (Brown and L[oacute]pez Gonz[aacute]lez 
2001, p. 51). No estimates of the number of javelina consumed were 
provided, although in combination with deer, armadillo, and coati, 
these four prey items provided 98 percent of the biomass taken by 
jaguars (Brown and L[oacute]pez Gonz[aacute]lez 2001, p. 50). Most 
jaguar experts believe that collared peccary and deer are mainstays in 
the diet of jaguars in the United States and Mexico borderlands (62 FR 
39147), although other available prey, including coatis, skunk 
(Mephitis spp., Spilogale gracilis), raccoon (Procyon lotor), 
jackrabbit (Lepus spp.), domestic livestock, and horses are taken as 
well (Brown and L[oacute]pez Gonz[aacute]lez 2001, p. 51;

[[Page 50221]]

Hatten et al. 2005, p. 1024; Rosas-Rosas 2006, p. 24).
    Therefore, based on the information above, we identify areas 
containing adequate numbers of native prey, including deer, javelina, 
and medium-sized prey items (such as coatis, skunks, raccoons, or 
jackrabbits) as an essential component of the physical and biological 
feature essential for the conservation of the jaguar in the United 
States.
    Water--Several studies have demonstrated that jaguars require 
surface water within a reasonable distance year-round. This requirement 
likely stems from increased prey abundance at or near water sources 
(Cavalcanti 2008, p. 68; Rosas-Rosas et al. 2010, pp. 107-108), 
particularly in arid environments, although it is conceivable that 
jaguars require a nearby water source for drinking, as well. Seymour 
(1989, p. 4) found that jaguars are most commonly found in areas with a 
water supply, although the distance to this water supply is not 
defined. In northeastern Sonora, Mexico, Rosas-Rosas et al. (2010, p. 
107) found that sites of jaguar cattle kills were positively associated 
with proximity to permanent water sources. They also found that these 
sites were positively associated with proximity to roads, but concluded 
that the effect of roads likely represented a response to major 
drainages, as roads generally followed major drainages within their 
study area.
    In the United States, only one modeling study analyzing distance to 
water as a feature of jaguar habitat has been conducted. Hatten et al. 
(2005, p. 1026) used jaguar records from Arizona dating from 1900 to 
2002, selecting the most reliable records (those with physical evidence 
or from a reliable witness) and most spatially accurate records (those 
with spatial errors of less than 8 km (5 mi)) to create a habitat 
suitability model. Of the 57 records they considered, 25 records were 
deemed reliable and accurate enough to include in the model. Using a 
digital Geographic Information System (GIS) layer that included 
perennial and intermittent water sources (streams, rivers, lakes, and 
springs), Hatten et al. (2005, p. 1029) found that when perennial and 
intermittent water sources were combined, 100 percent of the 25 jaguar 
records used for their model were within 10 km (6.2 mi) of a water 
source. This distance from water (10 km; 6.2 mi) was then incorporated 
into jaguar habitat modeling exercises in New Mexico (Menke and Hayes 
2003, pp. 15-16), and in northern Mexico and the U.S.-Mexico 
borderlands area (Sanderson and Fisher 2011, pp. 10-11), and was 
further acknowledged by jaguar and large cat researchers (primarily 
with expertise in the northwestern-most portion of the jaguar range) as 
the maximum distance an area could be from a year-round water source to 
constitute high-quality jaguar habitat (Jaguar Recovery Team 2012, pp. 
15-16).
    Using data compiled by Sanderson and Fisher (2011, database) and 
McCain and Childs (2008, entire, and unpublished data), we collected 
undisputed Class I reports of jaguar locations in the United States 
since the time the species was listed (see Criteria Used To Identify 
Critical Habitat, below). Our compilation of data resulted in 130 
reports of jaguar locations to use in our analysis, of which we found 
that approximately 98 percent occurred within 10 km (6.2 mi) of a water 
source. Therefore, based on the information above, we identify sources 
of surface water within at least 20 km (12.4 mi) of each other such 
that a jaguar would be within 10 km (6.2 mi) of a water source at any 
given time (i.e., if it were halfway between these water sources) as an 
essential component of the physical or biological feature essential for 
the conservation of the jaguar in the United States.
Cover or Shelter
    Vegetative cover--Jaguars require vegetative cover allowing them to 
stalk and ambush prey, as well as providing areas in which to den and 
rest (Jaguar Recovery Team 2012, pp. 15-16). Jaguars are known from a 
variety of vegetation communities (Seymour 1989, p. 2), sometimes 
called biotic communities or vegetation biomes (Brown 1994, p. 9). 
Jaguars have been documented in arid areas in northwestern Mexico and 
the southwestern United States, including thornscrub, desertscrub, 
lowland desert, mesquite grassland, Madrean oak woodland, and pine-oak 
woodland communities (Brown and L[oacute]pez Gonz[aacute]lez 2001, pp. 
43-50; Boydston and L[oacute]pez Gonz[aacute]lez 2005, p. 54; McCain 
and Childs 2008, p. 7; Rosas-Rosas et al. 2010, p. 103). As most of the 
information pertaining to jaguar habitat in the U.S.-Mexico borderlands 
relies on descriptions of biotic communities from Brown and Lowe (1980, 
map) and Brown (1994, entire, including appendices), for purposes of 
this document we are using these same sources and descriptions, as 
well.
    According to Brown and L[oacute]pez Gonz[aacute]lez (2001, p. 46), 
the most important biotic community for jaguars in the southwestern 
borderlands (Arizona, New Mexico, Sonora, Chihuahua) is Sinaloan 
thornscrub (as described in Brown 1994, pp. 100-105), with 80 percent 
of the jaguars killed in the state of Sonora documented in this 
vegetation biome (Brown and L[oacute]pez Gonz[aacute]lez 2001, p. 48). 
This biotic community, however, is absent in the United States (Brown 
and Lowe 1980, map; Brown and L[oacute]pez Gonz[aacute]lez 2001, p. 
49). Madrean evergreen woodland is also important for borderlands 
jaguars; nearly 30 percent of jaguars killed in the borderlands region 
were documented in this biotic community (Brown and L[oacute]pez 
Gonz[aacute]lez 2001, p. 45). Brown and L[oacute]pez Gonz[aacute]lez 
(2000, p. 538) indicate jaguars in Arizona and New Mexico predominantly 
use montane environments, probably because of more amiable temperatures 
and prey availability. A smaller, but still notable, number of jaguars 
were killed in chaparral and shrub-invaded semidesert grasslands (Brown 
and L[oacute]pez Gonz[aacute]lez 2001, p. 48). In Arizona, 
approximately 15 percent of the jaguars taken within the State between 
the years 1900 and 2000 were in semidesert grasslands (Brown and 
L[oacute]pez Gonz[aacute]lez 2001, p. 49).
    The more recent sightings (2001-2007), as described in McCain and 
Childs (2008, entire), document jaguars in these same biotic 
communities (note that the Madrean evergreen woodland and semidesert 
grassland biotic communities encompass the Sonoran lowland desert, 
Sonoran desert scrub, mesquite grassland, Madrean oak woodland, and 
pine-oak woodland habitats), and the most recent sighting of a jaguar 
in Arizona (2011) was in Madrean evergreen woodland, as well (Arizona 
Game and Fish Department, unpublished data).
    Several modeling studies incorporating vegetation characteristics 
have attempted to refine the general understanding of habitats that 
have been or might be used by jaguars in the United States. To 
characterize vegetation biomes, Hatten et al. (2005, entire) used a 
digital vegetation layer based on Brown and Lowe (1980, map) and Brown 
(1994, entire). They found that 100 percent of the 25 jaguar records 
used for their model were observed in four vegetation biomes, 
including: (1) Scrub grasslands of southeastern Arizona (56 percent); 
(2) Madrean evergreen forest (20 percent); (3) Rocky Mountain montane 
conifer forest (12 percent); and (4) Great Basin conifer woodland (12 
percent).
    In addition, two studies (Menke and Hayes 2003, entire; Robinson et 
al. 2006, entire) attempted to evaluate potential jaguar habitat in New 
Mexico

[[Page 50222]]

using methods similar to those described in Hatten et al. (2005, pp. 
1025-1028). However, due to the small number of reliable and spatially 
accurate records within New Mexico, neither model was able to determine 
patterns of habitat use (and associated vegetation communities) for 
jaguars in New Mexico, instead relying on literature and expert opinion 
for elements to include in the models. These vegetation communities 
included Madrean evergreen woodland, which Menke and Hayes (2003, p. 
13) considered the most similar to habitats used by the closest 
breeding populations of jaguars in Mexico, as well as grasslands 
(semidesert, Plains and Great Basin, and subalpine), interior 
chaparral, conifer forests and woodlands (Great Basin, Petran montane, 
and Petran subalpine), and desertscrub (Chihuahuan, Arizona upland 
Sonoran, and Great Basin).
    Finally, Sanderson and Fisher (2011, pp. 1-11) created a jaguar 
habitat model for northwestern Mexico and the U.S.-Mexico borderlands 
area using the methodology described in Hatten et al. (2005, pp. 1025-
1028), but with some modifications. From 54 references published 
between the years 1737 and 2010, they compiled 333 potential jaguar 
locations from across the United States and northern Mexico (Sanderson 
and Fisher 2011, p. 4). These records were not selected to include only 
those that were reliable and spatially accurate (as described above in 
Hatten et al. 2005, pp. 1025-1026). Instead, they included cultural 
evidence (such as a jaguar painting in a cave or a place name including 
the word jaguar), sightings of live animals or their sign, mortalities 
(such as hunting events or jaguars killed after a predation event), and 
observations of possible jaguars (such as a cat, spotted cat, or large 
quadruped (four-footed animal)) (details as described in the database 
associated with Sanderson and Fisher 2011). Another modification 
Sanderson and Fisher (2011, pp. 7-8) made was to substitute a digital 
layer describing tree cover for the digital vegetation layer based on 
Brown and Lowe (1980, map) and Brown (1994, entire). In doing so, 
Sanderson and Fisher (2011, p. 9) determined the percent tree cover at 
each of the 333 locations used in their model, reporting that 
approximately 70 percent of the locations were in areas with 3 to 60 
percent tree cover. They then used this range of tree cover as a 
variable delineating jaguar habitat (Sanderson and Fisher 2011, p. 11).
    Using the same digital vegetation layer as Hatten et al. (2005, p. 
1028) and the tree cover layer used by Sanderson and Fisher (2011, pp. 
7-8), we analyzed 130 jaguar locations in the United States and found 
that approximately 98 percent of them occurred in Madrean evergreen 
woodlands and semidesert grasslands, with 88 percent occurring in areas 
containing 3 to 40 percent tree cover. Therefore, based on the 
information above, we identify Madrean evergreen woodlands and 
semidesert grasslands containing 3 to 40 percent tree cover as an 
essential component of the physical or biological feature essential for 
the conservation of the jaguar in the United States.
    Rugged topography--Rugged topography (including canyons, ridges, 
and some rocky hills to provide sites for resting) is acknowledged as 
an important component of jaguar habitat in the northwestern-most 
portion of its range (Jaguar Recovery Team 2012, pp. 15-16). The 
habitat model for the Northern Jaguar Recovery Unit created by 
Sanderson and Fisher (2011, p. 9) determined that jaguars in this area 
were most frequently found in intermediately, moderately, and highly 
rugged terrain. Additionally, one study in the U.S.-Mexico borderlands 
area (Boydston and L[oacute]pez Gonz[aacute]lez 2005, entire) and one 
in northeastern Mexico (Ortega-Huerta and Medley 1999, entire) 
incorporate slope as a factor in describing jaguar habitat. Although 
slope can provide some understanding of topography (steep slopes 
generally indicate a more rugged landscape), it is less descriptive in 
terms of quantifying terrain heterogeneity (diversity) (Hatten et al. 
2005, pp. 1026-1027). Nonetheless, in these studies, jaguar 
distribution was found to be on steeper slopes than those slopes that 
were available for the study areas in general (Ortega-Huerta and Medley 
1999, p. 261; Boydston and L[oacute]pez Gonz[aacute]lez 2005, p. 54), 
indicating jaguars were found in more rugged areas in these studies.
    Two modeling exercises have been conducted to determine existing 
jaguar habitat in the southwestern United States, one in Arizona and 
another in New Mexico. To examine the relationship between jaguars and 
landscape roughness in Arizona, Hatten et al. (2005, p. 1026) 
calculated a terrain ruggedness index (TRI; Riley et al. 1999, as cited 
in Hatten et al. 2005, p. 1026) measuring the slope in all directions 
of each 1-square-km (0.4-square-mi) cell (pixel) in their model. They 
divided the TRI data into seven classes according to relative 
roughness: level, nearly level, slightly rugged, intermediately rugged, 
moderately rugged, highly rugged, and extremely rugged. With respect to 
topography, they found that 92 percent of the 25 jaguar records used in 
their model (see ``Water'' in the ``Food, Water, Air, Light, Minerals, 
or Other Nutritional or Physiological Requirements'' section, above) 
occurred in intermediately rugged to extremely rugged terrain (the 
remaining 8 percent were in nearly level terrain).
    Menke and Hayes (2003, entire) attempted to evaluate potential 
jaguar habitat in New Mexico using methods similar to those described 
in Hatten et al. (2005, pp. 1025-1028). While patterns of habitat use 
for jaguars could not be determined (due to the small number of 
reliable and spatially accurate records within New Mexico, of which 
there were seven), all sighting locations occurred in areas that were 
assigned a highly rugged value, and terrain ruggedness was the single 
variable that appeared to have a high degree of correlation with 
locations of jaguar observations in New Mexico.
    In addition, Sanderson and Fisher (2011, p. 9) determined that 
approximately 70 percent of the 333 locations used in their model for 
the Northwestern Recovery Unit of the jaguar were found in 
intermediately, moderately, or highly rugged terrain. Similarly, our 
analysis of 130 records of jaguar locations in the United States 
resulted in approximately 93 percent occurring in intermediately, 
moderately, or highly rugged terrain. Therefore, based on this 
information, we identify areas of intermediately, moderately, or highly 
rugged terrain as an essential component of the physical or biological 
feature essential for the conservation of the jaguar in the United 
States.
Habitats Protected From Disturbance or Representative of the 
Historical, Geographic, and Ecological Distributions of the Species
    Human populations can impact jaguars directly by killing 
individuals through hunting, poaching, or depredation control, as well 
as indirectly through disturbance of normal biological activities, loss 
of habitat, and habitat fragmentation. Rangewide, illegal killing of 
jaguars is one of the two most significant threats to the jaguar 
(Nowell and Jackson 1996, p. 121; N[uacute][ntilde]ez et al. 2002, p. 
100; Taber et al. 2002, p. 630; Ch[aacute]vez and Ceballos 2006, p. 
10), and, according to the July 22, 1997, clarifying rule (62 FR 
39147), the primary threat to jaguars in the United States is illegal 
shooting (see listing rule for a detailed discussion). This, however, 
is no longer accurate, as the most recent known shooting of a jaguar in 
Arizona was in 1986 (Brown and Lopez Gonz[aacute]lez 2001, p. 7). 
Jaguars are protected by Federal law through the Act and by State law 
in Arizona and

[[Page 50223]]

New Mexico. Four of the individual jaguars most recently documented 
(since 1996) in Arizona and New Mexico have been documented by lion 
hunters, who took photographs of the jaguars and then reported them to 
the Arizona Game and Fish Department and the Service. No livestock 
predation has been attributed to jaguars since 1947; therefore, none 
have been killed in response to predating livestock. While illegal 
killing of jaguars continues to be a major threat to jaguars south of 
the U.S.-Mexico international border, it does not appear to be a 
significant threat within the United States.
    In terms of human influence and impact on jaguars other than by 
direct killing, human populations have both direct and indirect impacts 
on jaguar survival and mortality. For example, an increase in road 
density and human settlements tends to fragment habitat and isolate 
populations of jaguars and other wildlife. For carnivores in general, 
the impacts of high road density have been well documented and 
thoroughly reviewed (Noss et al. 1996 and Carroll et al. 2001, as cited 
by Menke and Hayes 2003, p. 12). Roads may have direct impacts to 
carnivores and carnivore habitats, including roadkill, disturbance, 
habitat fragmentation, changes in prey numbers or distribution, and 
increased access for legal or illegal harvest (Menke and Hayes 2003, p. 
12; Colchero et al. 2010, entire). Studies have also shown that jaguars 
selectively use large areas of relatively intact habitat away from 
certain forms of human influence. Zarza et al. (2007, pp. 107, 108) 
report that towns and roads had an impact on the spatial distribution 
of jaguars in the Yucatan peninsula, where jaguars used areas located 
more than 6.5 km (4 mi) from human settlements and 4.5 km (2.8 mi) from 
roads. In the state of Mexico, Monroy-Vilchis et al. (2008, p. 535) 
report that one male jaguar occurred with greater frequency in areas 
relatively distant from roads and human populations. In some areas of 
western Mexico, however, jaguars (both sexes) have frequently been 
recorded near human settlements and roads (N[uacute][ntilde]ez 2011, 
pers. comm.). In Marismas Nacionales, Nayarit, a jaguar den was 
recently located very close to an agricultural field, apparently 1 km 
(0.6 mi) from a small town (N[uacute][ntilde]ez 2011, pers. comm.). 
Jaguar presence is affected in different ways by various human 
activities; however, direct persecution likely has the most significant 
impact.
    Because jaguars are secretive animals and generally tend to avoid 
highly disturbed areas (Quigley and Crawshaw 1992, entire; Hatten et 
al. 2005, p. 1025), human density was a factor considered in jaguar 
habitat modeling exercises for Arizona (Hatten et al. 2005, p. 1025), 
New Mexico (Menke and Hayes 2003, pp. 9-13; Robinson et al. 2006, pp. 
10, 15, 18-20), and the habitat model developed by Sanderson and Fisher 
(2011, pp. 5-11) for the northwestern Mexico and the U.S.-Mexico 
borderlands area. Hatten et al. (2005, p. 1025) excluded areas within 
city boundaries, higher density rural areas visible on satellite 
imagery, and agricultural areas from their Arizona habitat model, as 
recommended by jaguar experts. All of the jaguar locations used in 
their model fell outside of these areas, indicating jaguars are not 
found in highly developed or disturbed areas (Figure 6, p. 1031).
    Menke and Hayes (2003, pp. 9-13) attempted to evaluate potential 
jaguar habitat in New Mexico using methods similar to those described 
in Hatten et al. (2005, p. 1025). Because of a lack of comparable 
digital data for New Mexico, they instead created a data layer of road 
density per square km and classified it into habitat suitability 
categories. However, due to the small number of reliable and spatially 
accurate jaguar occurrence records within New Mexico (a total of 
seven), patterns of habitat use for jaguars could not be determined 
from their model, and they did not summarize the road density 
categories in which jaguars were found within the State. In the habitat 
model for New Mexico developed by Robinson et al. (2006), areas with 
continuous row crop agriculture, human residential development in 
excess of 1 house per 4 hectares (ha) (10 acres (ac)), or industrial 
areas were not considered jaguar habitat, and were therefore excluded 
from their model. Similarly to Menke and Hayes (2003, entire), patterns 
of habitat use for jaguars could not be determined from their model, 
and they did not summarize the human footprint categories in which 
jaguars were found within the State.
    The habitat model developed by Sanderson and Fisher (2011, pp. 5-
11) included a human influence index (HII) criterion developed by the 
Wildlife Conservation Society (WCS) and Center for International Earth 
Science Information Network (CIESIN) at the Socioeconomic Data and 
Applications Center (SEDAC) at Columbia University (SEDAC 2012, p. 1). 
Using procedures developed by Sanderson (2002, as described in SEDAC 
2012, pp. 1-2), WCS and CIESIN combined scores for eight input layers 
(human population density per square km, railroads, major roads, 
navigable rivers, coastlines, stable nighttime lighting, urban 
polygons, and land cover) to calculate a composite HII for 1-square-km 
(0.4-square-mi) grid cells (pixels) worldwide. These numbers were then 
normalized to fit within a scale from 1 to 100 within each of six world 
biomes (Africa, Asia, Europe, North America, South America, and 
Oceania). A score of 1 within a biome indicates that that grid cell is 
part of the one percent least influenced (or ``wildest'') area in its 
biome, while a score of 100 indicates that that area is the most 
influenced within the biome. Within the region considered for their 
habitat model, Sanderson and Fisher (2011, pp. 5-11) found that roughly 
90 percent of the 333 jaguar records used in their model were located 
in areas where the HII was less than 30. They therefore considered 
lands with a HII of less than 30 as potential jaguar habitat within 
their modeling exercise, while lands with a HII equal to or greater 
than 30 were excluded. Similarly, in our analysis of 130 reports of 
jaguar locations in the United States, we found that approximately 99 
percent occurred in areas where the HII was 20 or less. Therefore, 
based on this information, we identify areas in which the HII 
calculated over 1-square km (0.4-square mi) is 20 or less as an 
essential component of the physical or biological feature essential for 
the conservation of the jaguar in the United States. These areas are 
characterized by minimal to no human population density, no major 
roads, or no stable nighttime lighting over any 1-square km (0.4-square 
mi) area.
Primary Constituent Elements for Jaguars
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of jaguars in areas occupied at the time of listing, 
focusing on the features' primary constituent elements. We consider 
primary constituent elements to be the elements of physical or 
biological features that, when laid out in the appropriate quantity and 
spatial arrangement to provide for a species' life-history processes, 
are essential to the conservation of the species.
    The physical or biological feature we identified for the jaguar is: 
Expansive open spaces in the southwestern United States with adequate 
connectivity to Mexico that contain a sufficient native prey base and 
available surface water, have suitable vegetative cover and rugged 
topography to provide sites for resting, and have minimal human impact. 
Because habitat in the United States is at the edge of the species' 
northern range, and is marginal

[[Page 50224]]

compared to known habitat throughout the range, we have determined that 
all of the primary constituent elements discussed, below, must be 
present in each specific area to constitute high-quality jaguar habitat 
in the United States, including connectivity to Mexico (but that 
connectivity may be provided either through a direct connection to the 
border or by other areas essential for the conservation of the species; 
see ``Areas Essential for the Conservation of Jaguars Outside of 
Occupied Areas,'' below). Based on our current knowledge of the 
physical or biological feature and habitat characteristics required to 
sustain the jaguar's vital life-history functions in the Northwestern 
Management Unit and the United States, we determine that the primary 
constituent elements specific to jaguars are: Expansive open spaces in 
the southwestern United States of at least 84 to 100 square km (32 to 
37 square mi) in size which:
    (1) Provide connectivity to Mexico;
    (2) Contain adequate levels of native prey species, including deer 
and javelina, as well as medium-sized prey such as coatis, skunks, 
raccoons, or jackrabbits;
    (3) Include surface water sources available within 20 km (12.4 mi) 
of each other;
    (4) Contain 3 to 40 percent canopy cover within Madrean evergreen 
woodland, generally recognized by a mixture of oak, juniper, and pine 
trees on the landscape, or semidesert grassland vegetation communities, 
usually characterized by Pleuraphis mutica (tobosagrass) or Bouteloua 
eriopoda (black grama) along with other grasses;
    (5) Are characterized by intermediately, moderately, or highly 
rugged terrain;
    (6) Are characterized by minimal to no human population density, no 
major roads, or no stable nighttime lighting over any 1-square-km (0.4-
square-mi) area.
    Six units proposed to be designated as critical habitat are 
currently occupied by jaguars and contain the components of the primary 
constituent element in the appropriate quantity and spatial arrangement 
sufficient to support the life-history needs of the species. Two of 
these units also contain unoccupied subunits that provide connectivity 
to Mexico and are essential to the conservation of the species.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    Jaguar habitat and the features essential to their conservation are 
threatened by the direct and indirect effects of increasing human 
influence into remote, rugged areas, as well as projects and activities 
that sever connectivity to Mexico. These may include, but are not 
limited to: significant increases in border-related activities, both 
legal and illegal; widening or construction of roadways, power lines, 
or pipelines; construction or expansion of human developments; mineral 
extraction and mining operations; military activities in remote 
locations; and human disturbance related to increased activities in or 
access to remote areas.
    Jaguars in the United States are understood to be individuals 
dispersing north from Mexico, where the closest breeding population 
occurs about 210 km (130 mi) south of the U.S.-Mexico border in Sonora 
near the towns of Huasabas, Sahuaripa (Brown and L[oacute]pez 
Gonz[aacute]lez 2001, pp. 108-109), and Nacori Chico (Rosas-Rosas and 
Bender 2012, pp. 88-89). Therefore, impeding jaguar movement from 
Mexico to the United States would adversely affect the Northwestern 
Recovery Unit's ability to cyclically expand and contract as jaguar 
populations in that unit recover.
    Continuing threats from construction of border infrastructure (such 
as pedestrian fences and roads), as well as illegal activities and 
resultant law enforcement response (such as increased human presence, 
vehicles, and lighting), may limit movement of jaguars at the U.S-
Mexico border (Service 2007, pp. 23-27; 2008, pp. 73-75). The border 
from the Tohono O'odham Nation, Arizona, to southwestern New Mexico has 
a mix of pedestrian fence (not permeable to jaguars), vehicle fence 
(fence designed to prevent vehicle but not pedestrian entry; it is 
generally permeable enough to allow for the passage of jaguars), legacy 
(older) pedestrian and vehicle fence, and unfenced segments (primarily 
in rugged, mountainous areas). Fences designed to prevent the passage 
of humans across the border also prevent passage of jaguars. However, 
there is little to no impermeable fence in areas proposed for 
designation as critical habitat, and we do not anticipate the 
construction of impermeable fence in such areas. Additionally, fences 
may cause an increase in illegal traffic and subsequent law enforcement 
activities in areas where no fence exists (such as rugged, mountainous 
areas). This activity may limit jaguar movement across the border and 
result in general disturbance to jaguars and degradation of their 
habitat. While current levels of law enforcement activity do not pose a 
significant threat, a substantial increase in activity levels could be 
of concern. We note that some level of law enforcement activity can be 
beneficial, as it decreases illegal traffic. Significant increases in 
illegal crossborder activities in the proposed critical habitat areas 
could pose a threat to the jaguar, and therefore, border security 
actions provide a beneficial decrease in crossborder violations and 
their impacts. In summary, special management considerations or 
protection of the physical or biological features essential to the 
conservation of jaguar habitat may be needed to alleviate the effects 
of border-related activities, allowing for some level of permeability 
so that jaguars may pass through the U.S.-Mexico border.
    Under section 102 of the Illegal Immigration Reform and Immigrant 
Responsibility Act (IIRIRA), the Secretary of the Department of 
Homeland Security (DHS) is authorized to waive laws where the Secretary 
of DHS deems it necessary to ensure the expeditious construction of 
border infrastructure in areas of high illegal entry. As noted above, 
there are no known plans to construct additional security fences in the 
proposed critical habitat. However, if future national security issues 
require additional measures and the Secretary of DHS invokes the 
waiver, review through the section 7 consultation process would not be 
conducted. If DHS chooses to consult with the Service on activities 
covered by a waiver, special management considerations would occur on a 
voluntary basis.
    Widening or construction of roadways, power lines, or pipelines 
(all of which usually include maintenance roads), construction or 
expansion of human developments, mineral extraction and mining 
operations, and military operations on the ground can have the effect 
of altering habitat characteristics and increasing human presence in 
otherwise remote locations. Activities that can permanently alter 
vegetation characteristics, displace native wildlife, affect sources of 
water, and/or alter terrain ruggedness, such as construction and 
mining, may render an area unsuitable for jaguars. In addition, these 
activities, as well as military operations on the ground in remote 
areas, bring an increase in human disturbance into jaguar habitat, 
potentially fragmenting it further. As

[[Page 50225]]

described in the ``Habitats Protected from Disturbance or 
Representative of the Historical, Geographic, and Ecological 
Distributions of the Species'' section, above, studies have also shown 
that jaguars selectively use large areas of relatively intact habitat 
away from human influence (Zarza et al. 2007, pp. 107, 108). Modeling 
exercises both in the United States (Menke and Hayes 2003, entire; 
Hatten et al. 2005, entire; Robinson et al. 2006, entire) and in 
northwestern Mexico and the U.S.-Mexico borderlands area (Sanderson and 
Fisher 2011, pp. 1-11) incorporate low levels of human influence when 
mapping potential jaguar habitat in the United States. Special 
management considerations of the physical and biological features 
essential to the conservation of the jaguar may be needed to alleviate 
the effects of road, power line, and pipeline projects; human 
developments; mining operations; and ground-based military activities 
on jaguar habitat. Future projects should avoid (to the maximum extent 
possible) areas identified as meeting the definition of critical 
habitat for jaguars, and if unavoidable, should be constructed or 
carried out to minimize habitat effects.

Criteria Used To Identify Critical Habitat

    We reviewed available information and supporting data that pertains 
to the habitat requirements of the jaguar. Much of this information is 
compiled in the Recovery Outline for the Jaguar (Jaguar Recovery Team 
2012, entire) and Digital Mapping in Support of Recovery Planning for 
the Northern Jaguar report (Sanderson and Fisher 2011, pp. 1-11), which 
we regard as the best available information for the jaguar and its 
habitat needs in the northern portion of its range. Additionally, we 
relied on information provided through modeling exercises for Arizona 
(Hatten et al. 2005, entire) and New Mexico (Menke and Hayes 2003, 
entire; Robinson et al. 2006, entire) to further refine the habitat 
features available in the United States. Other sources of information 
include, but are not limited to, Boydston and L[oacute]pez 
Gonz[aacute]lez 2005, Brown and L[oacute]pez Gonz[aacute]lez 2000, 
Brown and L[oacute]pez Gonz[aacute]lez 2001, Cavalcanti 2008, Channell 
and Lomolino 2000, Ch[aacute]vez and Ceballos 2006, Colchero et al. 
2010, Johnson et al. 2011, Lesica and Allendorf 1995, L[oacute]pez 
Gonz[aacute]lez and Miller 2002, McCain and Childs 2008, Monroy-Vilchis 
et al. 2008, N[uacute][ntilde]ez et al. 2000, N[uacute][ntilde]ez et 
al. 2002, Ortega-Huerta and Medley 1999, Quigley and Crawshaw 1992, 
Rabinowitz 1999, Rosas-Rosas 2006, Rosas-Rosas et al. 2008, Rosas-Rosas 
et al. 2010, Rosas-Rosas and Bender 2012, Sanderson et al. 2002, 
Seymour 1989, Swank and Teer 1989, Taber et al. 2002, Zarza et al. 
2007, and comments and information provided during the public comment 
period on our January 13, 2010, prudency determination (75 FR 1741).
    We have defined the proposed critical habitat as areas with 
undisputed Class I records (see Occupied Area at the Time of Listing, 
below) containing all of the essential elements of the physical or 
biological feature described above, and, in areas not connected 
directly to Mexico, unoccupied areas providing connectivity to Mexico 
(see ``Areas Essential for the Conservation of Jaguars Outside of 
Occupied Areas,'' below).
Occupied Area at the Time of Listing
    Determining jaguar occupancy at the time of listing is particularly 
difficult. Jaguars were added to the list many years ago, and, by 
nature, are cryptic and difficult to detect, so assuming an area is 
occupied or unoccupied must be based on limited information that can be 
interpreted in several ways. For these reasons, we used the best 
information available to us and analyzed areas both as occupied as well 
as unoccupied but essential to the conservation of the jaguar. Based on 
our analysis, we are including areas which may have been occupied 
(meaning they contain an undisputed Class I record, described in the 
``Jaguar Sightings in the United States Since 1962'' section, below) 
from 1962 to the present. Our reasons for using this time frame are 
based on the date the jaguar was listed as endangered under the ESCA, 
the biology of the species, and a lack of survey effort for the species 
at the time it was listed. However, we acknowledge the uncertainty and 
lack of concrete information (undisputed Class I records, described 
below) during the period we are defining as occupied at the time of 
listing. Therefore, we have evaluated these areas and have also 
determined these areas to be essential to the conservation of the 
jaguar. Our rationale is explained below.
    While the jaguar was not explicitly listed in the United States 
until July 22, 1997 (62 FR 39147), we are using the date the jaguar was 
listed throughout its range as endangered in accordance with the ESCA, 
which is March 30, 1972 (37 FR 6476). Our rationale for using this date 
is based on our July 25, 1979, publication (44 FR 43705) in which we 
asserted that it was always the intent of the Service that all 
populations of these species, including the jaguar, deserved to be 
listed as endangered, whether they occurred in the United States or in 
foreign countries. Therefore, our intention was to consider the jaguar 
endangered throughout its entire range when it was listed as endangered 
in 1972, rather than only outside of the United States.
    We are including areas in which reports of jaguar exist during the 
10 years prior to its listing as occupied at the time of listing, 
meaning we are considering records back to 1962. Our rationale for 
including these records is based on expert opinion regarding the 
average life-span of the jaguar, the consensus being 10 years. 
Therefore, we assume that areas that would have been considered 
occupied at the time of listing would have included sightings 10 years 
prior to its listing, as presumably these areas were still inhabited by 
jaguars when the species was listed in 1972.
    For this same reason, we are including areas as occupied at the 
time of listing in which reports of jaguar exist during the 10 years 
after listing, meaning we are considering records up to 1982. If 
jaguars were present in an area within 10 years after the time of 
listing in 1972, presumably these areas would have been inhabited by 
jaguars in 1982.
    Additionally, we are including areas as occupied in which reports 
of jaguars exist from 1982 to the present. Our reasoning for including 
areas in which sightings have occurred after 1982 is that it is likely 
those areas were occupied at the time of the original listing, but 
jaguars had not been detected because of their rarity, the difficulty 
in detecting them, and a lack of surveys for the species, as described 
below.
    By the time the jaguar was listed in 1972, the species was rare 
within the United States, making those individuals that may have been 
present more difficult to detect. The gradual decline of the jaguar in 
the southwestern United States was concurrent with predator control 
measures associated with the settlement of land and the development of 
the cattle industry (Brown 1983, p. 460). For example, from 1900 to 
1949, 53 jaguars were recorded as killed in the Southwest, whereas only 
4 were recorded as killed between 1950 and 1979 (Brown 1983, p. 460). 
When a species is rare on the landscape, individuals are difficult to 
detect because they are sparsely distributed over a large area 
(McDonald 2004, p. 11).
    Jaguars, in particular, are territorial and require expansive open 
spaces for each individual, meaning large areas may be occupied by just 
a few individuals, thus reducing the

[[Page 50226]]

likelihood of detecting them. As evidence, only six, possibly seven, 
individual jaguars have been detected in the United States since 1982, 
including one that was documented utilizing two distinct mountain 
ranges encompassing approximately 1,359 square km (525 square mi) 
(McCain and Childs 2008, entire) (see ``Space for Individual and 
Population Growth and for Normal Behavior'' section, above). Therefore, 
we believe that Class I records within mountain ranges from 1982 to the 
present indicate that these mountain ranges were likely occupied by 
transient jaguars from Mexico at the time the species was listed, but 
individuals remained undetected due to the jaguar's ability to move 
long distances within and between mountain ranges.
    In addition, many mobile species are difficult to detect in the 
wild because of morphological features (such as camouflaged appearance) 
or elusive behavioral characteristics (such as nocturnal activity) 
(Peterson and Bayley 2004, pp. 173, 175). This presents challenges in 
determining whether or not a particular area is occupied because we 
cannot be sure that a lack of detection indicates that the species is 
absent (Peterson and Bayley 2004, p. 173).
    For example, the Sonoran desert tortoise is difficult to monitor in 
the wild because of its slow movement and camouflaged appearance, 
especially in the smaller hatchling and juvenile age classes. In 
addition, the habitat in which Sonoran desert tortoise population 
densities are the highest is complex, often with many large boulders, 
somewhat dense vegetation, and challenging topographic relief. These 
factors can significantly hamper a surveyor's ability to detect them in 
the field (Zylstra et al. 2010, p. 1311).
    Compounding this problem is the fact that in many animal 
populations, not all individuals can be detected using one particular 
sampling method. Pollock et al. (2004, p. 43) present the example of 
the dugong (sea cow) off the coast of Australia. Using one method of 
detection--aerial surveys--some dugongs may be underwater and invisible 
to the observers searching for them from aircraft, or the observer may 
miss detecting them due to his or her uncertain perception process. 
Similarly, terrestrial salamanders in North Carolina and Tennessee most 
often occur below the surface of the ground, making detection 
particularly difficult, especially when using standard sampling 
protocols that only sample the surface population (Pollock et al. 2004, 
p. 53). Sampling salamanders subsurface, however, can be problematic 
because they require cool, moist conditions, and are prone to 
dessicating (drying out) while being handled. Attempting to detect rare 
species by using multiple sampling methods or surveying multiple times 
is often prohibitively time-consuming and expensive, and may not always 
be feasible because of the sensitivity of the species.
    Jaguars, specifically, are secretive and nocturnal in nature 
(Seymour 1989, p. 2; 62 FR 39147, p. 39153; McCain and Childs 2008, p. 
5) and, in the United States and northern Mexico, inhabit rugged, 
remote areas that are logistically difficult to survey. Even in studies 
designed to detect jaguars using both camera traps and track surveys in 
northern Mexico, neither method was completely effective in identifying 
individuals due to logistical problems related to rugged topography, 
hard soils, absence of roads, and harsh weather conditions (Rosas-Rosas 
and Bender 2012, pp. 95-96). In the United States specifically, most of 
the recent occurrences of jaguars (after 1996) would not have been 
known but for a substantial amount of time and effort being invested by 
the Borderlands Jaguar Detection Project (BJDP) (Johnson et al. 2011, 
p. 40). From 1997 to 2010, the BJDP maintained 45-50 remote-camera 
stations across three counties in Arizona, conducted track and scat 
(feces) surveys opportunistically, and followed up on credible sighting 
reports from other individuals, resulting in 105 jaguar locations 
representing two adult male jaguars and possibly a third of unknown sex 
(Johnson et al. 2011, p. 40). From the time the jaguar was listed in 
1972 until 1997, no effort was made to detect jaguars in the United 
States, and so we cannot be sure that a lack of detection indicates the 
species was absent.
    Based on the above information, we determine that areas in which 
jaguars have been documented from 1982 to the present may have been 
occupied at the time of the original listing (March 30, 1972; 37 FR 
6476) because: (1) Jaguars were rare on the landscape and distributed 
over large, rugged areas, meaning they were difficult to detect; (2) 
jaguars are cryptic and nocturnal by nature, making them difficult to 
detect; and (3) no survey effort was made to detect them in 1972, 
meaning we cannot be sure that a lack of detection indicates the 
species was absent. Therefore, based on the best available information 
related to jaguar rarity, biology, and survey effort, we determine that 
areas containing undisputed Class I records from 1982 to the present 
may have been occupied by jaguars at the time of listing.
    However, to the extent that uncertainty exists regarding our 
analysis of these data, we acknowledge there is an alternative 
explanation as to whether or not these areas were occupied at the time 
the jaguar was listed in 1972 (37 FR 6476). The lack of jaguar 
sightings at that time, as well as some expert opinions cited in our 
July 22, 1997, clarifying rule (62 FR 39147) (for example, Swank and 
Teer 1989), suggest that jaguars in the United States had declined to 
such an extent by that point as to be effectively eliminated. 
Therefore, there is an argument to be made that no areas in the United 
States were occupied by the species at the time it was listed, or that 
only areas containing undisputed Class I records from between 1962 and 
1982 (see ``Jaguar Sightings in the United States Since 1962,'' below) 
were occupied.
    For this reason, we also analyzed whether or not these areas are 
essential to the conservation of the species. Through our analysis, we 
determine that they are essential to the conservation of the species 
for the following reasons: (1) They have demonstrated recent (since 
1996) occupancy by jaguars; (2) they contain features that comprise 
suitable jaguar habitat; and (3) they contribute to the species' 
persistence in the United States by allowing the normal demographic 
function and possible range expansion of the Northwestern Recovery 
Unit, which is essential to the conservation of the species (as 
discussed in the Jaguar Recovery Planning in Relation to Critical 
Habitat section, above). Therefore, we include them in the proposed 
critical habitat designation.
Jaguar Sightings in the United States Since 1962
    We are only considering undisputed Class I reports as valid records 
of jaguar locations. Class I reports are those for which some sort of 
physical evidence is provided for verification (such as a skin, skull, 
or photograph); they are considered ``verified'' or ``highly probable'' 
as evidence for a jaguar occurrence. Class II records have detailed 
information of the observation provided but do not include any physical 
evidence of a jaguar. Class II observations are considered ``probable'' 
or ``possible'' as evidence for a jaguar occurrence. This 
classification protocol was developed by adapting criteria published by 
Tewes and Everett (1986, entire), based on work in Texas with 
jaguarundis and ocelots (Leopardus pardalis). The Arizona-New Mexico 
Jaguar Conservation Team (for a

[[Page 50227]]

description and history of this team, see Johnson et al. 2011, pp. 37-
40) reviewed and endorsed the protocol in 1998, for use in evaluating 
jaguar occurrence reports for Arizona and New Mexico. Therefore, we are 
using the same criteria to evaluate jaguar occurrence reports in the 
United States, and consider undisputed Class I records as the best 
available information.
    Recently (1996 through 2011), five, possibly six, transient male 
jaguars have been documented in the United States. Two of these six 
male jaguars were photographed in 1996 in the United States: One on 
March 7, 1996, in the Peloncillo Mountains, located along the Arizona-
New Mexico border (Glenn 1996, entire; Brown and L[oacute]pez 
Gonz[aacute]lez 2001, p. 6), and another on August 31, 1996, in the 
Baboquivari Mountains in southern Arizona (Brown and L[oacute]pez 
Gonz[aacute]lez 2001, p. 6; McCain and Childs 2008, p. 2). In February 
2006, a jaguar was observed and photographed on the northern end of San 
Luis Mountains of southwestern New Mexico, very close to the U.S.-
Mexico border (McCain and Childs 2008, p. 2; Arizona Game and Fish 
Department 2011a, p. 2). Using remote cameras, jaguars were 
photographed in the Pajarito, Atascosa, Tumacacori, Baboquivari, and 
Coyote Mountains near the Arizona-Mexico border from 2001 through 2009 
(McCain and Childs 2008, entire; Arizona Game and Fish Department 
2011a, pp. 1-3). The most recently confirmed jaguar sighting occurred 
on November 19, 2011, where a jaguar was observed and photographed in 
the Whetstone Mountains in southern Arizona (Arizona Game and Fish 
Department 2011b, p. 1; and unpublished data).
    Other jaguars documented in the United States since 1962 include 
the following: (1) A photograph of a jaguar track taken on April 19, 
1995, in the Peloncillo Mountains near the Arizona-New Mexico border; 
(2) a male jaguar killed after being tracked by dogs on December 15, 
1986, in the Dos Cabezas Mountains in southeastern Arizona; (3) a male 
jaguar killed by boys duck hunting along the Santa Cruz River on 
October 16, 1971, south of Highway 82 and north of Nogales, Arizona; 
and (4) a male jaguar killed during a deer hunt on November 16, 1965, 
in the Patagonia Mountains in southern Arizona (Brown and L[oacute]pez 
Gonz[aacute]lez 2001, pp. 6-7; Arizona Game and Fish Department 2011a, 
pp. 3-4).
    There are three jaguar records from 1962 forward that we are not 
considering in our analysis. One of these is a female shot on September 
28, 1963, in the White Mountains of east-central Arizona, and another 
is a male trapped on January 16, 1964, near the Black River in east-
central Arizona. As described in Johnson et al. (2011, p. 9), as well 
as from information provided during the public comment period on our 
January 13, 2010, prudency determination (75 FR 1741), the validity of 
these locations is questionable because of the suspicion that these 
animals were released for ``canned hunts'' (hunts involving release of 
captive animals). Therefore, we are not including them as undisputed 
Class I records. The third exception is a recent sighting of a jaguar 
in the Santa Rita Mountains by a border patrol agent in a helicopter 
during the summer of 2011. Because the Coronado National Forest was 
closed to public entry at that time due to an extremely volatile fire 
season, this location could not be verified, and therefore it is not 
considered a Class I record.
    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. We review 
available information pertaining to the habitat requirements of the 
species. In accordance with the Act and its implementing regulations at 
50 CFR 424.12(e), the Secretary shall designate as critical habitat 
areas outside the geographical area presently occupied by a species 
only when a designation limited to its present range would be 
inadequate to ensure the conservation of the species. We are proposing 
to designate critical habitat for the jaguar within the geographical 
area occupied by the species 10 years prior to the time of listing in 
1972. We also are proposing to designate specific areas outside the 
geographical area occupied by the species at the time of listing that 
provide connectivity to Mexico, or to another occupied area that 
provides connectivity to Mexico (see ``Areas Essential for the 
Conservation of Jaguars Outside of Occupied Areas,'' below), because 
such areas are essential for the conservation of the species.
    Consequently, we are defining areas occupied by jaguars 10 years 
prior to the time of its listing as rugged mountain ranges in 
southeastern Arizona and extreme southwestern New Mexico: (1) In which 
an undisputed Class I record has been documented, and (2) that 
currently contain the physical or biological features described above 
(see below for the steps we followed to delineate critical habitat 
boundaries). Therefore, occupied areas include the Baboquivari, 
Quinlan, Coyote, Pajarito, Atascosa, Tumacacori, Patagonia, Canelo 
Hills, Huachuca, Santa Rita, Whetstone, and Peloncillo Mountains of 
Arizona, and the Peloncillo and San Luis Mountains of New Mexico.
    All undisputed Class I records of jaguars documented in the United 
States since 1962 have been within the aforementioned mountain ranges, 
with the following two exceptions. We are not including the Dos Cabezas 
Mountains in Arizona (one male jaguar killed in 1986) as occupied 
because, while this mountain range contains some of the primary 
constituent elements of the physical or biological feature required for 
critical habitat, by itself it is not of an adequate size to meet the 
expansive open spaces primary constituent element. Additionally, the 
1971 record of a male jaguar killed by hunters was along the Santa Cruz 
River, not within a mountain range. As described above under ``Space 
for Individual and Population Growth and for Normal Behavior,'' this is 
the only record found in a valley bottom since the species was listed, 
and likely represents a jaguar moving between areas of higher quality 
habitat found in the surrounding isolated mountain ranges. Therefore, 
because we are unable to describe or delineate the features of areas 
connecting mountain ranges in the United States due to a lack of 
information, this record does not fall within or near the physical or 
biological features described above.
Areas Essential for the Conservation of Jaguars
    As described in the ``Occupied Area at the Time of Listing'' 
section, above, we acknowledge that the lack of jaguar sightings at the 
time the species was listed as endangered in 1972 (37 FR 6476), as well 
as some expert opinions cited in our July 22, 1997, clarifying rule (62 
FR 39147) (for example, Swank and Teer 1989), suggest that jaguars in 
the United States had declined to such an extent by that point as to be 
effectively eliminated. Only two undisputed Class I records (described 
above) exist for jaguars between 1962 and 1982, both of which were 
males killed by hunters. To the extent that areas described above may 
not have been occupied at the time of listing, we determine that they 
are essential to the conservation of the species for the following 
reasons: (1) They have demonstrated recent (since 1996) occupancy by 
jaguars; (2) they contain features that comprise suitable jaguar 
habitat; and (3) they contribute to the species' persistence in the 
United States by allowing the normal demographic function and possible 
range expansion of the Northwestern Recovery Unit, which is essential 
to the conservation of the species (as discussed in the Jaguar Recovery 
Planning in Relation to Critical Habitat section, above). Therefore, we 
include

[[Page 50228]]

them in the proposed critical habitat designation.
    Additionally, as discussed in the Jaguar Recovery Planning in 
Relation to Critical Habitat and ``Space for Individual and Population 
Growth and for Normal Behavior'' sections, above, connectivity to 
Mexico is essential for the conservation of jaguars. Jaguars in the 
United States are understood to be individuals dispersing from the 
nearest core population in Mexico, which includes areas in central 
Sonora, southwestern Chihuahua, and northeastern Sinaloa (Jaguar 
Recovery Team 2012, p. 21). The closest known breeding population 
occurs about 210 km (130 mi) south of the U.S.-Mexico border in Sonora 
near the towns of Huasabas, Sahuaripa (Brown and L[oacute]pez 
Gonz[aacute]lez 2001, pp. 108-109), and Nacori Chico (Rosas-Rosas and 
Bender 2012, pp. 88-89). In several of our Federal Register documents 
pertaining to the jaguar, including the notice in which we determined 
that designating critical habitat was prudent (75 FR 1741, p. 1743), we 
discussed the need to develop and maintain travel corridors for jaguars 
between the United States and Mexico to enable a few, possibly resident 
individuals to persist north of the international border. Therefore, we 
conclude that maintaining travel corridors to Mexico is essential for 
the conservation of jaguars in the Northwestern Recovery Unit, and 
therefore for the species as a whole.
    As we discussed under ``Space for Individual and Population Growth 
and for Normal Behavior,'' above, describing these areas of 
connectivity within the United States is difficult because of a lack of 
information about what these features encompass. However, in some areas 
there may be a level of connectivity to Mexico that could be provided 
because these areas contain some, but not all, of the PCEs described 
above. In the jaguar habitat model developed for northwestern Mexico 
and the U.S.-Mexico borderlands area, Sanderson and Fisher (2011, p. 
11) described how low human influence is perhaps the most important 
feature defining jaguar habitat, as jaguars most often avoid areas with 
too much human pressure. Furthermore, their model describes a level of 
uncertainty regarding jaguar use of areas with moderate tree cover (in 
their model, this is from 3 to 60 percent) and intermediate to high 
ruggedness, as jaguars could potentially be found in areas meeting only 
one of these habitat qualities. Therefore, we have determined the most 
likely areas providing connectivity from occupied areas in the United 
States to Mexico are those in which the human influence is low, and 
either or both moderate tree cover or intermediately to highly rugged 
terrain is present.
    Consequently, we are further defining areas essential for the 
conservation of jaguars outside of occupied areas as those areas that: 
(1) Connect an area that may have been occupied that is isolated within 
the United States to Mexico, either through a direct connection to the 
international border or through another area that may have been 
occupied; and (2) contain low human influence and impact, and either 
vegetative cover or rugged terrain. Based on these criteria, we 
identified three subunits outside of occupied areas that are essential 
for the conservation of jaguars in the United States because they 
provide connectivity to Mexico. They include the southern extent of the 
Baboquivari Mountains, an east-west connection area between the Santa 
Rita Mountains and northwestern extent of the Whetstone Mountains 
(including the Empire Mountains), and a north-south connection area 
between the southern extent of the Whetstone Mountains and the Huachuca 
Mountains (including the Mustang Mountains).
    Therefore, we delineated critical habitat boundaries using the 
following steps:
    (1) We mapped areas containing PCEs 3, 4, 5, and 6 as determined 
from GIS data on water availability, vegetation community, tree cover, 
ruggedness, and human influence. We did not use data describing 
distribution of native prey, as wildlife management agencies in Arizona 
and New Mexico have a history of effective game management strategies 
resulting in prey species' persistence within occupied areas (for State 
philosophies of game management, see Arizona Game and Fish Department 
2011c, p. 6 and New Mexico Department of Game and Fish 2007, p. 4; for 
survey information and hunter success rates in Arizona, see Arizona 
Game and Fish Department 2011d, pp. 10, 15-40, 98-116). Areas (also 
called polygons) that were adjacent to each other (for example, 
touching at corners) were merged into one polygon. We then selected 
polygons containing an undisputed Class I record of a jaguar from 1962 
forward. We also selected polygons that fell partially or entirely 
within 1-km (0.4-mi) of these polygons because most of the GIS datasets 
we used were of a 1-square-km (0.4-square-mi) resolution (pixel size), 
and therefore we determined that this was the distance within which 
some mapping error may have occurred. If the area within the selected 
polygons surrounding a jaguar record did not meet the minimum size 
criterion of 84 square km (32 square mi) when added together, we 
removed those polygons from further consideration.
    We placed a 1-km (0.4-mi) buffer around the remaining polygons to 
account for mapping error, but did not apply this buffer to areas in 
which the vegetation community was other than Madrean evergreen 
woodland or semidesert grassland, or areas in which the Human Influence 
Index (HII) was greater than 20 (see ``Habitats Protected from 
Disturbance or Representative of the Historical, Geographic, and 
Ecological Distributions of the Species,'' above). The vegetation 
community data we used were not mapped at a 1-square-km (0.4-square-mi) 
resolution, and therefore we determined the 1-km (0.4-mi) buffer did 
not apply to this dataset. Our rationale for ensuring only areas in 
which the HII was 20 or less (as described in the ``Habitats Protected 
from Disturbance or Representative of the Historical, Geographic, and 
Ecological Distributions of the Species'' section, above) were included 
in the proposed designation was based on Sanderson and Fisher (2011, p. 
11), in which they described low human influence as being essential to 
the jaguar; we therefore did not include any areas in which this PCE 
was absent because of its importance in describing jaguar habitat. 
Small areas of 1 square km (0.4 square mi) or less (our tolerance 
buffer as described above) that were excluded within the polygons were 
then included, as these areas were of a size in which a mapping error 
could have occurred.
    (2) If a polygon described in step 1, above, was not connected to 
Mexico, we selected and added areas containing low human influence and 
impact and either or both vegetative cover or rugged terrain to connect 
these areas directly to Mexico or to another occupied area.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
the physical or biological feature necessary for jaguars. The scale of 
the maps we prepared under the parameters for publication within the 
Code of Federal Regulations may not reflect the exclusion of such 
developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands

[[Page 50229]]

would not trigger section 7 consultation with respect to critical 
habitat and the requirement of no adverse modification unless the 
specific action would affect the physical or biological feature in the 
adjacent critical habitat.
    Based on our analyses of areas as both occupied and unoccupied (but 
essential for the conservation of the species), we are proposing for 
designation of critical habitat lands that we have determined were 
occupied at the time of listing and contain sufficient elements of the 
physical or biological feature to support life-history processes 
essential for the conservation of the species, and lands outside of the 
geographical area occupied at the time of listing that we have 
determined are essential. In our analysis we also evaluated the areas 
we proposed as occupied at the time of listing and determine that these 
same areas are also essential for the conservation of jaguars in the 
Northwestern Recovery Unit, and therefore for the species as a whole.
    In summary, while we understand there may be alternative 
explanations as to whether or not areas were occupied at the time the 
jaguar was listed, we are required to make an administrative decision 
regarding occupancy status for purposes of delineating critical habitat 
units and applying the policy as described in the Act. Based on our 
analyses as discussed under the Criteria Used To Identify Critical 
Habitat section, above, it is our determination that the lands 
described under ``Occupied Area at the Time of Listing'' were occupied 
at the time of listing, and thus are described in the unit 
descriptions, below, as being occupied. However, these same areas are 
also considered essential, based on our analysis, above. In addition, 
we are proposing unoccupied lands outside of the geographical area 
occupied at the time of listing because those lands provide 
connectivity to Mexico, making them essential for the conservation of 
the jaguar.
    Therefore, six units are proposed for designation based on 
sufficient elements of physical or biological feature being present to 
support jaguar life-history processes. The occupied mountain ranges 
within the units contain all of the identified elements of the physical 
or biological feature necessary for jaguars. The unoccupied areas 
denoted as Subunits 1b, 4b, and 4c are essential for the conservation 
of the species, as they provide the jaguar connectivity with Mexico and 
the Northwestern Recovery Unit.

Proposed Critical Habitat Designation

    We are proposing six units as critical habitat for the jaguar. The 
critical habitat areas we describe below constitute our current best 
assessment of areas that meet the definition of critical habitat for 
the jaguar. The six units we propose as critical habitat are: (1) 
Baboquivari Unit divided into subunits (1a) Baboquivari-Coyote Subunit, 
including the Northern Baboquivari, Saucito, Quinlan, and Coyote 
Mountains, and (1b) the Southern Baboquivari Subunit; (2) Atascosa 
Unit, including the Pajarito, Atascosa, and Tumacacori Mountains; (3) 
Patagonia Unit, including the Patagonia, Santa Rita, and Huachuca 
Mountains and the Canelo Hills; (4) Whetstone Unit, divided into 
subunits (4a) Whetstone Subunit, (4b) Whetstone-Santa Rita Subunit, and 
(4c) Whetstone-Huachuca Subunit; (5) Peloncillo Unit, including the 
Peloncillo Mountains both in Arizona and New Mexico; and (6) San Luis 
Unit, including the northern extent of the San Luis Mountains at the 
New Mexico-Mexico border. Table 1 lists both the occupied and 
unoccupied units.

    Table 1--Occupancy of Jaguars by Proposed Critical Habitat Units
            [All units are in Arizona unless otherwise noted]
------------------------------------------------------------------------
                    Unit                     Occupied at time of listing
------------------------------------------------------------------------
             1 Baboquivari Unit
1a Baboquivari-Coyote Subunit:
  Coyote Mountains.........................  Yes.
  Quinlan Mountains........................  Yes.
  Saucito Mountains........................  Yes.
  Northern Baboquivari Mountains...........  Yes.
1b Southern Baboquivari Subunit:
  Southern Baboquivari Mountains Connection  No.
------------------------------------------------------------------------
              2 Atascosa Unit
Tumacacori Mountains.......................  Yes.
Atascosa Mountains.........................  Yes.
Pajarito Mountains.........................  Yes.
              3 Patagonia Unit
Santa Rita Mountains.......................  Yes.
Patagonia Mountains........................  Yes.
Canelo Hills...............................  Yes.
Huachuca Mountains.........................  Yes.
              4 Whetstone Unit
4a Whetstone Subunit:
  Whetstone Mountains......................  Yes.
4b Whetstone-Santa Rita Subunit:
  Whetstone-Santa Rita Mountains Connection  No.
4c Whetstone-Huachuca Subunit:
  Whetstone-Huachuca Mountains Connection..  No.
             5 Peloncillo Unit
Peloncillo Mountains (Arizona and New        Yes.
 Mexico).
              6 San Luis Unit
San Luis Mountains (New Mexico)............  Yes.
------------------------------------------------------------------------

    The approximate area of each proposed critical habitat unit is 
shown in Table 2.

                                             Table 2--Area of Proposed Critical Habitat Units for the Jaguar
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Federal               State             Tribal             Private             Other         Total      Total
         Unit or subunit         -----------------------------------------------------------------------------------------------------------------------
                                      Ha         Ac        Ha        Ac        Ha       Ac       Ha        Ac        Ha       Ac        Ha         Ac
--------------------------------------------------------------------------------------------------------------------------------------------------------
1a--Baboquivari-Coyote Subunit..      4,360     10,775    8,483     20,962   20,036   49,511    3,003      7,420        0        0     35,882     88,667
1b--Southern Baboquivari Subunit        644      1,591    7,005     17,310   10,853   26,818    1,857      4,589        0        0     20,359     50,308
2--Atascosa Unit................     53,335    131,793    2,295      5,670        0        0    2,475      6,115        0        0     58,104    143,578
3--Patagonia Unit...............    116,080    286,839    5,618     13,883        0        0   17,115     42,291        8       20    138,821    343,033
4a--Whetstone Subunit...........     16,406     40,541    4,684     11,575        0        0    2,921      7,219        0        0     24,012     59,335
4b--Whetstone-Santa Rita Subunit      1,577      3,897    6,543     16,168        0        0    2,566      6,341        0        0     10,686     26,406
4c--Whetstone-Huachuca Subunit..      1,575      3,892    3,009      7,436        0        0    3,411      8,428        0        0      7,995     19,756
5--Peloncillo Unit..............     27,387     67,673    7,582     18,736        0        0    5,321     13,150        0        0     40,290     99,559
6--San Luis Unit................          0          0        0          0        0        0    3,071      7,590        0        0      3,071      7,590
                                 -----------------------------------------------------------------------------------------------------------------------

[[Page 50230]]

 
    Grand Total.................    221,364    547,000   45,220    111,741   30,889   76,329   41,740    103,143        8       20    339,220    838,232
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for jaguar, below.
Subunit 1a: Baboquivari-Coyote Subunit
    Subunit 1a consists of 35,882 ha (88,667 ac) in the northern 
Baboquivari, Saucito, Quinlan, and Coyote Mountains in Pima County, 
Arizona. This subunit is generally bounded by the Baboquivari Valley to 
the west, State Highway 86 to the north, the Altar Valley to the east, 
and Three Peaks to the south. Land ownership within the unit includes 
approximately 4,360 ha (10,775 ac) of Federal lands; 20,036 ha (49,511 
ac) of Tohono O'odham Nation lands; 8,483 ha (20,962 ac) of Arizona 
State lands; and 3,003 ha (7,420 ac) of private lands. The Federal land 
is administered by the Service and Bureau of Land Management. We 
consider the Baboquivari-Coyote Subunit occupied at the time of listing 
(37 FR 6476; March 30, 1972) based on one photo of a jaguar in 1996, 
and multiple photos of this same jaguar from 2001-2009 (described in 
``Occupied Area at the Time of Listing,'' above), and it may be 
currently occupied. It contains all elements of the physical or 
biological feature essential to the conservation of the jaguar, except 
for connectivity to Mexico.
    The primary land uses within Subunit 1a include ranching, grazing, 
border-related activities, Federal land management activities, and 
recreational activities throughout the year, including, but not limited 
to, hiking, birding, horseback riding, and hunting. Special management 
considerations or protections needed within the unit would need to 
address increased human disturbances in remote locations through 
construction of impermeable fences and widening or construction of 
roadways, power lines, or pipelines to ensure all PCEs remain intact.
Subunit 1b: Southern Baboquivari Subunit
    Subunit 1b consists of 20,359 ha (50,308 ac) in the southern 
Baboquivari Mountains in Pima County, Arizona. This subunit is 
generally bounded by the Baboquivari Valley to the west, Three Peaks to 
the north, the Altar Valley to the east, and the U.S.-Mexico border to 
the south. Land ownership within the unit includes approximately 644 ha 
(1,591 ac) of Federal lands; 10,853 ha (26,818 ac) of Tohono O'odham 
Nation lands; 7,005 ha (17,310 ac) of Arizona State lands; and 1,857 ha 
(4,589 ac) of private lands. The Federal land is administered by the 
Service and Bureau of Land Management. The Southern Baboquivari Subunit 
provides connectivity to Mexico and was not occupied at the time of 
listing, but is essential to the conservation of the jaguar because it 
contributes to the species' persistence by providing connectivity to 
occupied areas that support individuals during dispersal movements 
during cyclical expansion and contraction of the nearest core area and 
breeding population in the Northwestern Recovery Unit.
    The primary land uses within Subunit 1b include ranching, grazing, 
border-related activities, Federal land management activities, and 
recreational activities throughout the year, including, but not limited 
to, hiking, birding, horseback riding, and hunting.
Unit 2: Atascosa Unit
    Unit 2 consists of 58,104 ha (143,578 ac) in the Pajarito, 
Atascosa, and Tumacacori Mountains in Pima and Santa Cruz Counties, 
Arizona. Unit 2 is generally bounded by the San Luis Mountains 
(Arizona) to the west, Arivaca Road to the north, Interstate 19 to the 
east, and the U.S.-Mexico border to the south. Land ownership within 
the unit includes approximately 53,335 ha (131,793 ac) of Federal 
lands; 2,295 ha (5,670 ac) of Arizona State lands; and 2,475 ha (6,115 
ac) of private lands. The Federal land is administered by the Coronado 
National Forest. We consider the Pajarito-Tumacacori Unit occupied at 
the time of listing (37 FR 6476; March 30, 1972) based on multiple 
photos of two, possibly three, jaguars from 2001-2009 (described in 
``Occupied Area at the Time of Listing,'' above), and it may be 
currently occupied. It contains all elements of the physical or 
biological feature essential to the conservation of the jaguar.
    The primary land uses within Unit 2 include Federal forest 
management activities, border-related activities, grazing, and 
recreational activities throughout the year, including, but not limited 
to, hiking, camping, birding, horseback riding, picnicking, 
sightseeing, and hunting. Special management considerations or 
protections needed within the unit would need to address increased 
human disturbances into remote locations through construction of 
impermeable fences and widening or construction of roadways, power 
lines, or pipelines to ensure all PCEs remain intact.
Unit 3: Patagonia Unit
    Unit 3 consists of 138,821 ha (343,033 ac) in the Patagonia, Santa 
Rita, and Huachuca Mountains, as well as the Canelo Hills, in Pima, 
Santa Cruz, and Cochise Counties, Arizona. Unit 3 is generally bounded 
by Interstate 19 to the west; Interstate 10 to the north; Cienega 
Creek, the Mustang Mountains, and Highways 90 and 92 to the east; and 
the U.S.-Mexico border to the south. Land ownership within the unit 
includes approximately 116,080 ha (286,839 ac) of Federal lands; 5,618 
ha (13,883 ac) of Arizona State lands; 17,115 ha (42,291 ac) of private 
lands; and 8 ha (20 ac) of other lands. The Federal land is 
administered by the Coronado National Forest, Bureau of Land 
Management, and Fort Huachuca. We consider the Patagonia Unit occupied 
at the time of listing (37 FR 6476; March 30, 1972) based on the 1965 
record from the Patagonia Mountains (described in ``Occupied Area at 
the Time of Listing,'' above), and it may be currently occupied. The 
mountain ranges within this unit contain all elements of the physical 
or biological feature essential to the conservation of the jaguar.
    The primary land uses within Unit 3 include military activities 
associated with Fort Huachuca, as well as Federal forest management 
activities, border-related activities, grazing, and recreational 
activities throughout the year, including, but not limited to, hiking, 
camping, birding, horseback riding, picnicking, sightseeing, and 
hunting. Special management considerations or protections needed within 
the unit would need to address human disturbances through such 
activities as military ground maneuvers and increased human presence in 
remote locations through mining and development activities, 
construction of impermeable fences, and widening or

[[Page 50231]]

construction of roadways, power lines, or pipelines to ensure all PCEs 
remain intact.
Subunit 4a: Whetstone Subunit
    Subunit 4a consists of 24,012 ha (59,335 ac) in the Whetstone 
Mountains in Pima, Santa Cruz, and Cochise Counties, Arizona. Subunit 
4a is generally bounded by Cienega Creek to the west, Interstate 10 to 
the north, Highway 90 to the east, and Highway 82 to the south. Land 
ownership within the subunit includes approximately 16,406 ha (40,541 
ac) of Federal lands; 4,684 ha (11,575 ac) of Arizona State lands; and 
2,921 ha (7,219 ac) of private lands. The Federal land is administered 
primarily by the Coronado National Forest. We consider the Whetstone 
Subunit occupied at the time of listing (37 FR 6476; March 30, 1972) 
based on photographs taken in 2011 (described in ``Occupied Area at the 
Time of Listing,'' above), and it may be currently occupied. The 
mountain range within this subunit contains all elements of the 
physical or biological feature essential to the conservation of the 
jaguar, except for connectivity to Mexico.
    The primary land uses within Subunit 4a include Federal forest 
management activities, grazing, and recreational activities throughout 
the year, including, but not limited to, hiking, camping, birding, 
horseback riding, picnicking, sightseeing, and hunting. Special 
management considerations or protections needed within the subunit 
would need to address increased human disturbances through development 
activities, and widening or construction of roadways, power lines, or 
pipelines to ensure all PCEs remain intact.
Subunit 4b: Whetstone-Santa Rita Subunit
    Subunit 4b consists of 10,686 ha (26,406 ac) between the Santa Rita 
Mountains and northern extent of the Whetstone Mountains in Pima 
County, Arizona. Subunit 4b is generally bounded by the Santa Rita 
Mountains to the west, Interstate 10 to the north, the Whetstone 
Mountains to the east, and Wood Canyon to the south. Land ownership 
within the subunit includes approximately 1,577 ha (3,897 ac) of 
Federal lands; 6,543 ha (16,168 ac) of Arizona State lands; and 2,566 
ha (6,341 ac) of private lands. The Whetstone-Santa Rita Subunit 
provides connectivity from the Whetstone Mountains to Mexico and was 
not occupied at the time of listing, but is essential to the 
conservation of the jaguar because it contributes to the species' 
persistence by providing connectivity to occupied areas that support 
individuals during dispersal movements during cyclical expansion and 
contraction of the nearest core area and breeding population in the 
Northwestern Recovery Unit.
    The primary land uses within Subunit 4b include grazing and 
recreational activities throughout the year, including, but not limited 
to, hiking, camping, birding, horseback riding, picnicking, 
sightseeing, and hunting.
Subunit 4c: Whetstone-Huachuca Subunit
    Subunit 4c consists of 7,995 ha (19,756 ac) between the Huachuca 
Mountains and southern extent of the Whetstone Mountains in Santa Cruz 
and Cochise Counties, Arizona. Subunit 4c is generally bounded by 
Highway 83 to the west, Highway 82 to the north, Highway 90 to the 
east, and the Huachuca Mountains to the south. Land ownership within 
the subunit includes approximately 1,575 ha (3,892 ac) of Federal 
lands; 3,009 ha (7,436 ac) of Arizona State lands; and 3,411 ha (8,428 
ac) of private lands. The Federal land is administered by the Coronado 
National Forest, Bureau of Land Management, and Fort Huachuca. The 
Whetstone-Huachuca Subunit provides connectivity from the Whetstone 
Mountains to Mexico and was not occupied at the time of listing, but is 
essential to the conservation of the jaguar because it contributes to 
the species' persistence by providing connectivity to occupied areas 
that support individuals during dispersal movements during cyclical 
expansion and contraction of the nearest core area and breeding 
population in the Northwestern Recovery Unit.
    The primary land uses within Subunit 4c include military activities 
associated with Fort Huachuca, as well as Federal forest management 
activities, grazing, and recreational activities throughout the year, 
including, but not limited to, hiking, camping, birding, horseback 
riding, picnicking, sightseeing, and hunting.
Unit 5: Peloncillo Unit
    Unit 5 consists of 40,290 ha (99,559 ac) in the Peloncillo 
Mountains in Cochise County, Arizona, and Hidalgo County, New Mexico. 
Unit 5 is generally bounded by the San Bernardino Valley to the west, 
the San Simone Valley and northern boundary of the Coronado National 
Forest to the north, the Animas Valley to the east, and the U.S.-Mexico 
border on the south. Land ownership within the unit includes 
approximately 27,387 ha (67,673 ac) of Federal lands; 7,582 ha (18,736 
ac) of Arizona State lands; and 5,321 ha (13,150 ac) of private lands. 
The Federal land is administered by the Coronado National Forest and 
Bureau of Land Management. We consider the Peloncillo Unit occupied at 
the time of listing (37 FR 6476; March 30, 1972) based on a track 
documented in 1995 and photographs taken in 1996 (described in 
``Occupied Area at the Time of Listing,'' above), and it may be 
currently occupied. It contains all elements of the physical or 
biological feature essential to the conservation of the jaguar.
    The primary land uses within Unit 5 include Federal forest 
management activities, border-related activities, grazing, and 
recreational activities throughout the year, including, but not limited 
to, hiking, camping, birding, horseback riding, picnicking, 
sightseeing, and hunting. Special management considerations or 
protections needed within the unit would need to address increased 
human disturbances in remote locations through construction of 
impermeable fences and widening or construction of roadways, power 
lines, or pipelines to ensure all PCEs remain intact.
Unit 6: San Luis Unit
    Unit 6 consists of 3,071 ha (7,590 ac) in the northern extent of 
the San Luis Mountains in Hidalgo County, New Mexico. Unit 6 is roughly 
bounded by the Animas Valley to the west, Highway 79 to the north, 
above approximately 1,600 m (5,249 ft) to the east, and the U.S.-Mexico 
border to the south. Land ownership within the unit is entirely private 
land. We consider the San Luis Unit occupied at the time of listing (37 
FR 6476; March 30, 1972) based on photographs taken in 2006 (described 
in ``Occupied Area at the Time of Listing,'' above), and it may be 
currently occupied. Unit 6 contains almost all elements (PCEs 2-7) of 
the physical or biological features essential to the conservation of 
the jaguar except for PCE 1 (expansive open space). This unit is 
included because, while by itself it does not provide at least 84 
square km (32 square mi) of jaguar habitat in the United States, 
additional habitat can be found immediately adjacent south of the U.S.-
Mexico border, and therefore this area represents a small portion of a 
much larger area of habitat.
    The primary land uses within Unit 6 include border-related 
activities, grazing, and some recreational activities throughout the 
year, including, but not limited to, hiking, horseback riding, and 
hunting. Special management considerations or protections needed within 
the unit would need to address increased human disturbances into remote 
locations through construction

[[Page 50232]]

of impermeable fences and widening or construction of roadways, power 
lines, or pipelines to ensure all PCEs remain intact.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, or 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Determinations of Adverse Effects and Application of the ``Adverse 
Modification'' Standard

    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Section 7(a)(2) of the Act requires Federal agencies to ensure 
their actions do not jeopardize the continued existence of listed 
species or destroy or adversely modify critical habitat. The key factor 
involved in the destruction/adverse modification determination for a 
proposed Federal agency action is whether the affected critical habitat 
would continue to serve its intended conservation role for the species 
with implementation of the proposed action after taking into account 
any anticipated cumulative effects (U.S. Fish and Wildlife Service 
2004, in litt. entire). Activities that may destroy or adversely modify 
critical habitat are those that alter the physical or biological 
features to an extent that appreciably reduces the conservation value 
of critical habitat for the jaguar. As discussed above, the role of 
critical habitat is to support life-history needs of the species and 
provide for the conservation of the species.
    In general, there are five possible outcomes in terms of how 
proposed Federal actions may affect the PCEs or physical or biological 
feature of jaguar critical habitat: (1) No effect; (2) wholly 
beneficial effects (e.g., improve habitat condition); (3) both short-
term adverse effects and long-term beneficial effects; (4) 
insignificant or discountable adverse effects; or (5) wholly adverse 
effects.
    Actions with no effect on the PCEs and physical or biological 
feature of jaguar critical habitat do not require section 7 
consultation, although such actions may still have adverse or 
beneficial effects on the species itself that require consultation. 
Examples of these actions may include grazing, ranching operations, 
routine border security activities, or limited recreational activity, 
which we anticipate would not result in adverse effects or adverse 
modification to jaguar critical habitat, but may still require section 
7 review for effects to the species itself.
    Actions with effects to the PCEs or physical and biological feature 
of jaguar critical habitat that are discountable, insignificant, or 
wholly beneficial are considered as not likely to adversely affect 
critical habitat and do not require formal consultation if the Service

[[Page 50233]]

concurs in writing with that Federal action agency determination. 
Examples of these actions may include fuels-management activities, 
prescribed fire, or closing and re-vegetating roads.
    Additionally, actions with adverse effects to the PCEs or physical 
or biological feature in the short term, but that result over the long 
term in an improvement in the function of the habitat to the jaguar 
would likely not constitute adverse modification of critical habitat. 
We anticipate actions consistent with the stated goals or recovery 
actions of the Recovery Outline for the Jaguar (Jaguar Recovery Team 
2012) or the future recovery plan for the species, once completed, 
would fall into this category.
    Actions that are likely to adversely affect the PCEs or physical or 
biological feature of jaguar critical habitat require formal 
consultation and the preparation of a Biological Opinion by the 
Service. The Biological Opinion sets forth the basis for our section 
7(a)(2) determination as to whether the proposed Federal action is 
likely to destroy or adversely modify jaguar critical habitat. Some 
activities may adversely affect the PCEs, but not result in adverse 
modification of critical habitat. Activities that may destroy or 
adversely modify critical habitat are those that alter the essential 
physical or biological features of the critical habitat to an extent 
that appreciably reduces the conservation value of the critical habitat 
for the listed species. As discussed above, the conservation role or 
value of jaguar critical habitat is to provide areas to support some 
individuals during transient movements by providing patches of habitat 
(perhaps in some cases with a few resident jaguars), and as areas for 
cyclic expansion and contraction of the nearest core area and breeding 
population in the Northwestern Recovery Unit. Therefore, actions that 
could destroy or adversely modify jaguar critical habitat include those 
that would permanently sever connectivity to Mexico or within a 
critical habitat unit such that movement of jaguars between habitat in 
the United States and Mexico is eliminated. In general, such activities 
could include building impermeable fences (such as pedestrian fences 
discussed in Special Management Considerations or Protection, above) in 
areas of vegetated rugged terrain, or major road construction projects 
(such as new highways or significant widening of existing highways). 
Activities that may adversely affect the PCEs (such as permanently 
displacing native prey species, increasing the distance to water to 
more than 10 km (6.2 mi), removing tree cover, altering rugged terrain, 
or appreciably increasing human presence on the landscape), but may not 
destroy or adversely modify critical habitat could include habitat 
clearing, the construction of facilities, or expansion of linear 
projects (such as power lines or pipelines) that reduce the amount of 
habitat available but that do not permanently sever essential movement 
between the United States and Mexico or within a given critical habitat 
unit.
    At this time, we do not anticipate activities such as grazing, 
ranching operations, or limited recreational activity would have 
adverse effects to jaguar critical habitat, nor do we anticipate 
activities consistent with the stated goals or recovery actions of the 
Recovery Outline for the Jaguar (Jaguar Recovery Team 2012) or the 
future recovery plan for the species would constitute adverse 
modification. We also do not anticipate further impermeable fencing 
being built in areas with rugged terrain, as technological solutions 
(such as video surveillance) for Homeland Security purposes are more 
likely to be applied in these areas. We also are unaware of any plans 
to expand highways through proposed jaguar critical habitat. However, 
we are aware of one large-scale mining operation (Rosemont Mine) that 
is being evaluated within jaguar proposed critical habitat. We will 
need to evaluate this project in the context of connectivity to Mexico 
to determine if adverse modification to jaguar critical habitat will 
likely result from this action.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographic areas owned 
or controlled by the Department of Defense, or designated for its use, 
that are subject to an integrated natural resources management plan 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such plan provides a benefit to 
the species for which critical habitat is proposed for designation.''
    There are no Department of Defense lands with a completed INRMP 
that specifically includes the jaguar within the proposed critical 
habitat designation. Fort Huachuca has a completed INRMP that addresses 
other endangered and threatened species, but currently it does not 
include management actions specific to the jaguar or its habitat. For 
this reason, we are not currently considering Fort Huachuca lands as 
exempt from jaguar critical habitat designation. However, should Fort 
Huachcua's INRMP be amended to include the jaguar before the final 
critical habitat rule is completed, or should we receive information 
demonstrating the INRMP provides benefits to the jaguar through 
measures designed for other species (for example, the Mexican spotted 
owl), we would consider exempting lands owned and managed by the Fort 
in the final rule.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific

[[Page 50234]]

data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the statute on its face, as well as the legislative 
history, are clear that the Secretary has broad discretion regarding 
which factor(s) to use and how much weight to give to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we identify 
the benefits of including the area in the designation, identify the 
benefits of excluding the area from the designation, and evaluate 
whether the benefits of exclusion outweigh the benefits of inclusion. 
If the analysis indicates that the benefits of exclusion outweigh the 
benefits of inclusion, the Secretary may exercise his discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors. The proposed critical habitat areas include Federal, State, 
tribal, and private lands, some of which are used for mining and 
recreation (such as hiking, camping, horseback riding, and hunting). 
Other land uses that may be affected will be identified as we develop 
the draft economic analysis for the proposed designation.
    We will announce the availability of the draft economic analysis as 
soon as it is completed, at which time we will seek public review and 
comment. At that time, copies of the draft economic analysis will be 
available for downloading from the Internet at http://www.regulations.gov, or by contacting the Arizona Ecological Services 
Fish and Wildlife Office directly (see FOR FURTHER INFORMATION 
CONTACT). During the development of a final designation, we will 
consider economic impacts, public comments, and other new information, 
and areas may be excluded from the final critical habitat designation 
under section 4(b)(2) of the Act and our implementing regulations at 50 
CFR 424.19.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. Department of Defense lands eligible for 
exclusion include Fort Huachuca, as discussed above in Application of 
Section 4(a)(3) of the Act and lands on which the U.S. Customs and 
Border Protection (CBP) operates along the U.S.-Mexico border. CBP is 
tasked with maintaining national security interests along the nation's 
international borders. As such, the CBP's activities may qualify for 
exclusions under section 4(b)(2) of the Act. In order to achieve and 
maintain effective control of the United States border, CBP, through 
its component, the United States Border Patrol (USBP), requires 
continuing and regular access to certain portions of the area proposed 
for designation as critical habitat. Because CBP's border security 
mission has an important link to national security, CBP may identify 
impacts to national security that may result from designating critical 
habitat. While we do not have information currently indicating that the 
lands owned or managed by the Department of Defense and the remaining 
lands within the proposed designation of critical habitat for the 
jaguar will have an impact on national security, we may consider 
excluding certain lands in the final rule. Consequently, the Secretary 
does not propose to exert his discretion to exclude any areas from the 
final designation based on impacts on national security at this time. 
However, should Fort Huachuca or another entity identify impacts to 
national security that may result from designating critical habitat on 
lands owned and managed by the Fort, or on the remaining lands within 
the critical habitat footprint, we may consider excluding those lands 
in the final rule.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
    We are not considering any areas for exclusion at this time from 
the final designation under section 4(b)(2) of the Act based on 
partnerships, management, or protection afforded by cooperative 
management efforts. Some areas within the proposed designation are 
included in management plans or other large-scale HCPs such as the 
Malpai Habitat Conservation Plan and lands managed by the Tohono 
O'odham Nation. In this proposed rule, we are seeking input from the 
public as to whether or not the Secretary should exclude HCP areas or 
other such areas under management that benefit the jaguar from the 
final revised critical habitat designation. (Please see the Public 
Comments section of this proposed rule for instructions on how to 
submit comments.)

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We have invited these peer reviewers 
to comment during this public comment period on our specific 
assumptions and conclusions in this proposed designation of critical 
habitat.
    We will consider all comments and information received during this 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the address shown in the FOR 
FURTHER INFORMATION CONTACT section. We will schedule public hearings 
on this proposal, if any are requested, and announce the dates, times, 
and places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory

[[Page 50235]]

Affairs (OIRA) will review all significant rules. The Office of 
Information and Regulatory Affairs has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include such businesses as manufacturing and mining concerns with fewer 
than 500 employees, wholesale trade entities with fewer than 100 
employees, retail and service businesses with less than $5 million in 
annual sales, general and heavy construction businesses with less than 
$27.5 million in annual business, special trade contractors doing less 
than $11.5 million in annual business, and forestry and logging 
operations with fewer than 500 employees and annual business less than 
$7 million. To determine whether small entities may be affected, we 
will consider the types of activities that might trigger regulatory 
impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    Importantly, the incremental impacts of a rule must be both 
significant and substantial to prevent certification of the rule under 
the RFA and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify. 
Likewise, if the per-entity economic impact is likely to be 
significant, but the number of affected entities is not substantial, 
the Service may also certify.
    Under the RFA, as amended, and following recent court decisions, 
Federal agencies are only required to evaluate the potential 
incremental impacts of rulemaking on those entities directly regulated 
by the rulemaking itself, and not the potential impacts to indirectly 
affected entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action they authorize, fund, or carry out is not likely to 
adversely modify critical habitat. Therefore, only Federal action 
agencies are directly subject to the specific regulatory requirement 
(avoiding destruction and adverse modification) imposed by critical 
habitat designation. Under these circumstances, it is our position that 
only Federal action agencies will be directly regulated by this 
designation. Therefore, because Federal agencies are not small 
entities, the Service may certify that the proposed critical habitat 
rule will not have a significant economic impact on a substantial 
number of small entities.
    We acknowledge, however, that in some cases, third-party proponents 
of the action subject to permitting or funding may participate in a 
section 7 consultation, and thus may be indirectly affected. We believe 
it is good policy to assess these impacts if we have sufficient data 
before us to complete the necessary analysis, whether or not this 
analysis is strictly required by the RFA. While this rule would not 
directly regulate these entities, in our draft economic analysis we 
will conduct a brief evaluation of the potential number of third 
parties participating in consultations on an annual basis in order to 
ensure a more complete examination of the incremental effects of this 
proposed rule in the context of the RFA.
    In conclusion, we believe that, based on our interpretation of 
directly regulated entities under the RFA and relevant case law, this 
designation of critical habitat would only directly regulate Federal 
agencies, which are not by definition small business entities. As such, 
we certify that, if promulgated, this designation of critical habitat 
would not have a significant economic impact on a substantial number of 
small business entities. Therefore, an initial regulatory flexibility 
analysis is not required. However, though not necessarily required by 
the RFA, in our draft economic analysis for this proposal we will 
consider and evaluate the potential effects to third parties that may 
be involved with consultations with Federal action agencies related to 
this action.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. Because there are no energy facilities within the 
footprint of the proposed critical habitat boundaries, and we are 
unaware of energy projects currently proposed within the boundaries, we 
do not expect the designation of this proposed critical habitat to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required. However, we will further evaluate this 
issue as we conduct our economic analysis, and review and revise this 
assessment as warranted.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector,

[[Page 50236]]

and includes both ``Federal intergovernmental mandates'' and ``Federal 
private sector mandates.'' These terms are defined in 2 U.S.C. 658(5)-
(7). ``Federal intergovernmental mandate'' includes a regulation that 
``would impose an enforceable duty upon State, local, or tribal 
governments'' with two exceptions. It excludes ``a condition of Federal 
assistance.'' It also excludes ``a duty arising from participation in a 
voluntary Federal program,'' unless the regulation ``relates to a then-
existing Federal program under which $500,000,000 or more is provided 
annually to State, local, and tribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding,'' and the 
State, local, or tribal governments ``lack authority'' to adjust 
accordingly. At the time of enactment, these entitlement programs were: 
Medicaid; Aid to Families with Dependent Children work programs; Child 
Nutrition; Food Stamps; Social Services Block Grants; Vocational 
Rehabilitation State Grants; Foster Care, Adoption Assistance, and 
Independent Living; Family Support Welfare Services; and Child Support 
Enforcement. ``Federal private sector mandate'' includes a regulation 
that ``would impose an enforceable duty upon the private sector, except 
(i) a condition of Federal assistance or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments. The lands we are proposing for 
critical habitat designation are predominantly owned by the U.S. Forest 
Service, Bureau of Land Management, and State of Arizona. None of these 
government entities fit the definition of ``small governmental 
jurisdiction.'' Therefore, a Small Government Agency Plan is not 
required. However, we will further evaluate this issue as we conduct 
our economic analysis, and review and revise this assessment if 
appropriate.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), this rule is not anticipated to have significant takings 
implications. As discussed above, the designation of critical habitat 
affects only Federal actions. Critical habitat designation does not 
affect landowner actions that do not require Federal funding or 
permits, nor does it preclude development of habitat conservation 
programs or issuance of incidental take permits to permit actions that 
do require Federal funding or permits to go forward. Due to current 
public knowledge of the species' protections and the prohibition 
against take of the species both within and outside of the proposed 
areas, we do not anticipate that property values would be affected by 
the critical habitat designation. However, we have not yet completed 
the economic analysis for this proposed rule. Once the economic 
analysis is available, we will review and revise this preliminary 
assessment as warranted, and prepare a takings implication assessment.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
Federalism summary impact statement is not required. In keeping with 
Department of the Interior and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
proposed critical habitat designation with appropriate State resource 
agencies in Arizona and New Mexico. The designation of critical habitat 
in areas currently occupied by the jaguar may impose nominal additional 
regulatory restrictions to those currently in place and, therefore, may 
have little incremental impact on State and local governments and their 
activities. The designation may have some benefit to these governments 
because the areas that contain the physical or biological features 
essential to the conservation of the species are more clearly defined, 
and the elements of the features necessary to the conservation of the 
species are specifically identified. This information does not alter 
where and what federally sponsored activities may occur. However, it 
may assist local governments in long-range planning (rather than having 
them wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. This 
proposed rule uses standard property descriptions and identifies the 
elements of physical or biological features essential to the 
conservation of the jaguar within the designated areas to assist the 
public in understanding the habitat needs of the species.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to

[[Page 50237]]

prepare environmental analyses pursuant to the National Environmental 
Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with 
designating critical habitat under the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This position was upheld by the U.S. 
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, 
when the range of the species includes States within the Tenth Circuit, 
such as that of jaguar, under the Tenth Circuit ruling in Catron County 
Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 
(10th Cir. 1996), we will undertake a NEPA analysis for critical 
habitat designation and notify the public of the availability of the 
draft environmental assessment for this proposal when it is finished.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    There are tribal lands in Arizona included in this proposed 
designation of critical habitat. Using the criteria found in the 
Criteria Used To Identify Critical Habitat section, we have determined 
that there are tribal lands that were occupied by jaguar at the time of 
listing that contain the features essential for the conservation of the 
species, as well as tribal lands unoccupied by the species at the time 
of listing that are essential for the conservation of the jaguar in the 
United States. We will seek government-to-government consultation with 
these tribes throughout the public comment period and during 
development of the final designation of jaguar critical habitat. We 
will consider these areas for exclusion from the final critical habitat 
designation to the extent consistent with the requirements of 4(b)(2) 
of the Act. The Tohono O'odham Nation (TON) is the main tribe affected 
by this proposed rule. We recently sent a notification letter to the 
TON describing the exclusion process under section 4(b)(2) of the Act, 
and we have engaged in conversations with the TON about the proposal to 
the extent possible without disclosing pre-decisional information. In 
addition, the TON has a representative on the Jaguar Recovery Team and 
so the tribe has been aware that the Service was working on a critical 
habitat proposal. We will schedule a meeting with the TON and any other 
interested tribes shortly after publication of this proposed rule so 
that we can give them as much time as possible to comment. We will also 
send letters to all other tribes with interest in the general 
geographic area of the jaguar's range, including the following: Gila 
River Indian Community; Salt River-Maricopa Indian Community; Ak Chin 
Indian Community; San Carlos Apache Nation; Hopi Tribe; Pascua Yaqui 
Tribe; Mescalero Apache Tribe; and Yavapai-Apache Nation.

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at http://www.regulations.gov and upon request from the 
Arizona Ecological Services Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this package are the staff members of the 
Arizona Ecological Services Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

    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. Amend Sec.  17.11(h) 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 50238]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        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,   Entire..............  E                  5, 622     17.95(a)           NA
                                                          NM, TX) Mexico,
                                                          Central and South
                                                          America.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

     3. In Sec.  17.95, amend paragraph (a) by adding an entry for 
``Jaguar (Panthera onca),'' in the same alphabetical order that the 
species appears in the table at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (a) Mammals.
* * * * *

Jaguar (Panthera onca)

    (1) Critical habitat units are depicted for Pima, Santa Cruz, and 
Cochise Counties, Arizona, and Hidalgo County, New Mexico, on the maps 
below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological feature essential to the conservation of jaguar 
consists of expansive open spaces in the southwestern United States of 
at least 84 to 100 square kilometers (32 to 37 square miles) in size 
which:
    (i) Provide connectivity to Mexico;
    (ii) Contain adequate levels of native prey species, including deer 
and javelina, as well as medium-sized prey such as coatis, skunks, 
raccoons, or jackrabbits;
    (iii) Include surface water sources available within 20 km (12.4 
mi) of each other;
    (iv) Contain 3 to 40 percent canopy cover within Madrean evergreen 
woodland, generally recognized by a mixture of oak, juniper, and pine 
trees on the landscape, or semidesert grassland vegetation communities, 
usually characterized by Pleuraphis mutica (tobosagrass) or Bouteloua 
eriopoda (black grama) along with other grasses;
    (v) Are characterized by intermediately, moderately, or highly 
rugged terrain; and
    (vi) Are characterized by minimal to no human population density, 
no major roads, or no stable nighttime lighting over any 1-square-
kilometer (0.4-square-mile) area.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map units. Digital data layers defining map 
units were created using hydrography data, vegetation biomes, tree 
cover, terrain ruggedness, Human Influence Index (HII) (see ``Habitats 
Protected from Disturbance or Representative of the Historical, 
Geographic, and Ecological Distributions of the Species,'' above), and 
undisputed Class I jaguar records from 1962 to the present, and were 
then mapped using Universal Transverse Mercator (UTM) coordinates.
    (5) Index map follows:
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[[Page 50239]]

[GRAPHIC] [TIFF OMITTED] TP20AU12.000

    (6) Units 1, 2, 3, and 4: Baboquivari, Atascosa, Patagonia, and 
Whetstone Units, Pima, Santa Cruz, and Cochise Counties, Arizona.
    (i) From USGS 1:24,000 scale digital ortho-photo quarter-
quadrangles: Aguirre Peak NE; Aguirre Peak NW; Aguirre Peak SE; Aguirre 
Peak SW; Alamo Spring NE; Amado SW; Apache Peak NE; Apache Peak NW; 
Apache Peak SE; Apache Peak SW; Arivaca SE; Arivaca SW; Baboquivari 
Peak NE; Baboquivari Peak NW; Baboquivari Peak SE; Baboquivari Peak SW; 
Bartlett Mountain NE; Bartlett Mountain NW; Bartlett Mountain SE; 
Bartlett Mountain SW; Benson SW; Bob Thompson Peak NW; Canelo Pass NE; 
Canelo Pass NW; Caponera Peak NE; Caponera Peak NW; Caponera Peak SE; 
Chiuli Shaik NE; Chiuli Shaik SE; Corona de Tucson SE; Cumero Canyon 
NE; Cumero Canyon SE; Duchesne NE; Duchesne NW; Empire Ranch NE; Empire 
Ranch NW; Empire Ranch SW; Fort Huachuca SW; Green Valley SE; Green 
Valley SW; Haivana Nakya SE; Harshaw NE; Harshaw NW; Harshaw SE; 
Harshaw SW; Helvetia NE; Helvetia NW; Helvetia SE; Helvetia SW; 
Huachcua Peak NE; Huachcua Peak NW; Huachcua Peak SE; Huachcua Peak SW; 
Kino Springs NE; Kitt Peak NE; Kitt Peak NW; Kitt Peak SE; Kitt Peak 
SW; McGrew Spring NW; McGrew Spring SW; Mescal SE; Mescal SW; Mildred 
Peak NE; Mildred Peak

[[Page 50240]]

NW; Mildred Peak SW; Miller Peak NE; Miller Peak NW; Miller Peak SE; 
Miller Peak SW; Montezuma Pass NE; Montezuma Pass NW; Mount Fagan SE; 
Mount Fagan SW; Mt. Hopkins NE; Mt. Hopkins NW; Mt. Hopkins SE; Mt. 
Hopkins SW; Mt. Hughes NE; Mt. Hughes NW; Mt. Hughes SE; Mt. Hughes SW; 
Mt. Wrightson NE; Mt. Wrightson NW; Mt. Wrightson SE; Mt. Wrightson SW; 
Murphy Peak NE; Murphy Peak SE; Murphy Peak SW; Mustang Mountains NE; 
Mustang Mountains NW; Mustang Mountains SE; Mustang Mountains SW; 
Nicksville SW; O'Donnell Canyon NW; O'Donnell Canyon SE; O'Donnell 
Canyon SW; Pajarito Peak NE; Pajarito Peak NW; Palo Alto Ranch NW; Pan 
Tak SE; Pan Tak SW; Patagonia NE; Patagonia NW; Patagonia SE; Patagonia 
SW; Pena Blanca Lake NE; Pena Blanca Lake NW; Pena Blanca Lake SE; Pena 
Blanca Lake SW; Presumido Peak NW; Presumido Peak SE; Presumido Peak 
SW; Pyeatt Ranch NE; Pyeatt Ranch NW; Pyeatt Ranch SE; Pyeatt Ranch SW; 
Ruby NE; Ruby NW; Ruby SE; Ruby SW; San Cayento Mountains NE; San Juan 
Spring NE; San Juan Spring SE; San Pedro SW; Sasabe NW; Saucito 
Mountain SE; Sonoita NW; Sonoita SE; Sonoita SW; Spring Water Canyon 
NE; Spring Water Canyon NW; Spring Water Canyon SE; The Narrows SE; The 
Narrows SW; Tubac NE; Tubac NW; Tubac SE; Tubac SW; Arizona.
    (ii) Map of Units 1, 2, 3, and 4 follows:

[[Page 50241]]

[GRAPHIC] [TIFF OMITTED] TP20AU12.001

    (7) Units 5 and 6: Peloncillo and San Luis Units, Cochise County, 
Arizona, and Hidalgo County, New Mexico.
    (i) From USGS 1:24,000 scale digital ortho-photo quarter-
quadrangles: Black Point NW; Black Point SW; Clanton Draw NW; Clanton 
Draw SW; Fitzpatricks SE; Guadalupe Canyon NE; Guadalupe Canyon NW; 
Guadalupe Pass NW; Guadalupe Spring NE; Guadalupe Spring NW; Guadalupe 
Spring SE; Guadalupe Spring SW; Lang Canyon NE; Lazy J Ranch NE; Lazy J 
Ranch SE; Paramore Crater NE; Paramore Crater SE; San Luis Pass SW; 
Skeleton Canyon NE; Skeleton Canyon NW; Skeleton Canyon SE; Skeleton 
Canyon SW; Whitewater Creek NW; Arizona and New Mexico.
    (ii) Map of Units 5 and 6 follows:

[[Page 50242]]

[GRAPHIC] [TIFF OMITTED] TP20AU12.002

* * * * *

    Dated: August 2, 2012.
Eileen Sobeck,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-19950 Filed 8-17-12; 8:45 am]
BILLING CODE 4310-55-C