Federal Register, Volume 79 Issue 43 (Wednesday, March 5, 2014)

[Federal Register Volume 79, Number 43 (Wednesday, March 5, 2014)]
[Rules and Regulations]
[Pages 12572-12654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03485]

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Vol. 79

Wednesday,

No. 43

March 5, 2014

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; Final Rule

Federal Register / Vol. 79 , No. 43 / Wednesday, March 5, 2014 /
Rules and Regulations

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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: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the jaguar (Panthera onca) under the Endangered
Species Act, as amended. In total, approximately 309,263 hectares
(764,207 acres) in Pima, Santa Cruz, and Cochise Counties, Arizona, and
Hidalgo County, New Mexico, fall within the boundaries of the critical
habitat designation. This designation fulfills our obligations under a
settlement agreement. The effect of this regulation is to designate
critical habitat for jaguar under the Endangered Species Act.

DATES: This rule is effective on April 4, 2014.

ADDRESSES: This final rule is available on the Internet at http://www.fws.gov/southwest/es/arizona/Jaguar.htm, and at http://www.regulations.gov. Comments and materials received, as well as some
supporting documentation we used in preparing this final rule,
including the final economic analysis and final environmental
assessment, are available for public inspection at http://www.regulations.gov. Some supporting documentation is also available at
http://www.fws.gov/southwest/es/arizona/Jaguar.htm. All of the
comments, materials, and documentation that we considered in this
rulemaking are available by appointment, during normal business hours
at: 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.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.regulations.gov at
Docket No. FWS-R2-ES-2012-0042, and at the Arizona Ecological Services
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Any
additional tools or supporting information that we developed for this
critical habitat designation will also be available at the Fish and
Wildlife Service Web site and Field Office set out above, and may also
be included at http://www.regulations.gov.

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

Why we need to publish a rule. This is a final rule to designate
critical habitat for the jaguar. Under the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.) (Act), any species that is
determined to be an endangered or threatened species requires critical
habitat to be designated, to the maximum extent prudent and
determinable. Designations and revisions of critical habitat can only
be completed by issuing a rule.
We, the U.S. Fish and Wildlife Service (Service), listed the jaguar
as an endangered species on March 30, 1972 (37 FR 6476), in accordance
with the Endangered Species Conservation Act of 1969, a precursor to
the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et
seq.). On August 20, 2012, we published in the Federal Register a
proposed critical habitat designation for jaguar (77 FR 50213). Section
4(b)(2) of the Act states that the Secretary shall designate 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 critical habitat areas we are designating in this rule
constitute our current best assessment of the areas that meet the
definition of critical habitat for the jaguar. Here we are designating
approximately 309,263 hectares (ha) (764,207 acres (ac)) in Pima, Santa
Cruz, and Cochise Counties, Arizona, and Hidalgo County, New Mexico, in
six critical habitat units.
Unit 1, Baboquivari Unit, approximately 25,549 ha (63,134
ac) Baboquivari, Saucito, Quinlan, and Coyote Mountains in Pima County,
Arizona.
Unit 2, Atascosa Unit, approximately 58,624 ha (144,865
ac) in the Tumacacori, Atascosa, and Pajarito Mountains, in Pima and
Santa Cruz Counties, Arizona.
Unit 3, Patagonia Unit, approximately 142,248 ha (351,501
ac) in the Santa Rita, Patagonia, Empire, and Huachuca Mountains, and
Grosvenor and Canelo Hills, in Pima, Santa Cruz, and Cochise Counties,
Arizona.
Unit 4, Whetstone Unit, approximately 38,149 ha (94,269
ac) in the Whetstone Mountains, including connections to the Empire,
Santa Rita and Huachuca Mountains, in Pima, Santa Cruz, and Cochise
Counties, Arizona.
Unit 5, Peloncillo Unit, approximately 41,571 ha (102,724
ac) in the Peloncillo Mountains, in Cochise County, Arizona, and
Hidalgo County, New Mexico.
Unit 6, San Luis Unit, approximately 3,122 ha (7,714 ac)
in the San Luis Mountains, Hidalgo County, New Mexico.
This rule consists of: A final rule for designation of critical
habitat for the jaguar. The jaguar is already listed under the Act.
This rule designates critical habitat essential for the conservation of
the species.
We have prepared an economic analysis and environmental assessment
of the designation of critical habitat. In order to consider economic
impacts, we have prepared an analysis of the economic impacts of the
critical habitat designation and related factors. We have also
completed an environmental assessment to evaluate whether there would
be any significant environmental impacts as a result of the critical
habitat designation. We announced the availability of both the draft
economic analysis and draft environmental assessment in the Federal
Register on July 1, 2013 (78 FR 39237), allowing the public to provide
comments on our analyses. We have incorporated the comments and have
completed the final economic analysis and final environmental
assessment with this final determination.
Peer review and public comment. We sought comments from seven
independent specialists to ensure that our designation is based on
scientifically sound data and analyses. We obtained opinions from six
knowledgeable individuals with scientific expertise to review our
technical assumptions, analysis, and whether or not we had used the
best available information. Most of the peer reviewers (five of the
six) generally concurred with our methods and

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conclusions and provided additional information, clarifications, and
suggestions to improve this final rule. One peer reviewer was against
critical habitat designation for the jaguar, stating that there is no
habitat in the United States at this time that is critical to the
survival of the jaguar as a species. Information we received from peer
review is incorporated in this final revised designation. We also
considered all comments and information received from the public during
the comment period.

Previous Federal Actions

On August 20, 2012, we published in the Federal Register a proposed
rule to designate critical habitat for the jaguar (77 FR 50214). In
that proposed rule, we proposed to designate approximately 339,220 ha
(838,232 ac) as critical habitat in six units located in Pima, Santa
Cruz, and Cochise Counties, Arizona, and Hidalgo County, New Mexico.
The comment period opened August 20, 2012, and closed October 19, 2012.
On March 12, 2013, we received a report from the Jaguar Recovery
Team (described later in this document) entitled Jaguar Habitat
Modeling and Database Update (Sanderson and Fisher 2013, entire) that
included a revised habitat model for the jaguar in the proposed
Northwestern Recovery Unit. This report recommended defining habitat
patches of less than 100 square kilometers (km\2\) (38.6 square miles
(mi\2\)) in size as unsuitable for jaguars; therefore, we incorporated
this information into the physical and biological feature for the
jaguar, which formerly described areas of less than 84 km\2\ (32.4
mi\2\) as unsuitable. Additionally, the report recommended slight
changes to some of the habitat features we used to describe the primary
constituent elements (PCEs) comprising jaguar critical habitat (see
Summary of Changes from Proposed Rule, above). The revised physical and
biological feature and PCEs resulted in changes to the boundaries of
our original proposed critical habitat.
On July 1, 2013 (78 FR 39237), we announced the revisions described
above to our proposed designation of critical habitat for the jaguar,
which now included approximately 347,277 ha (858,137 ac) as critical
habitat in six units located in Pima, Santa Cruz, and Cochise Counties,
Arizona, and Hidalgo County, New Mexico. We also announced the
availability of a draft economic analysis and draft environmental
assessment of the revised proposed designation of critical habitat for
jaguar and an amended required determinations section of the proposal.
Additionally, we announced the reopening of the comment period. The
comment period opened July 1, 2013, and closed August 9, 2013.
On August 15, 2013, the U.S. District Court for the District of
Columbia granted the Service's motion to extend the deadline for
publishing a final critical habitat designation for the jaguar to
December 16, 2013. This rescheduled final rulemaking date allowed us to
reopen the public comment period again, for which we had received
multiple requests. On August 29, 2013 (78 FR 53390), we announced the
reopening of the comment period for an additional 15 days. The comment
period opened August 29, 2013, and closed September 13, 2013.
All previous Federal actions are described in the proposal and
revised proposal to designate critical habitat for the jaguar under the
Act published in the Federal Register (77 FR 50214; August 20, 2012 and
78 FR 39237; July 1, 2013, respectively) and the final rule clarifying
the status of the jaguar in the United States (62 FR 39147; July 22,
1997).

Background

Below we provide a general discussion of jaguar habitat
requirements. Additional background information on the jaguar, beyond
what is provided below, can be found in the proposed jaguar critical
habitat designation published in the Federal Register on August 20,
2012 (77 FR 50214), the revisions to our proposed designation of
critical habitat for the jaguar published in the Federal Register on
July 1, 2013 (78 FR 39237), and this final rule clarifying the status
of the jaguar in the United States (62 FR 39147; July 22, 1997).

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 available in the U.S.-Mexico borderlands area is quite
different from habitat in Central and South America, 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 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 desertscrub, mesquite grassland,
Madrean oak woodland, and pine-oak woodland in mountain ranges in
southern Arizona. Additionally, another male jaguar has been documented
utilizing Madrean evergreen woodland habitat in southern Arizona from
2011 through 2013 (see Table 1 in the ``Class I Records'' section,
below). 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.

Jaguar Recovery Planning in Relation to Critical Habitat

Information currently available for northern jaguars is scant;
therefore, we convened a binational Jaguar Recovery Team team in 2010
to synthesize information on the jaguar, focusing on a unit comprising
jaguars in the northernmost portion of their range, the proposed
Northwestern Recovery Unit. The team comprises members from the United
States and Mexico, and is composed of two subgroups: A technical
subgroup and an implementation subgroup. Both subgroups have nearly
equal representation from the United States and Mexico. The technical
subgroup consists of feline ecologists, conservation biologists, and
other

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experts, who advise the Jaguar Recovery Team and the Service on
appropriate short- and long-term actions necessary to recover the
jaguar. The implementation subgroup consists of members who advise the
technical subgroup and the Service on ways to achieve timely recovery
with minimal social and economic impacts or costs. Specifically, the
implementation subgroup consists of landowners and land and wildlife
managers from Federal, state, tribal, and private entities. The Jaguar
Recovery Team has two co-leaders, one from the United States and one
from Mexico; both are members of the technical subgroup, though they
serve as co-leaders for the entire Jaguar Recovery Team.
In April 2012, the Jaguar Recovery Team produced the Recovery
Outline for the Jaguar. The Recovery Outline serves as an interim
guidance document to direct recovery efforts, including recovery
planning, for the jaguar until a full recovery plan is developed and
approved (a draft recovery plan for the jaguar is expected to be
completed in spring 2014). It includes a preliminary strategy for
recovery of the species, and recommends high-priority actions to
stabilize and recover the species. The Recovery Outline delineates two
recovery units for the species, the Northwestern Recovery Unit
(encompassing the United States and northwestern Mexico) and the Pan
American Recovery Unit (encompassing the rest of the range). The
recovery units are further divided into core or secondary areas. Lands
within the United States are a part of the Borderlands Secondary Area
within the proposed Northwestern Recovery Unit (Sanderson and Fisher
2013, p. 10; note that this map updates the map of the Northwestern
Recovery Unit shown on p. 58 of the Recovery Outline for the Jaguar).
The Borderlands Secondary Area within the proposed Northwestern
Recovery Unit for the jaguar (Jaguar Recovery Team 2012, p. 58;
Sanderson and Fisher 2013, p. 10) is only a small portion of the
jaguar's range. Because such a small portion occurs in the United
States, researchers anticipate 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. These areas support
some individuals during dispersal movements, provide small patches of
habitat (perhaps in some cases with a few resident jaguars), and
provide 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 (Jaguar Recovery Team 2012, pp. 40, 42), 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.
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 current range, with
populations persisting in one of only four distinct xeric (extremely
dry) habitats that occur within the species' range (Sanderson et al.
2002, Appendix 1). 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 proposed Northwestern Recovery
Unit to utilize physical and biological habitat features in the
borderlands region is ecologically important to the recovery of the
species; therefore, maintaining connectivity to Mexico is essential to
the conservation of the jaguar.
Through an iterative process incorporating new information and
expert opinion (as described in the Jaguar Habitat Modeling and
Database Update report produced by Sanderson and Fisher (2013,
entire)), the Jaguar Recovery Team developed and refined the habitat
requirements for jaguars in the proposed Northwestern Recovery Unit.
For the portion of this recovery unit encompassing the United States,
the habitat features providing jaguar habitat include areas of at least
100 km\2\ (38.6 mi\2\) in size (the minimum area necessary to support
one jaguar) in which can be found: (1) Tree cover from greater than 1
to 50 percent; (2) intermediately, moderately, or highly rugged
terrain; (3) water within 10 km (6.2 mi); (4) an elevation of less than
2,000 meters (m) (6,562 feet (ft)); (5) Sierra Madre Occidental pine-
oak forests; and (6) a Human Influence Index (HII) of less than 20
(habitat factors, habitat types, and masks as described in Sanderson
and Fisher 2013, pp. 33-34, 38, and 41). Therefore, we are basing our
definition of jaguar habitat in the United States on these features
(see Physical or Biological Features, below).

Summary of Changes From Proposed Rule

In developing the final jaguar critical habitat designation, we
reviewed public comments received on the proposed rule (77 FR 50214;
August 20, 2012), the revision to the proposed rule, the draft economic
analysis, and the draft environmental assessment (78 FR 39237; July 1,
2013 and 78 FR 53390; August 29, 2013).
On August 20, 2012, we published in the Federal Register a proposed
rule to designate critical habitat for the jaguar (77 FR 50214). We
based the physical and biological feature and PCEs on a preliminary
habitat modeling report we received from the Jaguar Recovery Team in
2011 entitled Jaguar Habitat Modeling and Database (Sanderson and
Fisher 2011, pp. 1-11), in which the habitat features preferred by the
jaguar in the proposed Northwestern Recovery Unit were described based
on the best

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available science and expert opinion of the Jaguar Recovery Team at
that time.
In our revised proposed rule we modified the critical habitat
boundaries based on new information received. Since August 20, 2012,
the Jaguar Recovery Team continued to revise and refine the habitat
features preferred by the jaguar through an iterative process based on
additional information and expert opinion, resulting in an updated
habitat modeling report entitled Jaguar Habitat Modeling and Database
Update (Sanderson and Fisher 2013, entire) that we received on March
12, 2013. Changes to habitat features preferred by jaguars in the
proposed Northwestern Recovery Unit included: (1) Defining habitat
patches of less than 100 km\2\ (38.6 mi\2\) in size as too small to
support a jaguar (the physical and biological feature formerly
described areas of less than 84 km\2\ (32.4 mi\2\) as too small); (2) a
canopy cover from greater than 1 to 50 percent as suitable in the
northern part of the proposed Northwestern Recovery Unit (PCE 4
formerly included a range of 3 to 40 percent canopy cover); (3)
delineating areas 2,000 m (6,562 ft) and higher as unsuitable
(previously there was no PCE related to an upper-elevation limit); and
(4) slightly diminishing (from up to or equal to 20 to less than 20)
the level of the HII tolerated by jaguars in the northern part of the
proposed Northwestern Recovery Unit (formerly PCE 6, now PCE 7). When
combined and analyzed with a geographic information system (GIS), these
changes added some new areas containing all of the PCEs, while other
areas no longer contained all of the PCEs and, therefore, were removed
(see Primary Constituent Elements for Jaguar, below, for further
information). An increase in area was usually due to the increased
range in canopy cover (from greater than 1 to 50 percent, instead of 3
to 40 percent), while a decrease in area was usually due to the upper
elevation limit of 2,000 m (6,562 ft).
In addition to the changes described above, multiple photos of a
jaguar in the Santa Rita Mountains taken since our August 20, 2012 (77
FR 50214), proposed designation provided additional information about
the occupancy status of Unit 3 (Patagonia Unit) of jaguar critical
habitat, which formerly contained only one jaguar record in the
Patagonia Mountains from 1965 (see Table 1 in the ``Class I Records''
section, below). While our understanding of the habitat features did
not change drastically between 2012 and 2013, the combination of a
slightly different physical and biological feature and several PCEs (as
described above) and the recent jaguar sightings resulted in the
changes noted in our July 1, 2013 (78 FR 39237), proposed rule.
In this final rule we are making the following changes. We are
excluding and exempting areas from the final designation pursuant to
sections 4(b)(2) and 4(a)(3) of the Act, respectively. We are excluding
lands owned and managed by the Tohono O'odham Nation, and we are
exempting lands owned and managed by Fort Huachuca. Figure 1 displays
the excluded and exempted areas in relation to the final critical
habitat designation. The exclusion of Tohono O'odham Nation lands in
Unit 1 resulted in the appearance of five disconnected areas of land in
Subunit 1a and of two disconnected areas of land in Subunit 1b. Figure
2 is a magnified view of Unit 1 displaying the excluded areas in
relation to critical habitat for Unit 1. These areas that appear
disconnected are not in fact disjunct, as there is continued jaguar
habitat within the excluded areas that provides continuity and
connectivity among the areas that appear disconnected. The exemption of
Fort Huachuca did not result in the appearance of any disconnected
areas. (See the Final Critical Habitat Designation section, below, for
additional information).
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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

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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 pursuant to 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 part of the Act's definition of critical habitat,
areas within the geographical 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 or 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, soil type) that are essential to the
conservation of the species. Primary constituent elements are those
specific elements of the physical or biological features that provide
for a species' life-history processes and are essential to the
conservation of the species.
Under the second part of the Act's definition of critical habitat,
we can designate critical habitat in 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. 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
geographical 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 insure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. 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.
In the following sections we will define the regulatory terms in
the definition of critical habitat, as they apply to the jaguar, and
then explain how the critical habitat boundaries were developed based
on the application of these terms.

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

[[Page 12579]]

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. Based on our analysis, we are including areas as occupied that
contain an undisputed Class I record at some time between 1962 to the
present (September 11, 2013). 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 further evaluated these areas and have also
determined these areas to be essential to the conservation of the
jaguar. Our rationale for this approach is explained in the following
sections.
Class I Records
Reports of jaguar sightings are sorted into multiple ``classes''
based on the degree of certainty that a jaguar was sighted. 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 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. Table 1 summarizes
these records, below.

TABLE 1--Undisputed Class I * Jaguar Records for Arizona and New Mexico Used for Purposes of Determining Occupancy of Jaguar Critical Habitat, 1962-
September 11, 2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
Circumstance/
Date Collector Sex Location documentation Biotic community Information source
--------------------------------------------------------------------------------------------------------------------------------------------------------
2013: 9/11, 8/1, 6/17, 5/31, 5/ University of Male (same as 2011 Santa Rita Trail camera Madrean evergreen USFWS Flickr site:
29, 5/17, 5/11, 4/27, 1/16. Arizona. male based on Mountains. photographs. woodland, http://bit.ly/
pelage semidesert TapYhK.
comparison). grassland.
2012: 12/31, 11/11, 11/10, 10/25 University of Male (same as 2011 Santa Rita Trail camera Madrean evergreen USFWS Flickr site:
Arizona. male based on Mountains. photographs. woodland, http://bit.ly/
pelage semidesert TapYhK.
comparison). grassland.
2012: 9/23...................... AGFD.............. Male (same as 2011 Santa Rita Trail camera Semidesert USFWS: http://
male based on Mountains. photograph. grassland. www.fws.gov/
pelage southwest/es/
comparison). arizona/Documents/
SpeciesDocs/
Jaguar/fNR-jaguar-
pics--Dec--2012B.
docx.pdf.
2011: 11/19..................... D Fenn............ Male (5th unique Whetstone Treed by hunting Madrean evergreen AGFD: http://
AZ-NM jaguar Mountains. dogs; photos and woodland. www.azgfd.gov/w--
since 1996). video. c/jaguar/
documents/
Web%20Release%20j
ag%20reports%2020
12.02.24.pdf.
2008: 8/2....................... J Childs and E Male (Macho B).... Atascosa Mountains Trail camera Madrean evergreen J Childs and E
McCain. photograph. woodland. McCain, BJDP
unpubl. data.
2008: 7/29...................... J Childs and E Unknown or Male Tumacacori Trail camera Semidesert J Childs and E
McCain. (Macho B). Mountains. photograph (photo grassland. McCain, BJDP
too fuzzy to unpubl. data.
identify jaguar).
2007: 7/25, 5/7, 4/25, 4/22, 4/ J Childs and E Male (Macho B).... Coyote Mountains, Trail camera Madrean evergreen J Childs and E
21, 4/3, 3/27, 3/26, 3/25, 3/7, McCain. Baboquivari photographs, woodland, McCain, BJDP
2/22, 2/12, 2/9, 1/25, 1/22, 1/ Mountains. video, tracks. semidesert unpubl. data; see
19, 1/10, 1/1. grassland. also McCain and
Childs 2008, pp.
3, 7.
2007: 2/22...................... J Childs and E Male (Macho B).... Baboquivari 500-lb calf Madrean evergreen J Childs and E
McCain. Mountains. depredation. woodland. McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp.
3, 7.
2006: 12/29, 12/3, 11/20, 10/18, J Childs and E Male (Macho B).... Coyote Mountains, Trail camera Madrean evergreen J Childs and E
10/15, 9/26, 6/9, 5/31, 5/27, 5/ McCain. Baboquivari photographs, woodland, McCain, BJDP
23, 5/21, 5/14, 5/13, 5/12, 5/ Mountains, video, tracks. semidesert unpubl. data; see
10, 5/6, 5/5, 5/4, 5/2, 4/30, 4/ Atascosa grassland, also McCain and
28, 4/27, 4/23, 4/18, 4/3, 3/ Mountains. Sonoran Childs 2008, pp.
30, 3/27, 3/26. desertscrub. 3, 7.
2006: 2/20...................... W Glenn........... Male (4th unique South of Animas Photographs....... Madrean evergreen AGFD unpubl. data;
AZ-NM jaguar Mountains on woodland. Childs and Childs
since 1996). north end of San 2008, p. 95.
Luis Mountains.

[[Page 12580]]

2005: 12/17, 12/12, 11/18, 11/ J Childs and E Male (Macho B).... Tumacacori Trail camera Madrean evergreen J Childs and E
17, 11/16, 11/6, 11/5, 11/4, 7/ McCain. Mountains, photographs and woodland, McCain, BJDP
29, 7/28, 7/26, 7/3, 6/8, 6/3, Atascosa tracks. semidesert unpubl. data; see
1/12, 1/2. Mountains. grassland. also McCain and
Childs 2008, pp.
3, 7.
2005: 9/26, 7/11................ J Childs and E Unknown........... Atascosa Mountains Tracks............ Madrean evergreen J Childs and E
McCain. woodland. McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp.
3, 7.
2004: 12/31, 12/29, 12/27, 12/ J Childs and E Male (Macho B).... Atascosa Mountains Trail camera Madrean evergreen J Childs and E
19, 12/17, 12/12, 11/28, 11/8, McCain. photographs and woodland, McCain, BJDP
10/27, 9/26, 8/31. track. semidesert unpubl. data; see
grassland. also McCain and
Childs 2008, pp.
3, 7.
2004: 12/7, 9/12, 6/24.......... J Childs and E Unknown (possibly Atascosa Mountains Trail camera Madrean evergreen J Childs and E
McCain. Macho A or photographs and woodland. McCain, BJDP
possible 6th track. unpubl. data; see
unique AZ-NM also McCain and
jaguar since Childs 2008, pp.
1996). 3, 7; and McCain
and Childs 2008,
p. 5 for a
description of
why this
individual could
be Macho A or
possibly another
unique jaguar.
2004: 9/25...................... J Childs and E Male (Macho A).... Atascosa Mountains Trail camera Madrean evergreen J Childs and E
McCain. photograph. woodland. McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp.
3, 7.
2003: 8/7....................... J Childs and E Male (Macho A).... Atascosa Mountains Trail camera Madrean evergreen J Childs and E
McCain. photograph. woodland. McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp.
3, 7.
2001: 12/9...................... J Childs and E Male (Macho A; 3rd Atascosa Mountains Trail camera Madrean evergreen J Childs and E
McCain. unique jaguar photograph. woodland. McCain, BJDP
since 1996). unpubl. data; see
also McCain and
Childs 2008, pp.
3, 7.
1996: 8/31...................... J Childs.......... Male (Macho B; 2nd Baboquivari Treed while lion Madrean evergreen Brown and
unique AZ-NM Mountains. hunting; woodland. L[oacute]pez
jaguar since photographs. Gonz[aacute]lez
1996). 2001, p. 7,
McCain and Childs
2008, p. 2.
1996: 3/7....................... W Glenn........... Male (1st unique Peloncillo Bayed while lion Madrean evergreen Glenn 1996; Brown
AZ-NM jaguar Mountains. hunting with woodland. and L[oacute]pez
since 1996). dogs; photographs. Gonz[aacute]lez
2001, p. 6.
1995: 4/19...................... B Starrett........ Unknown........... Peloncillo Photograph of Madrean evergreen AGFD unpubl. data;
Mountains. track. woodland. NMDGF unpubl.
data.
1986: 12........................ J Klump........... Male.............. Dos Cabezas Bayed and killed Madrean evergreen Brown and
Mountains. while lion woodland. L[oacute]pez
hunting with dogs. Gonz[aacute]lez
2001, p. 7.
1971: 11/16..................... R Farley and T Male.............. Santa Cruz River.. Killed by boys Madrean evergreen Brown and
Cartier. duck hunting with woodland, L[oacute]pez
shotguns. semidesert Gonz[aacute]lez
grassland. 2001, p. 7.
1965: 11/16..................... L McGee........... Male.............. Patagonia Shot while deer Madrean evergreen Brown and
Mountains. hunting. woodland. L[oacute]pez
Gonz[aacute]lez
2001, p. 7.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Physical evidence (e.g., skin, skull, photograph, track) was reviewed and accepted by the Arizona Game and Fish Department (AGFD), New Mexico
Department of Game and Fish (NMDGF), or other credible person(s). (BJDP=Borderlands Jaguar Detection Project).

There are several disputed Class I 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 (Brown and L[oacute]pez
Gonz[aacute]lez 2001, p. 7). As described in Johnson et al. (2011, p.
9), as well as from information provided during the

[[Page 12581]]

public comment period on our August 20, 2012, proposed critical habitat
designation (77 FR 50214), 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
other exceptions are any records of the jaguar known as Macho B dating
from October 3, 2008, until his final capture on March 2, 2009. We have
determined that it is within this timeframe that female jaguar scat may
have been used as scent lure at some trail camera locations within the
Coronado National Forest that may have affected his behavior;
therefore, we are not including these observations as undisputed Class
I records.

Time of Listing

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
Endangered Species Conservation Act, 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 seven 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.

Occupancy at the Time of Listing

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 lifespan 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 (1972), presumably these areas would have been inhabited by
jaguars when the species was listed in 1972.
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.
Reduced Jaguar Numbers
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 likelihood of detecting them. As
evidence, only six, possibly seven, individual jaguars have been
detected in the United States since 1982 (five, possibly six,
individuals since 1996, as well as the jaguar shot in the Dos Cabezas
Mountains in 1986; see Table 1, above), including two that have been
documented utilizing two distinct mountain ranges, one of which
encompassed approximately 1,359 km\2\ (525 mi\2\) (McCain and Childs
2008, entire) (see ``Space for Individual and Population Growth and for
Normal Behavior'' section, below). Therefore, we believe that
undisputed 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.
Jaguar Detection Difficulty
In addition to lowered detection probabilities (the probability of
detecting a jaguar when present) resulting from the rarity of animals,
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), as is the case for the jaguar. This fact
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, meaning it often contains 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).
Sampling Method Difficulty
Jaguars are difficult to detect due to their rarity, cryptic
appearance, elusive behavior, and habitat complexity. Compounding the
problem of low detection rates is that not all individuals can be
detected using any one particular sampling method or even using
multiple methods. 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). Attempting to detect rare species by using multiple sampling
methods or surveying multiple times can increase detections or increase
confidence that non-detections are true absences; however, this is
often prohibitively time-consuming and expensive and may not always be
feasible because of the sensitivity of the species.

[[Page 12582]]

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, so we cannot be sure that a lack of detection indicates the
species was absent.
Summary
Based on the above information, we determine that areas in which
jaguars have been documented from 1962 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 1962 to the present
(September 11, 2013) may have been occupied by jaguars at the time of
listing.

Occupancy Uncertainty

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, an argument could 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 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
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).

Physical or Biological Features

In accordance with sections 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
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features 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, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features essential
for the jaguar from studies of this species' habitat, ecology, and life
history as described in the Critical Habitat section of the proposed
rule to designate critical habitat published in the Federal Register on
August 20, 2012 (77 FR 50214), in the proposed revision of critical
habitat published in the Federal Register on July 1, 2013 (78 FR
39237), and in the information presented 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), the Digital Mapping in
Support of Recovery Planning for the Northern Jaguar report (Sanderson
and Fisher 2011, pp. 1-11), and the Jaguar Habitat Modeling and Update
report (Sanderson and Fisher 2013, entire). We used the best scientific
information available on habitat in the United States essential to the
conservation of the jaguar as gathered by the Jaguar Recovery Team
through the team's recovery planning effort. A complete list of
information sources is available in our Literature Cited located on
http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0042 and at the
field office responsible for the designation (see FOR FURTHER
INFORMATION CONTACT above).
To define the physical and biological features required for jaguar
habitat in the United States, we reviewed available information and
supporting data that pertains to the habitat requirements of the
jaguar, focusing 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), the 2011 Digital
Mapping in Support of Recovery Planning for the Northern Jaguar
preliminary report (Sanderson and Fisher 2011, pp. 1-11) and the 2013
Jaguar Habitat Modeling and Update report (Sanderson and Fisher 2013,
entire), which we regard as the best available scientific information
for the jaguar and its habitat needs in the northern portion of its
range. To define the physical and biological features and associated
PCEs required for jaguar habitat in the United States, we relied
primarily on information compiled in the Jaguar Habitat Modeling and
Database Update report (Sanderson and Fisher 2013, entire). In two
cases we substituted data layers for which more detailed, higher-
resolution data were available for the United States (see ``Cover or
Shelter'' and ``Habitats that are Protected from Disturbance or are
Representative of the Historical, Geographical, and Ecological
Distributions of a Species'' sections, below). For a complete list of
data sources, see our response to comment number 63 in our Summary of

[[Page 12583]]

Comments and Recommendations section.
We have determined that the jaguar requires the following physical
or biological feature as further described below: 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, are below 2,000 m (6,562 feet (ft)), and have minimal
human impact.
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 in rugged terrain for resting that are
removed from the impacts of human activity and influence (Jaguar
Recovery 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 of the
individual, 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 km\2\ (38.6 mi\2\) (L[oacute]pez
Gonz[aacute]lez 2011, pers. comm.). Additionally, a male in Sonora was
documented through camera traps using an average home range of 84 km\2\
(32 mi\2\) (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
km\2\ (525 mi\2\) 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.), as well as the expert opinion of the technical subgroup
of the Jaguar Recovery Team, which came to the consensus that areas
less than 100 km\2\ (38.6 mi\2\) were too small to support a jaguar
(Sanderson and Fisher 2013, p. 30) 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 100 km\2\ (38.6 mi\2\) in
size 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 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 expansive open 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 feature of jaguar
habitat are separated by valley bottoms that may not possess the
feature described in this final rule. However, we also know that, based
on home range sizes and research and monitoring, jaguars will use
valley bottoms (for example, McCain and Childs 2008, p. 7) 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 (lb)) 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

[[Page 12584]]

deer (23 percent), and collared peccary (5.12 percent). Medium-sized
prey (1-10 kg; 2-22 lb), including lagomorphs (rabbit family) and
coatis (Nasua nasua), accounted for less than 20 percent of biomass.
Small prey, less than 1 kg (2 lb), 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;
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, Hatten et al. (2005, p. 1026) analyzed
distance to water as a feature of jaguar habitat using jaguar records
from Arizona dating from 1900 to 2002, from which they selected 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 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 a jaguar habitat modeling exercise in New Mexico
(Menke and Hayes 2003, pp. 15-16), as well.
In the jaguar habitat models developed by Sanderson and Fisher
(2011, pp. 10-11; 2013, pp. 33-34) for the proposed Northwestern
Recovery Unit, 10 km (6.2 mi) was also determined to be the maximum
distance from water that could still provide jaguar habitat. In
addition, this distance was further acknowledged by the technical
subgroup of the Jaguar Recovery Team 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).
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, pp. 3, 7), document jaguars in these same biotic
communities (note that the Madrean evergreen woodland and semidesert
grassland biotic communities encompass mesquite grassland, Madrean oak
woodland, and pine-oak woodland habitats), and the most recent
sightings of a jaguar in Arizona (2011-2013) were in Madrean evergreen
woodland, as well (see Table 1 in the ``Class I Records'' section,
above).
Several modeling studies incorporating vegetation characteristics
have attempted to refine the general

[[Page 12585]]

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 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).
Using the methodology described in Hatten et al. (2005, pp. 1025-
1028), but with some modifications, Sanderson and Fisher (2011, pp. 1-
11; and 2013, entire) created jaguar habitat models for the proposed
Northwestern Recovery Unit. In the latest version of the model (version
13), Sanderson and Fisher (2013, p. 13) used a data set of 453 jaguar
observations (note that Table 1.3 incorrectly states 452 instead of
453) for which the description of the location was sufficient to place
it with certainty within 10 km (6.2 mi) of its actual location, and for
which a date to the nearest century was available (Sanderson and Fisher
2013, pp. 3-5 and Appendix 2). Sanderson and Fisher (2013, p. 6)
substituted a digital layer describing ecoregions (World Wildlife Fund
Ecoregions) for the digital biotic community layer based on Brown and
Lowe (1980, map) and Brown (1994, entire), however. The reason for this
was because the latter two references do not cover the entire
Northwestern Recovery Unit for the jaguar; therefore, an appropriate
substitution was required for modeling purposes. Within this
ecoregion's digital layer, the category given the highest relative
weight (0.2) within the United States is called Sierra Madre Occidental
pine-oak forests, representing the best jaguar habitat within the
borderlands region (Sanderson and Fisher 2013, p. 34). This category
most closely resembles the Madrean evergreen woodland biotic community.
There is no equivalent category for semidesert grassland in the
ecoregions digital layer; instead, Sonoran desert and Chihuahuan desert
cover all grassland and desert biotic communities. These two desert
categories are given a very low relative weight (0.01), representing
poorer quality jaguar habitat within the borderlands region (Sanderson
and Fisher 2013, p. 34).
Sanderson and Fisher (2011, p. 7; 2013, pp. 5-6) also added a
digital layer to capture canopy cover (called land cover in the
reports), as represented by a digital layer called tree cover. In the
latest version of the model (version 13), Sanderson and Fisher (2013,
p. 20) analyzed the tree cover preferred by jaguars in the Jalisco Core
Area (the southernmost part of the Northwestern Recovery Unit)
separately from tree cover in all other areas (note that p. 15 of this
report incorrectly states that the Sinaloa Secondary Area is included
with the Jalisco Core Area in this analysis) to reflect the major
habitat shift from the dry tropical forest of Jalisco, Mexico, to the
thornscrub vegetation of Sonora, Mexico. The results of these analyses
indicate that jaguars in the southernmost part of the Northwestern
Recovery Unit (the Jalisco Core Area) seem to inhabit a wider range of
tree cover values (greater than 1 to 100 percent), whereas jaguars
throughout the rest of the Northwestern Recovery Unit (including the
United States) appear to inhabit a narrower range of tree cover values
(greater than 1 to 50 percent) (Sanderson and Fisher, p. 20).
Therefore, based on the information above, we identify Madrean
evergreen woodlands and semidesert grasslands containing greater than 1
to 50 percent tree cover (or canopy cover) as an essential component of
the physical or biological feature essential for the conservation of
the jaguar in the United States. Though slightly different than the
habitat characteristics included in the latest habitat model produced
by the Jaguar Recovery Team, Madrean evergreen woodland and semidesert
grassland as described by Brown and Lowe (1980, map) and Brown (1994,
entire, including appendices) are included instead of Sierra Madre
Occidental pine-oak, Sonoran desert, and Chihuahuan desert vegetation
communities described by the World Wildlife Fund Ecoregion data layer
because of the higher resolution of these data and more accurate
representation of the vegetation communities in the United States and
borderlands region and their importance to jaguars within this area (as
described above; see also Table 1 in the ``Class I Reports'' section,
above). We directly incorporate the tree cover recommendation within
the northern part of the Northwestern Recovery Unit (greater than 1 to
50 percent; Sanderson and Fisher 2013, p. 33) as part of this essential
physical or biological feature component.
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 most
recent Sanderson and Fisher (2013, p. 17) habitat model for the
Northwestern Recovery Unit for the jaguar 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 incorporating ruggedness 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-km\2\ (0.4-mi\2\) cell (pixel) in their
model. They divided the TRI data into seven classes

[[Page 12586]]

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, through the most recent habitat modeling efforts for
the jaguar in the Northwestern Recovery Unit, Sanderson and Fisher
(2013, pp. 33-34) determined that intermediately, moderately, or highly
rugged terrain represented the best habitat available for jaguars in
the northwestern-most part of their range.
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.
Elevation--Elevation is a component of jaguar habitat in the
northwestern-most portion of its range (Sanderson and Fisher 2013, pp.
5, 6, Appendix 2). Based on a visual analysis of the frequency of
jaguar observations at different elevations within the northwestern-
most portion of the species' range, the technical subgroup of the
Jaguar Recovery Team determined that areas above 2,000 m (6,562 ft) did
not provide jaguar habitat, as only 3.3 percent (15 of 453) of the
observations utilized in the most recent jaguar habitat modeling effort
occurred above this elevation (Sanderson and Fisher 2013, pp. 19, 29;
note that p. 19 incorrectly states 20 observations above 2,000 m (6,562
ft) instead of 15, and Table 1.3 on p. 13 incorrectly states 452 jaguar
observations total instead of 453). In the most recent habitat model
for the jaguar in the proposed Northwestern Recovery Unit, Sanderson
and Fisher (2013, pp. 19, 29) incorporated this upper-elevation limit
and excluded areas above 2,000 m (6,562 ft). Therefore, based on this
information, we identify areas of less than 2,000 m (6,562 ft) in
elevation as an essential component of the physical or biological
feature essential for the conservation of the jaguar in the United
States.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
As demonstrated in Table 1, above, from 1962 to the present all
undisputed Class I jaguar observations for which the sex of the animal
could be determined have been male individuals. Few records of females
exist within the United States (see Brown and L[oacute]pez
Gonz[aacute]lez 2001, pp. 6-9 for records from 1900-2000), and even
fewer records of jaguar breeding events in the United States have been
documented. The most recent known breeding event is from over 100 years
ago in 1910 of a female jaguar with one cub at the head of Chevlon
Canyon in the Sitgreaves National Forest in Arizona (Brown and
L[oacute]pez Gonz[aacute]lez 2001, p. 9). Further, as described in the
Jaguar Recovery Planning in Relation to Critical Habitat section,
above, the recovery function and value of critical habitat within the
United States is to 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 (Jaguar Recovery
Team 2012, pp. 40, 42). Since the last known breeding event in the
United States was in 1910, the breeding habitat for jaguars in the
United States is not clearly understood. Further, while some assessment
of breeding habitat has been conducted in Mexico, this habitat is
different than the habitat in the United States. Therefore we are not
able to identify any additional habitat features needed for purposes of
reproduction, beyond those habitat features already identified.
Habitats That Are Protected From Disturbance or Are Representative of
the Historical, Geographical, and Ecological Distributions of a 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 was 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 L[oacute]pez Gonz[aacute]lez 2001, p.
7). Jaguars are protected by Federal law through the Act and by State
law in Arizona and 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. 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, 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)

[[Page 12587]]

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)
and New Mexico (Menke and Hayes 2003, pp. 9-13; Robinson et al. 2006,
pp. 10, 15, 18-20), and the habitat models developed by Sanderson and
Fisher (2011, pp. 5-11 and 2013, entire) 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 km\2\ 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 ha (10 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 models developed by Sanderson and Fisher (2011, pp. 5-
11 and 2013, pp. 33-42) include 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 km\2\,
railroads, major roads, navigable rivers, coastlines, stable nighttime
lighting, urban polygons, and land cover) to calculate a composite HII
for 1-km\2\ (0.4-mi\2\) grid cells (pixels) worldwide. These values
could range from 0 to 64, with 0 representing no human influence and 64
representing the maximum human influence possible using all 8 measures
of human presence.
In the most recent version of the habitat model (version 13),
Sanderson and Fisher (2013, pp. 20, 34) analyzed the HII preferred by
jaguars in the Jalisco Core Area (the southernmost part of the
Northwestern Recovery Unit) separately from the HII in all other areas
(note that p. 15 of this report incorrectly states that the Sinaloa
Secondary Area is included with the Jalisco Core Area in this analysis)
to recognize that jaguars may respond more tolerantly to human
influence in the south than they do in the north. The results of these
analyses indicate that jaguars in the southernmost part of the
Northwestern Recovery Unit (the Jalisco Core Area) seem to inhabit a
wider range of HII values (less than 30), whereas jaguars throughout
the rest of the Northwestern Recovery Unit (including the United
States) appear to inhabit a narrower range of HII values (less than 20)
(Sanderson and Fisher 2013, pp. 20, 34).
Therefore, based on this information, we identify areas in which
the HII calculated over 1 km\2\ (0.4 mi\2\) is less than 20 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-km\2\ (0.4-mi\2\)
area.

Primary Constituent Elements for Jaguar

Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of jaguar in areas occupied at the time of listing,
focusing on the features' primary constituent elements. Primary
constituent elements are those specific elements of the physical or
biological features that provide for a species' life-history processes
and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to jaguars are:
Expansive open spaces in the southwestern United States of at least
100 km\2\ (38.6 mi\2\) 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 from greater than 1 to 50 percent canopy cover within
Madrean evergreen woodland, generally recognized by a mixture of oak
(Quercus spp.), juniper (Juniperus spp.), and pine (Pinus spp.) 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 below 2,000 m (6,562 feet) in elevation; and
(7) Are characterized by minimal to no human population density, no
major roads, or no stable nighttime lighting over any 1-km\2\ (0.4-
mi\2\) area.
Because habitat in the United States is at the edge of the species'
northern range, and is marginal compared to known habitat throughout
the range, we have determined that all of the primary constituent
elements discussed must be present in each specific area to constitute
critical 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, below).

Special Management Considerations or Protections

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 that are essential to the conservation of
the species and which may require special management considerations or
protection.

[[Page 12588]]

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; 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 (perhaps in some cases becoming resident
in the United States), 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 designated 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 designated 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 feature 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, 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, we know
of no plans to construct additional security fences in the designated
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 continue to occur on a
voluntary basis.
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 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 and 2013, entire) incorporate low
levels of human influence when mapping potential jaguar habitat in the
United States. Special management considerations of the physical and
biological feature essential to the conservation of the jaguar may be
needed to alleviate the effects on jaguar habitat of new road
construction or construction or expansion of power line and pipeline
projects; human developments; mining operations; and ground-based
military activities. 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.

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 (Table 1 in
the ``Class I Records,'' 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 proposed
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
critical habitat designation.

[[Page 12589]]

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 the features these areas 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 2011 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
described a level of uncertainty regarding jaguar use of areas with
moderate tree cover 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 as those areas without a Class I observation
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 areas that may have been occupied
that are also 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 and Empire Mountains and northwestern
extent of the Whetstone Mountains, and a north-south connection area
between the southern extent of the Whetstone Mountains and the Huachuca
Mountains (including the Mustang Mountains).
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.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate 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),
Digital Mapping in Support of Recovery Planning for the Northern Jaguar
report (Sanderson and Fisher 2011, pp. 1-11), and Jaguar Habitat
Modeling and Database Update report (Sanderson and Fisher 2013,
entire), which we regard as

[[Page 12590]]

the best available information for the jaguar and its habitat needs in
the northern portion of its range. A complete list of information
sources is available in our Literature Cited located on http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0042 and at the field
office responsible for the designation (see FOR FURTHER INFORMATION
CONTACT above).
In accordance with the Act and our implementing regulations at 50
CFR 424.12(b), we review available information pertaining to the
habitat requirements of the species and identify occupied areas at the
time of listing that contain the features essential to the conservation
of the species. If, after identifying occupied areas, a determination
is made that those areas are inadequate to ensure conservation of the
species, in accordance with the Act and our implementing regulations at
50 CFR 424.12(e), we then consider whether designating additional
areas--outside those currently occupied--are essential for the
conservation of the species. We are designating critical habitat in
areas within the geographical area occupied by the species at the time
of listing in 1972. 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 Areas Essential for the Conservation of
Jaguars, above, it is our determination that the lands described 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. We also are
designating specific areas without a Class I observation outside the
geographical area that may have been occupied by the species at the
time of listing. These subunits provide connectivity between subunits
that may have been occupied and Mexico because we have determined that
such areas are essential for the conservation of the species.
As discussed above, we are defining the areas that may be occupied
by jaguars to include rugged mountain ranges in southeastern Arizona
and extreme southwestern New Mexico: (1) In which an undisputed Class I
record has been documented (see Table 1 in the ``Class I Records''
section, above) between 1962 and the present (September 11, 2013), and
(2) that currently contain the physical or biological feature described
above (see below for the steps we followed to delineate critical
habitat boundaries). Therefore, occupied areas may include the
Baboquivari, Quinlan, Coyote, Pajarito, Atascosa, Tumacacori,
Patagonia, Canelo Hills, Huachuca, Grosvenor Hills, Santa Rita, Empire,
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 critical
habitat 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 (100 km\2\
(38.6 mi\2\)) to meet the expansive open spaces requirement.
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 feature described above.
We are also designating specific areas without a Class I
observation outside the geographical area that may have been occupied
by the species at the time of listing. These areas provide connectivity
to Mexico, or to another area that may have been occupied that provides
connectivity to Mexico (see Areas Essential for the Conservation of
Jaguars, above), because such areas are essential for the conservation
of the species.
We delineated (mapped) critical habitat boundaries using the
following steps:
(1) We mapped areas containing PCEs 3, 4, 5, and 7 as determined
from GIS data on water availability, vegetation community, tree cover,
ruggedness, and human influence (for a list of data sources, see our
response to comment 63 in the Summary of Comments and Recommendations
section). We did not use data describing distribution of native prey to
map areas because comprehensive, consistent data regarding prey
distribution across Arizona and New Mexico is lacking. Therefore, we
relied on the best information that is readily available from the
Arizona Game and Fish Department (Hunt Arizona 2012 Edition, available
at: http://www.azgfd.gov/regs/HuntArizona2012.pdf) and the New Mexico
Department of Game and Fish (Harvest Information, available at: http://www.wildlife.state.nm.us/recreation/hunting/).
Using this information, we determined that white-tailed deer and
javelina (the preferred prey of the jaguar in the northwesternmost part
of its range) have been present in each critical habitat unit
(described in Final Critical Habitat Designation, below) in Arizona for
at least 50 years, and have been successfully hunted in each hunt unit
overlapping jaguar critical habitat for the same period of time (Game
Management Units 30A, 34A, 34B, 35A, 35B, 36A, 36B, and 36C).
Historical harvest information from New Mexico is not as readily
available; however, based on the most recent harvest information,
white-tailed deer and javelina are available in Unit 5 of jaguar
critical habitat (Game Management Unit 27), and are likely available in
Unit 6 (both described in Final Critical Habitat Designation, below) of
jaguar critical habitat (Game Management Unit 26; we can determine that
javelina have been successfully harvested in this Game Management Unit,
but this particular unit lumps all deer together, so we are unable to
distinguish hunt success between mule deer and white-tailed deer).
Therefore, while we were unable to map prey distribution within Arizona
and New Mexico, we believe adequate levels of prey are available, and
have been available for at least 50 years in Arizona.
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 at least one undisputed Class I record of
a jaguar from 1962 through September 11, 2013 (Table 1 in the ``Class I
Records'' section, above). 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-km\2\ (0.4-mi\2\)
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 did not meet the minimum size
criterion of 100 km\2\ (38.6 mi\2\) when added

[[Page 12591]]

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 HII was 20 or
more (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-km\2\ (0.4-mi\2\) 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 less than 20 (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
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. We also removed
areas above 2,000 m (6,562 ft) (PCE 6). Small areas of 1 km\2\ (0.4
mi\2\) 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. For the same
reason, we also removed small areas of 1 km\2\ (0.4 mi\2\) or less (our
tolerance buffer as described above) around the edges of the polygons
if, due to the steps described above, they were disconnected or
connected only by corners.
(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 connected
directly to Mexico.
Therefore, we are designating six units based on sufficient
elements of the essential 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
within the Northwestern Recovery Unit.
When determining critical habitat boundaries within this final
rule, 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 final rule have been
excluded by text in the rule and are not designated as critical
habitat. Therefore, a Federal action involving these lands will 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 designating
critical habitat lands that we have determined may have been 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 that may have been occupied at the time of listing that we have
determined are also essential. In our analysis we also evaluated the
areas we consider occupied at the time of listing and determined 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 (see Areas Essential for the Conservation of Jaguars, above).
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0042, and at the field
office responsible for the designation (see FOR FURTHER INFORMATION
CONTACT above).

Final Critical Habitat Designation

We are designating 6 units as critical habitat for the jaguar. The
critical habitat areas described below constitute our best assessment
at this time of areas that meet the definition of critical habitat.
Those 6 units 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, Empire, and Huachuca Mountains, and the Canelo
and Grosvenor 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 2 lists both the unoccupied units and
those that may have been occupied at the time of listing.

Table 2--Occupancy of Jaguar by Designated Critical Habitat Units
------------------------------------------------------------------------
Occupied at time of
Unit 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 No.
Connection
2--Atascosa Unit:

[[Page 12592]]

Tumacacori Mountains Yes.
Atascosa Mountains Yes.
Pajarito Mountains Yes.
3--Patagonia Unit:
Empire Mountains Yes.
Santa Rita Mountains Yes.
Grosvenor Hills 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 No.
Connection
4c--Whetstone-Huachuca Subunit:
Whetstone-Huachuca Mountains No.
Connection
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 critical habitat unit is shown in
Table 3.

Table 3--Designated Critical Habitat Units for Jaguar
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal State Tribal Private Total
Unit or subunit ---------------------------------------------------------------------------------------------------
Ha Ac Ha Ac Ha Ac Ha Ac Ha Ac
--------------------------------------------------------------------------------------------------------------------------------------------------------
1a--Baboquivari-Coyote Subunit...................... 4,396 10,862 9,239 22,831 0 0 3,290 8,130 16,925 41,823
1b--Southern Baboquivari Subunit.................... 624 1,543 6,157 15,213 0 0 1,843 4,555 8,624 21,312
2--Atascosa Unit.................................... 53,807 132,961 2,296 5,672 0 0 2,522 6,231 58,625 144,865
3--Patagonia Unit................................... 101,354 250,452 11,847 29,274 0 0 29,046 71,775 142,248 351,501
4a--Whetstone Subunit............................... 16,066 39,699 5,445 13,455 0 0 3,774 9,325 25,284 62,479
4b--Whetstone-Santa Rita Subunit.................... 532 1,313 4,612 11,396 0 0 0 0 5,143 12,710
4c--Whetstone-Huachuca Subunit...................... 1,350 3,336 2,981 7,366 0 0 3,391 8,379 7,722 19,081
5--Peloncillo Unit.................................. 28,393 70,160 7,861 19,426 0 0 5,317 13,138 41,571 102,724
6--San Luis Unit.................................... 0 0 0 0 0 0 3,122 7,714 3,122 7,714
---------------------------------------------------------------------------------------------------
Grand Total..................................... 206,522 510,326 50,437 124,633 0 0 52,304 129,247 309,263 764,207
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.

Unit 1: Baboquivari Unit

Subunit 1a--Baboquivari-Coyote Subunit: Subunit 1a consists of
16,925 ha (41,823 ac) in the northern Baboquivari, Saucito, Quinlan,
and Coyote Mountains in Pima County, Arizona. The main, larger section
of this subunit is generally bounded by the eastern boundary of the
Tohono O'odham Nation to the west and north, the western side of the
Altar Valley to the east, and up to and including Leyvas Canyon and
Three Peaks to the south. There are four small areas of land that are
disconnected from the main section of this subunit. One is a privately
owned area within the boundaries of the Tohono O'odham Nation
approximately 4 km (2.5 mi) west of the main, largest section and
approximately 22.7 km (14.1 mi) south of State Highway 86. The second
largest area is almost directly north of the main, largest section and
is primarily Federally and State owned, with a small amount of private
land included within the boundary. Between this area and the main,
largest section is a small piece of State land included within the
boundary. The last area is north and slightly west of the main section,
and is a privately owned area within the boundaries of the Tohono
O'odham Nation. Land ownership within the entire unit includes
approximately 4,396 ha (10,862 ac) of Federal lands; 9,239 ha (22,831
ac) of Arizona State lands; and 3,290 ha (8,130 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) (see ``Occupied Area at
the Time of Listing'' section, above), and it may be currently
occupied, based on jaguar photos from 1996 and from 2001-2008 (see
Table 1 in the ``Class I Records'' section, above). It contains all

[[Page 12593]]

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. Activities that may
require special management may include, for example, habitat clearing,
the construction of facilities, expansion of linear projects that may
fragment jaguar habitat, some fuels-management activities, and some
prescribed fire.
Subunit 1b--Southern Baboquivari Subunit: Subunit 1b consists of
8,624 ha (21,312 ac) in the southern Baboquivari Mountains in Pima
County, Arizona. This subunit is generally bounded by the eastern
boundary of the Tohono O'odham Nation to the west, up to but not
including Leyvas and Bear Canyons to the north, the western side of the
Altar Valley to the east, and the U.S.-Mexico border to the south.
There is one small, privately owned area within the boundaries of the
Tohono O'odham Nation that is disconnected from the main section of
this subunit. It is located approximately 1.2 km (0.75 mi) west of the
main, largest section and approximately 10 km (6.2 mi) north of the
U.S.-Mexico border. Land ownership within the unit includes
approximately 624 ha (1,543 ac) of Federal lands; 6,157 ha (15,213 ac)
of Arizona State lands; and 1,843 ha (4,555 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.
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 58,625 ha (144,865 ac) in the Pajarito,
Atascosa, and Tumacacori Mountains in Pima and Santa Cruz Counties,
Arizona. Unit 2 is generally bounded by the eastern side of San Luis
Mountains (Arizona) to the west, roughly 4 km (2.5 mi) south of 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 53,807 ha (132,961 ac) of Federal lands; 2,296 ha (5,672
ac) of Arizona State lands; and 2,522 ha (6,231 ac) of private lands.
The Federal land is administered by the Coronado National Forest and
Bureau of Land Management. We consider the Atascosa Unit occupied at
the time of listing (37 FR 6476; March 30, 1972) (see ``Occupied Area
at the Time of Listing'' section, above), and it may be currently
occupied based on multiple photos of two, or possibly three, jaguars
from 2001-2008 (see Table 1 in the ``Class I Records'' section, above).
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 land 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. Activities that may require special management may include,
for example, habitat clearing, the construction of facilities,
expansion of linear projects that may fragment jaguar habitat, some
fuels-management activities, and some prescribed fire.

Unit 3: Patagonia Unit

Unit 3 consists of 142,248 ha (351,501 ac) in the Patagonia, Santa
Rita, Empire, and Huachuca Mountains, as well as the Canelo and
Grosvenor Hills, in Pima, Santa Cruz, and Cochise Counties, Arizona.
Unit 3 is generally bounded by a line running roughly 3 km (1.9 mi)
east of Interstate 19 to the west; a line running roughly 6 km (3.7 mi)
south of Interstate 10 to the north; Cienega Creek and Highways 83, 90,
and 92 to the east, including the eastern slopes of the Empire
Mountains; and the U.S.-Mexico border to the south. Land ownership
within the unit includes approximately 101,354 ha (250,452 ac) of
Federal lands; 11,847 ha (29,274 ac) of Arizona State lands; and 29,046
ha (71,775 ac) of private lands. The Federal land is administered by
the Coronado National Forest, Bureau of Land Management, and National
Park Service. 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 (see ``Occupied Area at the Time of Listing''
section, above) and currently occupied based on photos taken from
October 2012, through September 11, 2013, of a male jaguar in the Santa
Rita Mountains (see Table 1 in the ``Class I Records'' section, above).
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 Federal land 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. Activities that may require special management may include,
for example, habitat clearing, the construction of facilities,
expansion of linear projects that may fragment jaguar habitat, some
fuels-management activities, and some prescribed fire.

Unit 4: Whetstone Unit

Subunit 4a--Whetstone Subunit: Subunit 4a consists of 25,284 ha
(62,479 ac) in the Whetstone Mountains, including connections to the
Santa Rita and Huachuca Mountains, in Pima, Santa Cruz, and Cochise
Counties, Arizona. Subunit 4a is generally bounded by a line running
roughly 4 km (2.5 mi) east of Cienega Creek to the west, a line running
roughly 6 km (3.7 mi) south of Interstate 10 to the north, Highway 90
to the east, and Highway 82 to the south. Land ownership within the
subunit includes approximately 16,066 ha (39,699 ac) of Federal lands;
5,445 ha (13,455 ac) of Arizona State lands; and 3,774 ha (9,325 ac) of
private lands. The Federal land is administered by the Coronado
National Forest and Bureau of Land Management. We consider the
Whetstone Subunit 4a occupied at the time of listing (37 FR 6476; March
30, 1972) (see ``Occupied Area at the Time of Listing'' section,
above), and, based on photographs taken in 2011, it may be currently
occupied (see Table 1 in the ``Class I Records'' section, above). 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 land
management activities, grazing, and recreational activities throughout
the year, including, but not limited to, hiking, camping, birding,
horseback riding, picnicking, sightseeing, and hunting. Activities that
may require special management may include, for example, habitat
clearing, the construction of facilities, expansion of linear projects
that may fragment jaguar habitat, some fuels-management activities, and
some prescribed fire.
Subunit 4b--Whetstone-Santa Rita Subunit: Subunit 4b consists of
5,143 ha (12,710 ac) between the Empire Mountains and northern extent
of the Whetstone Mountains in Pima County,

[[Page 12594]]

Arizona. Subunit 4b is generally bounded by (but does not include): The
eastern slopes of the Empire Mountains to the west, a line running
roughly 6 km (3.7 mi) south of Interstate 10 to the north, the western
slopes of the Whetstone Mountains to the east, and Stevenson Canyon to
the south. Land ownership within the subunit includes approximately 532
ha (1,313 ac) of Federal lands and 4,612 ha (11,396 ac) of Arizona
State 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.
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
7,722 ha (19,081 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, Elgin-Canelo Road, and
Upper Elgin Road to the west; Highway 82 to the north; a line running
roughly 4 km (2.5 mi) west of Highway 90 to the east; and up to but not
including the Huachuca Mountains to the south. Land ownership within
the subunit includes approximately 1,350 ha (3,336 ac) of Federal
lands; 2,981 ha (7,366 ac) of Arizona State lands; and 3,391 ha (8,379
ac) of private lands. The Federal land is administered by the Coronado
National Forest and Bureau of Land Management. 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.
The primary land uses within Subunit 4c 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.

Unit 5: Peloncillo Unit

Unit 5 consists of 41,571 ha (102,724 ac) in the Peloncillo
Mountains in Cochise County, Arizona, and Hidalgo County, New Mexico.
Unit 5 is generally bounded by the eastern side of the San Bernardino
Valley to the west, Skeleton Canyon Road and the northern boundary of
the Coronado National Forest to the north, the western side of the
Animas Valley to the east, and the U.S.-Mexico border on the south.
Land ownership within the unit includes approximately 28,393 ha (70,160
ac) of Federal lands; 7,861 ha (19,426 ac) of Arizona State lands; and
5,317 ha (13,138 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) (see ``Occupied Area at the Time of Listing''
section, above), and it may be currently occupied based on a track
documented in 1995 and photographs taken in 1996 (see Table 1 in the
``Class I Records'' section, above). 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 land 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. Activities that may require special management may include,
for example, habitat clearing, the construction of facilities,
expansion of linear projects that may fragment jaguar habitat, some
fuels-management activities, and some prescribed fire.

Unit 6: San Luis Unit

Unit 6 consists of 3,122 ha (7,714 ac) in the northern extent of
the San Luis Mountains in Hidalgo County, New Mexico. Unit 6 is
generally bounded by the eastern side of the Animas Valley to the west,
a line running roughly 1.5 km (0.9 mi) south of Highway 79 to the
north, an elevation line at approximately 1,600 m (5,249 ft) on the
east side of the San Luis Mountains, and the U.S.-Mexico border to the
south. Land within the unit is entirely privately owned. We consider
the San Luis Unit occupied at the time of listing (37 FR 6476; March
30, 1972) (see ``Occupied Area at the Time of Listing'' section,
above), and it may be currently occupied based on photographs taken in
2006 (see Table 1 in the ``Class I Records'' section, above). Unit 6
contains almost all elements of the physical or biological feature
essential to the conservation of the jaguar except for expansive open
space of at least 100 km\2\ (38.6 mi\2\). This unit is included
because, while by itself it does not provide at least 100 km\2\ (38.6
mi\2\) 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. Activities that may require special management may include,
for example, habitat clearing, the construction of facilities,
expansion of linear projects that may fragment jaguar habitat, some
fuels-management activities, and some prescribed fire.

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

[[Page 12595]]

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 and
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 (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 not likely to adversely affect
critical habitat and do not require formal consultation if the Service
concurs in writing with that Federal action agency determination.
Examples of these actions may include some fuels-management activities,
prescribed fire, or closing and re-vegetating roads.
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 either,
although due to the adverse effects, these actions may require formal
consultation. We anticipate that actions consistent with the stated
goals or recovery actions of the Recovery Outline for the Jaguar
(Jaguar Recovery Team 2012, entire) 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 feature 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

[[Page 12596]]

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 that may fragment jaguar habitat and
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, entire) 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 jaguar critical habitat. We are aware of two
large-scale mining operations. One is the Rosemont Mine that has been
evaluated within jaguar revised proposed critical habitat (this
consultation was completed prior to this final rule designating
critical habitat). We have evaluated this project through the section 7
consultation process, and our determination is that it does not
constitute destruction or adverse modification of jaguar critical
habitat. The other is the Hermosa Mine, but this project is only in the
planning phase and the Service has not received mine development plans.
Consequently, section 7 consultation has not been initiated.
We are aware of two large-scale mining operations. One is the
Rosemont Mine that has been evaluated within jaguar revised proposed
critical habitat (this consultation was completed prior to this final
rule designating critical habitat). We have evaluated this project
through the section 7 consultation process, and our determination is
that it does not constitute destruction or adverse modification of
jaguar critical habitat. The other is the Hermosa Mine but this is only
in the planning phase and the Service has not received mine development
plans. Consequently, section 7 consultation has not been initiated.

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 geographical 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.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
critical habitat designation for the jaguar to determine if they meet
the criteria for exemption from critical habitat under section 4(a)(3)
of the Act. The following areas are Department of Defense lands with
completed, Service-approved INRMPs within the final critical habitat
designation.

Approved INRMPs

Fort Huachuca--Unit 3 and Subunit 4c, Arizona
Fort Huachuca is located in Cochise County, in southeast Arizona,
about 24 km (15 mi) north of the border with Mexico. Fort Huachuca is
home to the U.S. Army Intelligence Center and the U.S. Army Network
Enterprise Technology Command (NETCOM)/9th Army Signal Command. There
are approximately of 6,421 ha (15,867 ac) of critical habitat on Fort
Huachuca. Approximately 6,117 ha (15,115 ac) are in Unit 3, and
approximately 304 ha (752 ac) are in Subunit 4c.
Habitat features essential to jaguar conservation exist on Fort
Huachuca. Nearly 95 percent of the activities on Fort Huachuca are
military intelligence and communications systems testing and training.
Other activities on the installation include field-training exercises,
aviation activities, live-fire qualification and training, vehicle
maneuver training, and administrative and support activities. Fort
Huachuca's military mission is not heavily land-based. Generally,
direct and repeated impacts have been restricted to localized areas.
Fort Huachuca has an approved INRMP, completed in 2002 and updated in
2013 to specifically address the jaguar. Appendix 7 was added to focus
on specific benefits of the INRMP to federally listed species,
including the jaguar. Appendix 7 outlines how INRMP management actions
provide conservation benefits for the jaguar. These actions include:
ecosystem and hunting management intended to ensure adequate jaguar
prey; water resource protection measures; fire management activities
that maintain canopy cover; prohibition of recreation at night;
briefings on threatened and endangered species; and a cooperative
relationship with the University of Arizona's Wild Cat Research and
Conservation Center. The U.S. Army is committed to working closely with
the Service and Arizona Game and Fish Department to continually refine
the existing INRMP as part of the Sikes Act's INRMP review process.
Based on our review of the INRMP for this military installation, and in
accordance with section 4(a)(3)(B)(i) of the Act, we

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have determined that the portion of Unit 3 and Subunit 4c within this
installation, identified as meeting the definition of critical habitat,
is subject to the INRMP, and that conservation efforts identified in
this INRMP will provide a benefit to the jaguar. Therefore, lands
within this installation are exempt from critical habitat designation
under section 4(a)(3)(B) of the Act.
Fort Huachuca's 2013 INRMP includes benefits for jaguars and their
habitat that were not included in their previous INRMP. The INRMP
protects the PCEs, through:
(1) Providing connectivity to Mexico
a. Providing connectivity to Mexico through lands owned by the Fort
by maintaining wildlife-permeable fencing around the perimeter of the
Fort;
b. Minimal training and testing occurring in the rugged areas of
the Huachuca Mountains because the vast majority of training and
testing can effectively be conducted elsewhere (access to the mountains
is limited by rugged topography and single lane, four-wheel drive dirt
roads);
c. Maintaining large open areas in the mountains on the Fort by
avoiding construction activities in those areas;
d. Developing partnerships to protect land and natural resources
beyond the installation and across administrative boundaries;
i. Obtaining conservation easements on private lands from private
landowners within the Sierra Vista subwatershed (an area of
approximately 6,475 km\2\ (2,500 mi\2\) in size containing the Fort,
City of Sierra Vista, Huachuca City, and most of the San Pedro Riparian
National Conservation Area) to reduce the potential for incompatible
land use by buffering agricultural and undeveloped areas under airspace
and to manage the regional water table adjacent to the San Pedro
Riparian National Conservation Area through the Army Compatible Use
Buffer Program.
(2) Containing adequate levels of native prey
a. Employing an ecosystem management approach benefiting all native
species, including jaguars and their prey;
b. Coordinating with the Arizona Game and Fish Department to limit
the number of deer and javelina hunting permits issued within the
Fort's boundaries to ensure adequate prey are available for the top
predators known to occur on the installation.
(3) Including surface water sources within 20 km (12.4 mi) of one
another:
Managing pond and spring habitat on the installation for threatened
and endangered species, especially where habitat has been degraded or
lost or where potential exists for improving habitat.
(4) Containing greater than 1 percent to 50 percent canopy cover
a. Coordinating on prescribed fire and fuel management activities
in the Huachuca Mountains with the U.S. Forest Service, State Parks,
State Lands, The Nature Conservancy, San Pedro National Conservation
Area, Audubon Research Ranch, and private ranchers, and as specified in
the Fort's Integrated Wildland Fire Management Plan such that natural
fire regimes will eventually be restored;
b. Managing invasive species to protect natural resources and
critical habitat for threatened and endangered species.
(5) Characterized by intermediately, moderately, or highly rugged
terrain:
No activities occurring or planned to occur in the mountains
affecting or altering the terrain.
(6) Characterized by minimal to no human population
a. Controlling human activity and road/infrastructure development
in potential jaguar habitat (no major roads occur within the
installation);
b. Closing all canyons within the Huachuca Mountains to
recreational use between sunset and sunrise (the most active time for
jaguars);
c. Minimizing impacts from field training activities by conducting
these activities outside of mountainous areas, except for a minimal
amount of equipment testing along roadsides;
d. Providing environmental awareness training to Special Forces
units that occasionally request conducting patrolling training in the
mountains to minimize their impact on jaguars and jaguar habitat;
e. Maintaining dark skies in mountainous areas within the
installation;
f. Minimizing impacts from low-level helicopter and Unmanned Aerial
Systems flights (the predominant types of flights conducted over the
Fort) by avoiding them over the Huachuca Mountains at altitudes below
152 m (500 ft) above ground level, except for life, health and safety
purposes.
(7) Providing additional ongoing activities benefiting the jaguar
a. Cooperating with the University of Arizona's Wild Cat Research
and Conservation Center to permit surveying and monitoring for the
jaguar on the installation;
b. Providing threatened and endangered species awareness training
to troops [in safety briefings];
c. Completing game species management plans (including hunting);
d. Installing and maintaining all-weather signs along the single-
lane dirt roads within Huachuca and Garden Canyons, and their tributary
canyons with trails, that inform visitors that the Canyon is home to
sensitive species and require visitors to stay on trails and be as
quiet and unobtrusive as possible;
e. Ensuring that no seeding/planting of nonnative grasses or other
plants will occur on the installation that may alter fire frequencies
in the wildland areas;
f. Employing an adaptive management framework providing natural
resources management at the ecosystem level.
Implementation of these activities on the Fort is currently
conducted in a manner that minimizes impacts to jaguars and their
habitat. This military installation has an approved INRMP that provides
a benefit to the jaguar, and Fort Huachuca has committed to work
closely with the Service and the State wildlife agency to continually
refine their existing INRMP as part of the Sikes Act's INRMP review
process.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts
identified in the 2013 INRMP for Fort Huachuca provide a benefit to the
jaguar and its habitat. Therefore, lands subject to the INRMP for Fort
Huachuca, which includes the lands leased from the Department of
Defense by other parties, are exempt from critical habitat designation
under section 4(a)(3) of the Act, and we are not including
approximately 6,117 ha (15,115 ac) of Unit 3 and approximately 304 ha
(752 ac) in Subunit 4c for a total of 6,421 ha (15,867 ac) in this
final critical habitat designation because of this exemption.

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 she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she determines, based
on the best scientific 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

[[Page 12598]]

which factor(s) to use and how much weight to give to any factor.
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 her discretion to exclude the area only if such exclusion
would not result in the extinction of the species.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
The principal benefit of including an area in a critical habitat
designation is the requirement for Federal agencies to ensure actions
they fund, authorize, or carry out are not likely to result in the
destruction or adverse modification of any designated critical habitat,
the regulatory standard of section 7(a)(2) of the Act under which
consultation is completed. Federal agencies must also consult with us
on actions that may affect a listed species to ensure their proposed
actions are not likely to jeopardize the continued existence of such
species. The analysis of effects to critical habitat is a separate step
and different standard from that of the effects to the species.
Therefore, the difference in outcomes of these two analyses represents
the regulatory benefit of critical habitat.
The two regulatory standards are different and, significantly, the
factors that are reviewed under each standard are different as well.
The jeopardy analysis investigates the action's impact to survival and
recovery of the species with a focus on how the action affects
attributes such as numbers, distribution, and reproduction of the
species. On the other hand, the adverse-modification analysis
investigates the action's effects to the designated habitat's
contribution to recovery with a focus on the conservation role the
habitat plays for the listed species. This difference in the two
consultation standards and focus of review, in some instances, will
lead to different conclusions. Thus, critical habitat designations may
provide greater benefits to the recovery of a species than would
listing alone because it will provide another and alternative focus on
factors affecting listed species. Nonetheless, for many species (in at
least some locations) the outcome of these analyses in terms of any
required habitat protections will be similar because effects to habitat
will often also result in effects to the species.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area due to the
continuation, strengthening, or encouragement of partnerships, or
implementation of a management plan that provides equal to or more
conservation than a critical habitat designation would provide.
In the case of the jaguar, the benefits of critical habitat include
public awareness of jaguar presence and the importance of habitat
protection, and in cases where a Federal nexus exists, increased
habitat protection for the jaguar due to the protection from adverse
modification or destruction of critical habitat. In practice, a Federal
nexus exists primarily on Federal lands or for projects undertaken,
permitted, or funded by Federal agencies. Since jaguars were listed in
1972, we have had no projects on privately owned lands that had a
Federal nexus to trigger formal consultation under section 7 of the
Act. On Federal lands, we have been consulting with Federal agencies on
their effects to jaguar since jaguars were listed.
When we evaluate the existence of a conservation plan when
considering the benefits of exclusion, we consider a variety of
factors, including but not limited to, whether the plan is finalized;
how it provides for the conservation of the essential physical or
biological features; whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan will be implemented into the future; whether the
conservation strategies in the plan are likely to be effective; and
whether the plan contains a monitoring program or adaptive management
to ensure that the conservation measures are effective and can be
adapted in the future in response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction. If exclusion of an area from critical habitat will result
in extinction, we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments we received, we evaluated
whether certain lands in the proposed critical habitat were appropriate
for exclusion from this final designation pursuant to section 4(b)(2)
of the Act. We are excluding approximately 20,764 ha (51,308 ac) of
Tohono O'odham Nation land in Subunit 1a and approximately 10,829 ha
(26,759 ac) of Tohono O'odham Nation land in Subunit 1b from the final
designation of critical habitat (see Exclusions Based on Other Relevant
Impacts below).

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 prepared a draft economic analysis of the
proposed critical habitat designation and related factors (78 FR 39237;
July 1, 2013). The draft economic analysis, dated May 2013, was made
available for public review from July 11, 2013, through August 9, 2013
(78 FR 39237; July 1, 2013), and again from August 29, 2013, through
September 13, 2013 (78 FR 53390; August 29, 2013). Following the close
of the comment period, a final analysis (dated January 15, 2014) of the
potential economic effects of the designation was developed taking into
consideration the public comments and any new information (IEc 2014).
The intent of the final economic analysis is to quantify the
economic impacts of all potential conservation efforts for the jaguar;
some of these costs will likely be incurred regardless of whether we
designate critical habitat. The economic impact of the final critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.'' The ``without
critical habitat'' scenario represents the baseline for the analysis,
considering protections already in place for the species (e.g., under
the Federal listing and other Federal, State, and local regulations).
The baseline, therefore, represents the costs incurred regardless of
whether critical habitat is designated. The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts are those not expected to
occur absent the designation of critical habitat for the species. In
other words, the incremental costs are those attributable solely to the
designation of critical habitat above and

[[Page 12599]]

beyond the baseline costs; these are the costs we consider in the final
designation of critical habitat. The analysis looks retrospectively at
baseline impacts incurred since the species was listed, and forecasts
both baseline and incremental impacts likely to occur with the
designation of critical habitat. For a further description of the
methodology of the analysis, see Chapter 2, Framework for the Analysis
of the economic analysis.
The final economic analysis also addresses how potential economic
impacts are likely to be distributed, including an assessment of any
local or regional impacts of habitat conservation and the potential
effects of conservation activities on government agencies, private
businesses, and individuals. The final economic analysis evaluates
potential lost economic efficiency associated with residential and
commercial development and public projects and activities, such as
economic impacts on water management and transportation projects,
Federal lands, small entities, and the energy industry. Decision-makers
can use this information to assess whether the effects of the
designation might unduly burden a particular group or economic sector.
Finally, the final economic analysis considers those costs that may
occur in the 20 years following the designation of critical habitat,
which was determined to be the appropriate period for analysis because
limited planning information was available for most activities to
forecast activity levels for projects beyond a 20-year timeframe.
The final economic analysis quantifies economic impacts of jaguar
conservation efforts associated with the following categories of
activity: (1) Federal land management; (2) border protection
activities; (3) mining; (4) transportation activities; (5) private
residential or commercial development; (6) military activities; (7)
livestock grazing and other activities; (8) Tohono O'odham Nation
activities; and (9) other limited activities. Given the secretive and
transient nature of the jaguar, which makes it difficult to determine
whether a particular area is used by jaguars, Federal land managers
already take steps to protect the jaguar even without critical habitat
by consulting under section 7 jeopardy standards. We do not anticipate
recommending incremental conservation measures to avoid adverse
modification of critical habitat over and above those recommended to
avoid jeopardy of the species, except in cases where an activity could
create a situation in which a unit of critical habitat could become
inaccessible to jaguars. Major construction projects (such as new
highways, significant widening of existing highways, or construction of
large facilities or mines) could sever connectivity within these
critical habitat units and subunits and could constitute adverse
modification. Estimated baseline costs range from $2.8 million to $3.9
million in the first 20 years, with a seven and three percent discount
rate, respectively. The total potential incremental economic impacts
for all of the categories in areas proposed as revised critical habitat
over the next 20 years range from $4.2 million to $5.6 million
($370,000 to $370,000 annualized), assuming a seven and three percent
discount rate, respectively. The analysis estimates future potential
administrative impacts based on the historical rate of consultations on
the jaguar in areas proposed for critical habitat, as discussed in
Chapter 2 of the final economic analysis. A brief summary of the
estimated impacts within each category is provided below. Please refer
to the final economic analysis for a comprehensive discussion of the
potential impacts.
Since the jaguar is currently a listed species under the Act,
baseline efforts are likely already undertaken to protect the jaguar.
In addition, efforts to protect other endangered and threatened species
in the area, and the implementation of general conservation measures by
land managers likely also provide protection for jaguars. Depending on
the discount rate applied, we estimate that these baseline costs will
range from $2.8 million and $3.9 million in the first 20 years, with a
seven and three percent discount rate, respectively. On an annualized
basis, baseline impacts are likely to range from $240,000 to $250,000
depending on the discount rate assumption. Additionally, many baseline
measures that benefit the jaguar, such as maintenance of habitat and
open space, conservation measures for other species, monitoring, and
more are not quantified in this analysis due to a lack of cost data on
these actions.
Federal Land Management--The U.S. Bureau of Land Management (BLM),
U.S. Forest Service (USFS), U.S. National Park Service (NPS), and
Service land managers in proposed critical habitat areas state that
they already consider potential impacts to jaguar when conducting
activities within these areas. As such, quantified costs are limited to
administrative costs of consultation. Using a seven percent discount
rate, baseline costs are $200,000, or $18,000 annualized (2013
dollars), and incremental costs are $180,000, or $16,000 annualized
(2013 dollars).
Border Protection--U.S. Customs and Border Protection (CBP) reports
that the agency already considers potential impacts of its operations
on jaguar in all critical habitat units. Under section 102 of the
Illegal Immigration Reform and Immigrant Responsibility Act, 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. However, the CBP does not always waive compliance with
the ESA and does engage in section 7 consultation with the Service.
The CBP does not currently anticipate that planned activities in
critical habitat areas will cause permanent changes to landscape or
sever connectivity to Mexico. Furthermore, the CBP does not anticipate
that jaguar critical habitat will change the outcome of future section
7 consultations regarding jaguar and its habitat associated with border
operations in critical habitat areas. As such, quantified incremental
costs are limited to administrative costs of consultation. Incremental
costs, which are estimated to include the additional administrative
costs of considering critical habitat in consultation, are anticipated
to be $17,000, or $1,500 annualized. While specific future conservation
efforts are unknown, we utilize available data on past conservation
efforts to estimate that CBP will spend approximately $48,000 per year
on jaguar monitoring efforts, as well as $312,000 per consultation on
other actions. Using the past consultation as a guide to the number of
future actions, we anticipated that in total, using a seven percent
discount rate, baseline costs will be $770,000 over 20 years, or
$68,000 annualized (2013 dollars), related to approximately two formal
consultations over the next 20 years. Incremental costs, which are
estimated to include the additional administrative costs of considering
critical habitat in consultation, are anticipated to be $17,000, or
$1,500 annualized (2013 dollars).
Mining--Incremental project modifications beyond what would have
been recommended under the baseline to avoid jeopardy are generally
unlikely, unless a project is likely to permanently alter habitat or
sever connectivity to Mexico. The Service and a number of land managers
agree that few changes to recommendations resulting from consultations
in response to critical habitat designation are expected because mining
activity generally occurs

[[Page 12600]]

in Unit 3, which is considered occupied by the jaguar. However, to the
extent that additional conservation efforts are undertaken for critical
habitat, estimates of incremental impacts would be understated in the
econcomic analysis.
Overall, baseline costs are estimated at $1.2 million ($110,000 on
an annualized basis), of which $66,000 ($5,800 on an annualized basis)
are administrative impacts. Most of these costs are likely to occur as
a result of baseline conservation measures implemented for the
protection of the jaguar, such as road-kill monitoring and the
minimization of nighttime lighting; however, we are unable to fully
quantify those costs. Although they are included in the baseline
estimates where possible, some of these baseline conservation measures
are intended to benefit multiple species, and therefore only a portion
of these costs may be attributed to conservation of the jaguar.
There are two large-scale mining projects proposed in critical
habitat Unit 3, the Rosemont Copper Project and the Hermosa Project, as
well as smaller-scale mineral exploration projects. Forecast
incremental economic impacts associated with mining operations include
costs of addressing adverse modification of critical habitat in the
context of a section 7 consultation, as well as costs of implementing
associated conservation measures. The incremental analysis forecasts
$3.9 million ($340,000 on an annualized basis) in present-value impacts
associated with all of the aforementioned mining activities, of which
$22,000 ($1,900 annually) are administrative costs.
In October 2013, the Service completed a biological opinion and
conference opinion with the U.S. Forest Service providing Federal
approval of the Rosemont Mine. The biological opinion concluded that
the Rosemont Mine would not constitute jeopardy to the jaguar. A
conference opinion was also completed to address the impacts of the
Rosemont Mine to the then-proposed critical habitat designation for
jaguar, which concluded that the mining operation is not likely to
destroy or adversely modify jaguar critical habitat.
The Rosemont Mine is located in a unit of critical habitat that is
occupied by the jaguar. Since the jaguar is currently a listed species,
conservation efforts are already undertaken to avoid jeopardy to the
species in this area and, therefore, the economic impacts are
predominantly captured in the baseline. Through our evaluation of
impacts of the critical habitat designation, we determined that most of
the conservation efforts are not a result of the critical habitat
designation itself, but rather a result of the jaguar being a listed
species, and, therefore, incremental impacts of the critical habitat
designation are largely limited to transactional costs. As a result,
the incremental impact, economic or from other relevant factors, of the
designation on the mine is expected to be minimal.
Forecast conservation measures are primarily associated with
conservation efforts in the biological opinion issued for the Rosemont
Mine in October 2013, which includes multiple species in addition to
the jaguar. We note that costs associated with incremental project
modifications for the Rosemont Mine are included, to the extent that
cost information was available. In addition, incremental costs may be
associated with conservation measures such as restoration of surface
springs and revegetation, but information on the incremental costs of
these measures was not available. The conference opinion notes that
some of these efforts, including the management of conservation lands,
will be undertaken to benefit multiple species, in addition to the
jaguar. Therefore, these costs may overstate the incremental impacts of
jaguar critical habitat designation alone.
Transportation--Arizona Department of Transportation (ADOT) already
considers potential impacts of its projects on jaguar in the three
Arizona counties where critical habitat for the jaguar is proposed. No
major roads intersect the proposed critical habitat area in New Mexico.
While the construction of new roads has the potential to sever
connectivity of jaguar habitat, no such projects are planned in
critical habitat areas in the foreseeable future. We estimate that
approximately two formal consultations and seven technical assistance
efforts will occur related to minor transportation projects over the
next 20 years in the critical habitat areas. Incremental costs are
estimated to be $5,900, or $520 annualized (2013 dollars). Baseline
costs are estimated at $390,000, or $34,000 annualized (2013 dollars),
discounted at seven percent.
Private Residential or Commercial Development--The vast majority of
the 129,246 acres of privately owned lands designated as jaguar
critical habitat are rural and fall outside of any major urban areas.
County planners state that these areas are unlikely to be developed in
the foreseeable future, with the exception of areas around Patagonia,
Santa Cruz County, Arizona, (population as of 2010 was 3,213 U.S.
Census Bureau) in Unit 3 and on the eastern border of Unit 2. However,
even if these areas are developed, there are unlikely to be any Federal
permits or Federal funding for development activities in the privately
owned areas designated as jaguar critical habitat. While local ranchers
do take advantage of Natural Resources Conservation Service (NRCS)
programs, these programs are not expected to play a role in development
activities. As such, future consultations related to residential and
commercial development activities are not currently anticipated in the
critical habitat areas. No incremental impacts of critical habitat
designation on residential or commercial development are forecast.
Military--While the jaguar has not recently been documented at Fort
Huachuca in Unit 3 and Subunit 4c, the Department of Defense (DOD) is
aware that the species can be present and has incorporated the species
into its management planning. Both baseline and incremental costs are
limited to the administrative costs of consultation. Using a seven
percent discount rate, baseline costs are estimated to be $10,000, or
$900 annualized over the next 20 years (2013 dollars), and incremental
costs are $20,000, or $1,700 annualized (2013 dollars).
Grazing--In general, most private and State lands in the designated
critical habitat areas for the jaguar are currently used for
agricultural production, most commonly for livestock grazing. These
activities do not typically require Federal permitting or funding for
operation. However, many ranchers receive some funding from NRCS, often
for conducting range improvements or conservation activities. While
consultations on NRCS activities are rare, several public commenters as
well as NRCS have noted that some ranchers may withdraw applications
for NRCS funding following jaguar critical habitat in order to avoid
any potential obligations related to consultations between NRCS and the
Service. Total administrative baseline impacts to grazing and
agriculture are $14,000, or $1,200 annualized over the next 20 years
(2013 dollars). Incremental costs, including administrative costs of
consultation, are $24,000, or $2,100 annualized over the next 20 years
(2013 dollars).
Tribal Activities--Due to the trust relationship between the United
States and Native Americans, a significant number of Tribal activities
involve Federal funding or oversight that serve as a nexus for section
7 consultation. Therefore, where critical habitat is designated on
Tribal lands, many projects will have a Federal nexus for section 7
consultation. Communication with the Tohono O'odham Nation did not
identify any specific, planned projects that may result in section 7

[[Page 12601]]

consultation. We are also not aware of any previous section 7
consultations regarding activities on Tohono O'odham Nation lands.
However, given the likelihood of a Federal nexus and the proposal to
designate unoccupied critical habitat on Tohono O'odham lands, the
Tohono O'odham Nation could have incurred incremental administrative
impacts as a result of the designation. Costs associated with one fully
incremental formal consultation considering adverse modification of
critical habitat are expected to be $20,000, of which $3,500 could be
incurred by the Tohono O'odham Nation. However, the Secretary has used
her discretion to exclude the Tohono O'odham Nation based on our
ongoing and effective working partnership with the Tohono O'odham
Nation to promote the conservation of listed species, including the
jaguar and its habitat.
Other Activities--Limited other activities occur within the
critical habitat area. We use historical rates of consultation for
activities not described above to determine future rates of
consultation for other activities. Agencies involved in these
consultations have included: the Federal Energy Regulatory Commission
(FERC), U.S. Department of Energy, the Corps, Arizona Department of
Environmental Quality, the Arizona Department of Water Resources, the
U.S. Environmental Protection Agency, the U.S. Department of
Agriculture (USDA), the Federal Communications Commission, the Animal
and Plant Health Inspection Service, the Federal Aviation
Administration, the Federal Emergency Management Agency, and other
Federal and non-Federal agencies. In particular, the proposed Sierrita
natural gas pipeline may cross the designated areas and would have a
Federal nexus through the Federal Energy Regulatory Commission (FERC).
Due to limited additional conservation efforts resulting from
consultation, we estimate only administrative costs of consultation.
Baseline impacts are $180,000, or $16,000 annualized over the next 20
years (2013 dollars), and incremental impacts are $82,000, or $7,300
annualized over the next 20 years (2013 dollars).

Table 5--Summary of Forecast Incremental Impacts By Activity, 2013 to 2032
[Seven percent discount rate]
----------------------------------------------------------------------------------------------------------------
Percent of Potential additional
Activity Present value Annualized total impacts impacts
----------------------------------------------------------------------------------------------------------------
Federal lands management........... $180,000 $16,000 4.4 .....................
Border protection.................. $17,000 $1,500 0.4 .....................
Mining............................. $3,900,000 $340,000 92 If mining companies
choose not to
proceed to
production due to
the designation of
critical habitat,
economic activity
that would have been
associated with the
mines would not
occur.
Transportation..................... $5,900 $520 0.1 If mining plans move
forward, incremental
changes to planned
road improvements
could occur that
themselves could
result in
conservation efforts
for jaguar that are
not captured in this
analysis.
Development........................ $0 $0 0 .....................
Military........................... $20,000 $1,700 5.50 .....................
Grazing............................ $24,000 $2,100 0.5 It is possible that
some ranchers may
withdraw
applications for
NRCS funding
following jaguar
critical habitat in
order to avoid any
potential
obligations to
consult with the
Service.
Other.............................. $82,000 $7,300 .06 .....................
Tribal............................. Unquantified Unquantified 0 Administrative or
project modification
costs associated
with future projects
on Tohono O'odham
Nation lands.
................. ................. .............. Negative economic
impacts on the
Nation's ability to
manage its lands
independent of
Federal oversight.
----------------------------------------------------------------------------
Total:......................... $420,000,000 $3,700,000 100 .....................
----------------------------------------------------------------------------------------------------------------
Note: Totals may not sum due to rounding.

Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary is not exerting her discretion to exclude any areas from this
designation of critical habitat for the jaguar based on economic
impacts.
A copy of the final economic analysis with supporting documents may
be obtained by contacting the Arizona Ecological Services Fish and
Wildlife Office (see ADDRESSES) or by downloading from the Internet at
http://www.regulations.gov.

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. In preparing this final rule, we have
exempted from the designation of critical habitat those Department of
Defense lands with completed INRMPs determined to provide a benefit to
the jaguar. Fort Huachuca lands, as discussed above in Application of
Section 4(a)(3) of the Act was exempted from designation. There are
Department of Defense lands on which the U.S. Customs and Border
Protection (CBP) operates along the U.S.-Mexico border. However, we
anticipate no impact on national

[[Page 12602]]

security. Consequently, the Secretary is not exercising her discretion
to exclude any areas from this final designation based on impacts on
national security.

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.
In preparing this final rule, we have determined that there are
currently no HCPs or other management plans that address jaguar habitat
needs. Accordingly, the Secretary is not exercising her discretion to
exclude any areas from this final designation based on HCPs or other
private management plans for jaguars. However, below we evaluate
impacts to conservation partnerships and consider the government-to-
government relationship of the United States with tribal entities.
Tohono O'odham Nation
The Tohono O'odham Nation is located in southern Arizona on lands
in Pima, Pinal, and Maricopa Counties. The Tohono O'odham Nation
encompasses 1,133,120 ha (2,800,000 ac) of land and is divided into 11
districts. The Tohono O'odham Nation's eastern boundary is located
approximately 24 km (15 mi) west of the city of Tucson, and the
administrative center is in the town of Sells, approximately 88 km (55
mi) southwest of Tucson. The revised proposed critical habitat
designation within the Tohono O'odham Nation boundaries included
approximately 20,764 ha (51,308 ac) in Subunit 1a and approximately
10,829 ha (26,759 ac) in Subunit 1b, totaling 31,593 ha (78,067 ac) of
Madrean evergreen woodland and semidesert grassland.
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; and the relevant
provision of the Departmental Manual of the Department of the Interior
(512 DM 2), we coordinate with federally recognized Tribes on a
government-to-government basis. Further, Secretarial Order 3206,
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act'' (1997) states that (1) critical
habitat shall not be designated in areas that may impact tribal trust
resources, may impact tribally owned fee lands, or are used to exercise
tribal rights unless it is determined essential to conserve a listed
species; and (2) in designating critical habitat, the Service shall
evaluate and document the extent to which the conservation needs of the
listed species can be achieved by limiting the designation to other
lands.
We have conducted government-to-government consultation with the
Tohono O'odham Nation regarding the designation of critical habitat for
the jaguar and continued to do so throughout the public comment period
and during development of this final designation of critical habitat
for the jaguar. We sent notification letters on May 16, 2012, September
28, 2012, and September 3, 2013, to the Tribe describing the exclusion
process under section 4(b)(2) of the Act and engaged in conversations
with the Tribe about the proposal to the extent possible without
disclosing predecisional information.
We continue to work with the Tohono O'odham Nation and the BIA on
wildlife and plant-related projects, including recovery efforts for
Sonoran pronghorn and jaguar, as well as surveys and monitoring for
Pima pineapple cactus, jaguar, ocelot, lesser long-nosed bat, and
cactus ferruginous pygmy owls. We have established and maintain a
cooperative working relationship with the Tohono O'odham Nation and the
BIA when they request review of environmental assessments, seek
technical advice, and conduct consultations for Tohono O'odham Nation
projects. Surveys for any listed species are conducted by the BIA or
Tohono O'odham Nation personnel prior to implementation of projects. In
April of 2003, the Tohono O'odham Nation and the Service signed a
Statement of Relationship, which indicates the Tohono O'odham Nation,
through its Natural Resources Department, will work in close
collaboration with the Service to provide effective protections for
listed species.
As a sovereign entity, the Tohono O'odham Nation seeks to continue
to protect and manage their resources according to their traditional
and cultural practices. The Tohono O'odham Nation requests that their
land be excluded from the designation of critical habitat for the
jaguar due to their sovereign status and their right to manage their
own resources. They are concerned that critical habitat designation on
their land would limit the Nation's right to self-determination and
self-governance. The Tohono O'odham Nation recognizes that their land
contains jaguar habitat, and they consider the jaguar to be culturally
significant.
(1) Benefits of Inclusion
As discussed above under Application of Section 4(b)(2) of the Act,
Federal agencies, in consultation with the Service, must ensure that
their actions are not likely to jeopardize the continued existence of
any listed species or result in the destruction or adverse modification
of any designated critical habitat of such species. The difference in
the outcomes of the jeopardy analysis and the adverse modification
analysis represents the regulatory benefit and costs of critical
habitat. Approximately two-thirds of the areas proposed as critical
habitat that occur within the Tohono O'odham Nation are considered
occupied by the jaguar and, therefore, if a Federal action or
permitting occurs, there is a Federal nexus that would result in
consultation under section 7 of the Act on these lands whether or not
the area is designated as critical habitat. Our section 7 consultation
history across the jaguar's range shows that since listing in 1972, no
formal consultations have occurred for actions conducted on tribal
lands that resulted in adverse effects to jaguars. No formal jaguar
consultations have been conducted with the BIA, a likely source of
Federal funding for Native American Tribes. Additionally, no informal
consultations with agencies implementing actions on tribal lands have
been conducted, although we have provided technical assistance on some
projects to the Tohono O'odham Nation. Because of how the Tohono
O'odham Nation has chosen to manage and conserve its lands and the lack
of past section 7 consultation history, we do not anticipate that
Tribal actions would considerably change in the future, and we do not
anticipate a noticeable increase in section 7.
The draft environmental analysis found that the effects of critical
habitat designation on tribal resources are expected to be negligible
because (1) new consultations based solely on the presence of
designated critical habitat are unlikely, because land managers are
already consulting on jaguar throughout the proposed critical habitat
areas; and (2) tribal-related activities that currently occur or are
anticipated to occur are not likely to require reasonable and prudent

[[Page 12603]]

alternatives developed to avoid adverse modification.
Were we to designate critical habitat on Tohono O'odham Nation
lands, our section 7 consultation history indicates that there would be
few regulatory benefits to the jaguar. As described above, no formal
jaguar-related section 7 consultations have occurred on Tribal lands.
Further, the Tohono O'odham Nation and the BIA request review of
environmental assessments, seek technical advice, and conduct
consultations for Tohono O'odham Nation projects. The BIA or Tohono
O'odham Nation personnel also conduct surveys for any listed species
prior to implementation of projects. In addition, the Tohono O'odham
Nation already manages their lands for the benefit of the jaguar and
its habitat, adopting voluntary conservation measures on the western
side of Unit 1 to ensure habitat protection measures are implemented.
For these reasons, it would be highly unlikely that any consultation
would result in a determination of adverse modification.
In addition, during coordination with the Tohono O'odham Nation,
the Nation indicated that they are not considering any actions that
would destroy or adversely modify jaguar critical habitat, they are
participating on the Jaguar Recovery Team, and they are implementing a
jaguar survey and monitoring project to detect jaguars on Tohono
O'odham Nation lands on the west side of the Baboquivari and Coyote
Mountains (within Subunits 1a and 1b). Therefore, the Service also does
not anticipate that the Tohono O'odham Nation actions would be likely
to result in adverse impacts to the jaguar requiring formal section 7
consultations. For these reasons, the beneficial effect of a critical
habitat designation on these lands is minimal.
The principal benefit of any designated critical habitat is that
activities in and affecting such habitat require consultation under
section 7 of the Act. Such consultation would ensure that adequate
protection is provided to avoid destruction or adverse modification of
critical habitat. However, because no formal consultations have been
conducted on tribal lands or with the BIA, and no informal
consultations with agencies implementing actions on tribal lands have
been conducted; and because Tohono O'odham Nation has chosen to manage
and conserve its lands, coordinates with the Service prior to projects,
implements jaguar surveys prior to project implementation, and does not
foresee any actions that would destroy or adversely modify jaguar
critical habitat, the benefits of a critical habitat designation are
minimized.
(2) Benefits of Exclusion
Benefits of excluding these tribal lands from designated critical
habitat include our deference to tribes to develop and implement tribal
conservation and natural resource management plans for their lands and
resources, which includes the jaguar, and the preservation of our
cooperative partnership with the Tohono O'odham Nation. The Service and
Tohono O'odham Nation have established and maintain a cooperative
conservation partnership for the jaguar, as well as several other
listed species that occur on the Nation's lands. Partnership and
cooperation have developed through the Jaguar Recovery Team, to which
the tribe has appointed a representative. In addition, the Nation is
developing a jaguar management plan. While the Service cannot consider
draft management plans for exclusions, this plan demonstrates the
Nations cooperative conservation partnership with the Service and their
commitment to jaguar conservation. In addition, the Nation has been
working with the Service to develop a memorandum of agreement to
conduct a jaguar survey and monitoring study as identified in the 2012
Jaguar Recovery Outline. Further, the Nation's survey and monitoring
plan is consistent with an approved study plan currently under contract
with the Service to detect jaguars in the Northwestern Recovery Unit
over a 3-year period.
The Tohono O'odham Nation conducts environmental reviews of any
project occurring on their lands, which includes surveying for
threatened and endangered species (such as the Pima pineapple cactus)
and culturally-sensitive species (such as the cactus ferruginous pygmy-
owl). They are currently implementing a Tribal Wildlife Grant to
establish baseline data on the occupancy and distribution of flora and
fauna in the Baboquivari, Quinlan, and Coyote Mountains with the tribal
boundary. They are also confirming known populations and identifying
previously unknown populations of rare, threatened, or endangered
species such as the Chiricahua leopard frog, Kearney's blue star, and
Mexican spotted owl. Further, they are identifying species areas of
unique biological importance for future monitoring, protection, and
management efforts. They are establishing a model for future inventory
protocols on the remainder of the tribal lands and are providing for
the capability to continue such studies.
The Tohono O'odham Nation assists the Service in monitoring lesser
long-nosed bats at a maternity roost on tribal lands, which is only one
of three known maternity roosts. By adopting voluntary conservation
measures, the Nation ensures that habitat protection measures are
implemented. Further, the Nation is committed to working with the
Service to ensure their management meets the Service's requirements of
both the jaguar and its habitat. These efforts by the Nation
demonstrate their past and ongoing cooperation with the Service, and
their commitment to continue cooperation with the Service in the
future. Further demonstration of the Nations commitment to cooperate
with the Service is expressed in their Statement of Relationship (April
2013) to develop and promote communication and understanding to
preserve tribal sovereignty and accomplish conservation of natural
resources on the Nation's lands.
The benefit of exclusion is the continuance and strengthening of
our ongoing and effective working partnership with the Tohono O'odham
Nation to promote the conservation of listed species, including the
jaguar and its habitat. We consider that conservation benefits, as
described above, are being provided to the jaguar and its habitat
through our cooperative working relationship with the Tohono O'odham
Nation.
We have established a working relationship with the Tohono O'odham
Nation through informal and formal meetings that offered information
sharing and technical advice and assistance about the jaguar and
recommended conservation measures for the species and its habitat.
These proactive actions were conducted in accordance with Secretarial
Order 3206, American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act (June 5, 1997); the
relevant provision of the Departmental Manual of the Department of the
Interior (512 DM 2); and Secretarial Order 3317, Department of Interior
Policy on Consultation with Indian Tribes (December 1, 2011). During
our communication with the Tohono O'odham Nation, we recognized and
endorsed their fundamental right to provide for tribal resource
management activities, including those relating to jaguar habitat.
The designation of critical habitat on these tribal lands would be
expected to adversely impact our working relationship with the Tohono
O'odham Nation. During our discussions with the Tohono O'odham Nation
and through a letter received during our first public

[[Page 12604]]

comment period, we were informed that the designation of critical
habitat on tribal land would be viewed as an intrusion on their
sovereign ability to manage natural resources in accordance with their
own policies, customs, and laws. The perceived future restrictions
(whether realized or not) of a critical habitat designation could have
a damaging effect to coordination efforts, possibly preventing actions
that might maintain, improve, or restore habitat for the jaguar and
other species. To this end, the Tohono O'odham Nation would prefer to
work with us on a government-to-government basis. For these reasons, we
believe that our working relationship with the Tohono O'odham Nation
would be better maintained and more effective if they are excluded from
the designation of critical habitat for the jaguar. The benefits of
excluding this area from critical habitat will include the continued
cooperation and development of data-sharing and management plans for
this and other listed species. If this area is designated as critical
habitat, the government-to-government relationship we have with the
Tohono O'odham Nation will be damaged and this situation will affect
the Service's opportunities to assist the Tohono O'odham Nation with
technical reviews, voluntary consultations, and data sharing. We view
such opportunities as a substantial benefit since we have developed a
cooperative working relationship with the Tohono O'odham Nation for the
mutual benefit of jaguar conservation and other endangered and
threatened species.
In addition, there are other listed species and habitat on the
Tohono O'odham Nation for which conservation efforts of the tribe are
important. We believe that the tribe is willing to work cooperatively
with us and others to benefit other listed species, but only if they
view the relationship as mutually beneficial. Consequently, the
development of future voluntary management actions for other listed
species may be compromised if these tribal lands are designated as
critical habitat for the jaguar. Thus, a benefit of excluding these
lands would be future conservation efforts that would benefit other
listed species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
The benefits of including the Tohono O'odham Nation in critical
habitat are limited to the incremental benefits gained through the
regulatory requirement to consult under section 7 and consideration of
the need to avoid adverse modification of critical habitat, and
educational awareness. However, as discussed above, these benefits are
minimal because they are provided for through other mechanisms, such as
the Nation's commitment to jaguar conservation and the maintenance of
effective collaboration and cooperation to promote the conservation of
the jaguar and its habitat.
Alternatively, the benefits of excluding these areas from critical
habitat for the jaguar are more significant and include the continued
development and implementation of special management measures and
coordination with the Service for the jaguar and other listed species
on the Tohono O'odham Nation lands. As discussed above, the Service has
established a cooperative conservation partnership with the Nation.
Maintaining this relationship is important to the continued
conservation of the jaguar, as well as several other listed species,
that occur on the Nation's lands. Exclusion from critical habitat
designation will allow the Tohono O'odham Nation to manage their
natural resources to benefit the jaguar, without the perception of
Federal Government intrusion because of the designation of critical
habitat on their land. This philosophy is also consistent with our
published policies on Native American natural resource management. The
exclusion of this area will likely also provide additional benefits to
the species that would not otherwise be available to encourage and
maintain cooperative working relationships. Therefore, we find that the
benefits of excluding this area from critical habitat designation
outweigh the benefits of including this area. Furthermore, conservation
of other species and their habitat provides conservation benefits for
the environment as a whole, which is a benefit for the jaguar.
(4) Exclusion Will Not Result in Extinction
As noted above, the Secretary, under section 4(b)(2) of the Act,
may exclude areas from the critical habitat designation unless it is
determined, based on the best scientific and commercial data available,
that the failure to designate such area as critical habitat will result
in the extinction of the species concerned. Jaguars range from the
southern United States to South America (Swank and Teer 1989, p. 14).
Consequently, we have determined that exclusion of the Tohono O'odham
Nation from the critical habitat designation will not result in the
extinction of the jaguar.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed
designation of critical habitat for the jaguar during three comment
periods. The first comment period associated with the publication of
the proposed rule opened on August 20, 2012, and closed on October 19,
2012 (August 20, 2012, 77 FR 50214). The second comment period
associated with the proposed revision of critical habitat designation,
as well as the associated draft economic analysis and draft
environmental assessment, opened July 1, 2013, and closed on August 9,
2013, (July 1, 2013; 78 FR 39237). A third comment period from August
29, 2013, through September 13, 2013 (August 29, 2013, 78 FR 53390),
was provided to the public for additional review and comment on the
proposed revision of critical habitat designation, as well as the
associated draft economic analysis and draft environmental assessment.
We received several requests for a public hearing, which we held on
July 30, 2013. We also contacted appropriate Federal, State, and local
agencies; scientific organizations; and other interested parties and
invited them to comment on the proposed rule and draft economic
analysis and draft environmental assessment during these comment
periods.
We received approximately 33,000 comment letters on this action
through the end of the final comment period. All substantive
information provided during comment periods has either been
incorporated directly into this final designation or addressed below.
Comments received were grouped into general issues specifically
relating to the critical habitat designation for the jaguar and are
addressed in the following summary and incorporated into the final rule
as appropriate.

Peer Review

In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from seven knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from six of the
seven peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding critical habitat for
the jaguar. Most of the peer reviewers (five of the six) generally
concurred with our methods and conclusions and provided

[[Page 12605]]

additional information, clarifications, and suggestions to improve this
final rule. One peer reviewer was against critical habitat designation
for the jaguar, stating that there is no habitat in the United States
at this time that is critical to the survival of the jaguar as a
species. Peer reviewer comments are addressed in the following summary
and incorporated into the final rule as appropriate.

Peer Reviewer Comments

(1) Comment: There is no habitat in the United States that is
critical to the recovery of the jaguar or its survival as a species.
Our response: The Service has identified critical habitat for the
jaguar in accordance with the Act and its implementing regulations.
Section 4(a)(3)(A) of the Act states that critical habitat shall be
designated for endangered and threatened species to the maximum extent
prudent and determinable. Designation of critical habitat is not
prudent when one or both of the following situations exist (50 CFR
424.12(a)(1)): identification of critical habitat can be expected to
increase the degree of a threat or such designation would not be
beneficial to the species.
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 the Service's previous not prudent determination
and required the Service issue a new determination on whether
designation is prudent, stating that Service regulations at https://www.federalregister.gov/select-citation/2010/01/13/50-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. The court did not order the Service to
designate critical habitat, rather the court ordered the Service to
reevaluate whether designation of critical habitat for the jaguar is
prudent. Thus, in responding to the Court's order, we reevaluated our
previous ``not prudent'' finding regarding critical habitat designation
for the jaguar. Following a review of the best available information,
including the ongoing conservation programs for the jaguar, and
information and analysis that became available subsequent to the July
12, 2006, not prudent finding, we determined that the designation of
critical habitat for the jaguar would be beneficial to the species. We
also determined that designation of critical habitat would not be
expected to increase the degree of threat to the species. As such, we
no longer find that designation of critical habitat for the jaguar is
not prudent under our regulations, and, conversely, determine that
designation is prudent. Therefore, we are required to designate
critical habitat for the jaguar to fulfill our legal and statutory
obligations. Based on the best scientific data available, the Service
has determined that designation of critical habitat for the jaguar is
prudent and determinable.
The first part of section 3(5)(A) of the Act defines critical
habitat as areas within the geographical area occupied by the species,
at the time it is listed, on which are found those physical or
biological features that are essential to the conservation of the
species. Under the second part of the Act's definition of critical
habitat, we can designate critical habitat in 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. As discussed in the Background section of the January
13, 2010, Notice of Determination (75 FR 1741), jaguars have been found
in the United States in the past and may occur in the United States now
or in the future. As such, physical and biological features that can be
used by jaguars occur in the United States. We have determined that
there are geographical areas in the United States that may have been
occupied by the species at the time it was listed. The Service has
determined that data are sufficient to determine the physical or
biological feature and associated PCEs for jaguar critical habitat. We
have determined that the essential physical or biological feature and
the associated PCEs essential for jaguar conservation are present in
the United States. Critical habitat in the United States contributes to
recovery the jaguar's persistence and recovery across the species'
entire range 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
proposed Northwestern Recovery Unit.
Section 4(b)(2) of the Act states that the Secretary shall
designate critical habitat, and make revisions thereto, under
subsection (a)(3) on the basis of the best scientific data available
and after taking into consideration the economic impact, and any other
relevant impact, of specifying any particular area as critical habitat.
It is often the case that biological information may be lacking for
rare species; however, the Service has used the best available
scientific data as required by the Act. We recognize that information
currently available for northern jaguars is scant; therefore, we
convened a binational Jaguar Recovery Team in 2010 to synthesize
information on the jaguar, focusing on a area comprising jaguars in the
northernmost portion of their range, the proposed Northwestern Recovery
Unit. The Jaguar Recovery Team comprises members from the United States
and Mexico, and is composed of two subgroups: a technical subgroup and
an implementation subgroup. We have based jaguar critical habitat on
information compiled and produced by the Jaguar Recovery Team, to the
greatest extent possible. As described in the proposed rule and this
final rule, to the greatest extent possible, we based critical habitat
boundaries on the physical and biological feature and PCEs from the
latest jaguar habitat model produced by the Jaguar Recovery Team
(Sanderson and Fisher 2013, entire), which we consider the best
commercial and scientific data available. The Jaguar Recovery Team
comprises jaguar experts, large-cat experts, and stakeholders from the
United States and Mexico; therefore, we consider that the work produced
by the team is the best available scientific and commercial data and,
subsequently, the best information to use in determining the physical
or biological feature and associated PCEs of jaguar critical habitat.
Using this information, we have determined that the physical or
biological feature of jaguar critical habitat and the associated PCEs
are present in the United States, and that these areas were occupied at
the time of listing.
(2) Comment: Designation of critical habitat is not due to new
data, but due to litigation. The Service's previous 1997 and 2006 not
prudent determinations for designating critical habitat for the jaguar
were valid decisions, but the 2010 prudent determination to designate
critical habitat for the jaguar is not valid. The court did not order
the Service to designate critical habitat, but rather to determine if
the physical and biological features upon which jaguars depend could be
found in the United States and, if so, were essential to the
conservation of the species.
Our response: The Service has identified critical habitat for the
jaguar in accordance with the Act and its implementing regulations. See
our response to comment number 1 in the Peer Reviewer Comments above.
(3) Comment: The Service received multiple comments related to the

[[Page 12606]]

inclusion of areas north of the proposed critical habitat. Some thought
areas north of the proposed critical habitat along the Mogollon Rim in
Arizona, and to the north and east into the Gila highlands in New
Mexico are where the best biophysical potential for jaguar recovery in
the United States exists. Others thought jaguars would use habitat
north of the proposed critical habitat, but thought the use and
importance of these areas were lower given their distance from breeding
populations.
Our response: Areas north of designated critical habitat may be
usable by jaguars and may in fact contribute to the recovery of the
species. However, these areas do not meet the definition of critical
habitat under the Act because they were neither occupied at the time of
listing nor are they considered essential to the conservation of the
species. See Areas Essential for the Conservation of Jaguars, above.
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. However, we have determined that the critical
habitat areas that we are designating in the United States are
sufficient for the conservation of jaguars. We do not agree that areas
in the United States outside of the proposed Northwestern Recovery Unit
must be designated as critical habitat to recover the species, as the
boundaries of the recovery unit were determined by the Jaguar Recovery
Team. All designated areas contain all of the physical and biological
features upon which jaguars in the United States depend, including
connectivity to Mexico, which is a key component aiding the recovery of
the species, or the designated areas are considered essential to the
conservation of the jaguar.
(4) Comment: The Service should include designation of additional
areas to support a viable, self-sustaining population of jaguars within
the United States (of 50 to 100 individuals) in order to recover the
species within the United States.
Our response: Creating a viable, self-sustaining population (of
perhaps 50 to 100 jaguars) in the United States is not a recovery goal
for the jaguar (Jaguar Recovery Team 2012, pp. 38-42). Recovery of the
jaguar does not require that areas in the United States contain
females, documented breeding, or a self-sustaining population. As
discussed in the proposed rule and this final rule, the purpose of
designating critical habitat in the United States is to provide areas
for transient jaguars (with possibly a few residents) to support the
nearest breeding area to the south in Mexico, allowing this population
to expand and contract, and, ultimately, recover. It is our intent that
the designation of critical habitat will protect the functional
integrity of the features essential for jaguar life-history
requirements for this purpose into the future.
(5) Comment: The Service should expand critical habitat to
represent all ecoregions and biotic communities from which jaguars in
the United States have been extirpated, including portions of
California, Texas, and possibly Louisiana.
Our response: Designating all the ecoregions and biotic communities
in the United States from which jaguars have been extirpated as
critical habitat does not meet the definition of critical habitat under
the Act because they were neither occupied at the time of listing nor
are they considered essential to the conservation of the species. To
meet the requirements of the Act, the Service determined areas that
were occupied by jaguars at the time of listing that contained the
physical and biological features essential to the conservation of the
jaguar and unoccupied areas that were essential to the conservation of
the jaguar. Additionally, to the greatest extent possible, we based
critical habitat unit boundaries on the physical and biological feature
and PCEs from the latest jaguar habitat model produced by the Jaguar
Recovery Team (Sanderson and Fisher 2013, entire), which is the best
commercial and scientific data available. In areas where the critical
habitat units did not provide connectivity to Mexico (PCE 1), we
identified additional areas to provide this connectivity under the
second part of the definition of critical habitat. See Criteria Used To
Identify Critical Habitat, above. Further, section 3(5)(C) of the Act
states that, except in those circumstances determined by the Secretary,
critical habitat shall not include the entire geographical area which
can be occupied by the threatened or endangered species.
(6) Comment: The lack of detection of jaguars does not indicate the
species is absent.
Our response: The Service agrees that the lack of detection does
not indicate the species is absent, and we acknowledge this in our
proposed rule and this final rule. The Service recognizes that 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 situation 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). However, the Service used
the best available data pertaining to jaguar occurrences. See Occupied
Area at the Time of Listing, above, in this final rule.
(7) Comment: The Service should follow the jaguar habitat modeling
efforts of Hatten et al. (2005) and Robinson (2006) as a basis for
including additional areas in these two states. Hatten et al. (2005)
identified 21-30 percent of Arizona (approximately 62,000-88,600 km\2\
(23,938-34,209 mi\2\)) as potential jaguar habitat and Robinson (2006)
identified approximately half of New Mexico (approximately 156,800
km\2\ (60,541 mi\2\)) as potential jaguar habitat.
Our response: Designating all areas of potential habitat in the
United States as critical habitat does not meet the definition of
critical habitat under the Act because they were neither occupied at
the time of listing nor are they considered essential the conservation
of the species. We recognize that the area of potential habitat is
larger than what we have designated as critical habitat, but as
required under the Act, we have designated those areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features that are
essential to the conservation of the species; or 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. We also 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.
In the Jaguar Recovery Team's analysis and modeling effort, the
team considered the modeling efforts of Hatten et al. (2005, entire)
and Robinson (2006, entire) and further refined the Hatten et al.
(2005) model such that a similar model could be applied across the
entire Northwestern Recovery Unit. The Jaguar Recovery Team provided
this

[[Page 12607]]

analysis and habitat model in their 2013 report entitled Jaguar Habitat
Modeling and Database Update (Sanderson and Fisher 2013, entire). We
based critical habitat boundaries on the physical or biological feature
and PCEs from the updated habitat modeling report, in which the habitat
features preferred by the jaguar in the proposed Northwestern Recovery
Unit were described based on the best available science and expert
opinion of the Jaguar Recovery Team.
(8) Comment: The Service should expand critical habitat to ensure
habitat connectivity. The Service should include linkages between all
of the critical habitat units.
Our response: We recognize that connecting critical habitat units
in the United States is important to achieve connectivity between the
United States and Mexico. We have identified 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, and we understand that
connectivity between expansive open areas of habitat for the jaguar in
the United States is necessary if viable habitat for the jaguar is to
be maintained. We acknowledge that, based on home range sizes and
research and monitoring, jaguars will use valley bottoms (for example,
McCain and Childs 2008, p. 7) and other areas of habitat connectivity
to move among areas of higher quality habitat found in isolated
mountain ranges in the United States. Therefore, in areas where
critical habitat was designated based on the first part of the
definition of critical habitat (areas within the geographical area
occupied by the species, at the time it is listed, on which are found
those physical or biological features that are essential to the
conservation of the species) in which connectivity to Mexico (PCE 1)
was not provided through a direct connection to Mexico, we identified
areas under the second part of critical habitat (defined in the Act as
the 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) to provide this
connectivity. We did this by selecting and adding subunits containing
low human influence and impact, and either or both vegetative cover or
rugged terrain. See Connectivity between expansive open spaces in the
United States and Mexico, above, in this final rule.
In response to the need to include linkages between all of the
critical habitat units within the United States, we determined that no
additional areas within the United States must be designated to connect
critical habitat units together. As described in the final rule, there
is only one occurrence record of a jaguar in a valley between mountain
ranges. 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. See Connectivity between expansive open spaces within the
United States, above, in this final rule.
(9) Comment: The Service should include all Class II observations
and suspect Class I observations. The Service should include all
historic records. The Service is dismissing the current and former U.S.
jaguar range. The Service appears to be trying to introduce balance in
the treatment of false negative and positive biases in time. However,
the more value-neutral approach would be to use both Class I and Class
II records.
Our response: The Service considers undisputed Class I records as
the best available scientific data to determine occupancy. To meet the
requirements of section 3(5)(A)(i) of the Act and its implementing
regulations, we are required to define the specific areas within the
geographical area occupied by the species at the time it is listed.
Determining jaguar occupancy at the time of listing is particularly
difficult because jaguars were added to the list many years ago, the
species was rare within the United States, and jaguars are, by nature,
cryptic and difficult to detect, so defining an area as occupied or
unoccupied must be done based on limited information. Class I records
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. We determined that undisputed Class I observations from
1962 through September 11, 2013, provided the best scientific and
commercial data available, as these are the most reliable and
verifiable records for jaguars. Suspect (validity of these locations is
questionable) Class I observations, Class II observations, and other
historical records represent observations that may have been influenced
in some way or that may not, in fact, be a sighting of a jaguar. For
these reasons, we determined that undisputed Class I jaguar records are
the most reliable; therefore, we used these records to determine
critical habitat occupancy. See Occupied Area at the Time of Listing,
above, in this final rule.
(10) Comment: It is possible that jaguars were not present at the
time of listing; however, the absence of jaguars was most certainly the
result of human killing of jaguars, and jaguars almost certainly
occupied and reproduced in southern Arizona in the late 19th and early
20th century, shortly prior to listing.
Our response: Jaguars were present at the time of listing as well
as historically in the United States. Based on the best available
information related to jaguar rarity, biology, and survey effort, we
determine that areas containing undisputed Class I records from 1962 to
the present (September 11, 2013) may have been occupied by jaguars at
the time of listing. Our rationale for including these records is based
on expert opinion regarding the average lifespan of the jaguar, the
consensus being 10 years. It is likely that areas in which jaguar
sightings have occurred after 1982 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.
To the extent that uncertainty exists regarding our analysis of
these occurrence 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, an argument could 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
were occupied.
For this reason we also analyzed whether or not critical habitat
areas are essential to the conservation of the species. Through our
analysis, we determined that they are essential to the conservation of
the species because: (1) They have demonstrated recent (since 1996)
occupancy by jaguars; (2) they contain features that comprise jaguar
habitat; and (3) they contribute to the species' persistence in the
United States by allowing the normal demographic

[[Page 12608]]

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). Therefore, whether or not they were occupied at the
time of listing, we are designating them as critical habitat.
(11) Comment: The Service's description of occupancy is not
consistent with the Act; no data from 1962 onward indicate any breeding
or resident populations of jaguars within the United States, as
originally stated in the 1972 rule.
Our response: The Act does not require an area to have a resident
population, documented breeding, or females in order to be considered
occupied. Rather, section 3(5)(A) of the Act defines the first part of
critical habitat as the specific areas within the geographical area
occupied by the species, at the time it is listed, on which are found
those physical or biological features essential to the conservation of
the species. The Service has determined that physical and biological
features that are essential to the conservation of the jaguar occur in
the United States. Further, in Arizona Cattle Grower's Assoc. v.
Salazar, 2009 U.S. App. Lexis 29107 (June 4, 2010), the Ninth Circuit
affirmed that the Service has the authority to designate as occupied
all areas used by a listed species with sufficient regularity that
members of the species are likely to be present during any reasonable
span of time. Therefore, occupancy of an area can be indicated by the
presence of an individual member of the species, and we have determined
that areas may have been occupied at the time of listing based on this
definition in conjunction with observations of jaguars in those areas
(as described in Table 1 of this final rule).
Further, the purpose of critical habitat for the jaguar in the
United States is to 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. Through our
analysis, we determined there are areas within the United States
containing the physical or biological feature and associated PCEs of
jaguar critical habitat to support this function, including adequate
food, water, shelter, and space. Therefore, we are designating these
areas of critical habitat for the purposes stated above.
(12) Comment: Jaguars do not remain in the United States, nor are
they found in abundance in the United States, because areas in the
United States provide suboptimal conditions in terms of food and
reproduction.
Our response: The purpose of critical habitat for the jaguar in the
United States is to 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. Through our
analysis, we determined there are areas within the United States
containing the physical or biological feature and associated PCEs of
jaguar critical habitat to support this function, including adequate
food, water, shelter, and space. Therefore, we are designating these
areas of critical habitat for the purposes stated above.
(13) Comment: The central goal statement offered by the proposed
rule is to bring an endangered or threatened species to the point at
which the measures provided pursuant to the Act are no longer
necessary. The totality of what is necessary in terms of space,
quality, or numbers needed to attain viability is not specified
anywhere in the proposed rule. The closest approximation is statements
to the effect that some amount (not specified) of essential habitat is
needed to achieve recovery goals for jaguars in the United States, with
the remaining focus on defining essential jaguar habitat, which is not
a recovery goal.
Our response: The designation of critical habitat is only one
component of recovery for a species. The recovery plan is the
appropriate instrument to define recovery goals. The Service is in the
process of developing a recovery plan.
(14) Comment: The Service assumes that optimal habitat for jaguars
in the United States would be the high mountains or rugged areas,
because this is where the most sightings have been reported. However,
jaguar prey prefers lowland areas and are only relegated to more rugged
regions when the lowland areas have been taken over or destroyed.
Our response: Biological information is often lacking for rare
species, particularly with a cryptic species like the jaguar that is
difficult to detect. However, the Act requires the Service to make
determinations based on the best scientific and commercial data
available. The Jaguar Recovery Team produced a habitat model based on
the best information available, which indicates that habitat for
jaguars in the United States is in rugged, mountainous areas.
Therefore, we have utilized this information to inform this
designation.
(15) Comment: Areas in the United States will function primarily to
support dispersing or transient jaguars, although breeding could have
occurred in the past.
Our response: The Service agrees that critical habitat in the
United States will function primarily to support dispersing or
transient jaguars. Jaguars may have bred in the United States in the
past (see Table 1 in Brown and L[oacute]pez Gonz[aacute]lez 2001, pp.
6-9), but breeding has not been documented recently. As described in
the proposed rule and this final rule, the recovery function and value
of critical habitat for the jaguar within the United States is to
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.
(16) Comment: The Service received several comments related to the
use of the best available scientific data. Some noted that the Service
has used the best available literature and data, and acknowledged that
there is a lack of data on jaguar habitat in this region; however,
additional data would not result in a significantly different or better
map of critical habitat. Conversely, others asserted that the Service
did not use the best available scientific data and data is lacking to
justify the designation of critical habitat. Others also asserted that
the proposed rule continually uses assumptions and speculation as fact.
Our response: In accordance with section 4 of the Act, we are
required to designate critical habitat on the basis of the best
scientific data available. Further, our Policy on Information Standards
under the 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
(www.fws.gov/informationquality/), provide criteria and guidance, and
establish procedures to ensure that our decisions are based on the best
scientific data available.

[[Page 12609]]

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.
Primary or original information sources are those that are closest
to the subject being studied, as opposed to those that cite, comment
on, or build upon primary sources. The Act and our regulations do not
require us to use only peer-reviewed literature, but instead they
require us to use the ``best scientific and commercial data available''
in a critical habitat designation. We use information from many
different sources, including articles in peer-reviewed journals,
scientific status surveys and studies completed by qualified
individuals, Master's thesis research that has been reviewed but not
published in a journal, other unpublished governmental and
nongovernmental reports, reports prepared by industry, personal
communication about management or other relevant topics, conservation
plans developed by States and counties, biological assessments, other
unpublished materials, experts' opinions or personal knowledge, and
other sources. We have relied on published articles, unpublished
research, habitat modeling reports, digital data publicly available on
the Internet, and the expert opinion of the Jaguar Recovery Team to
designate critical habitat for the jaguar.
Also, in accordance with our peer review policy published on July
1, 1994 (59 FR 34270), we solicited peer review from knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. Additionally, we requested comments or
information from other concerned governmental agencies, Native American
Tribes, the scientific community, industry, and any other interested
parties concerning the proposed rule. Comments and information we
received helped inform this final rule. Further, information provided
in comments on the proposed designations and the draft environmental
and economic analyses were evaluated and taken into consideration in
the development of these final designations, as appropriate.
Information currently available for northern jaguars is scant;
therefore, we convened a binational Jaguar Recovery Team in 2010 to
synthesize information on the jaguar, focusing on an area comprising
jaguars in the northernmost portion of their range, the proposed
Northwestern Recovery Unit. The Jaguar Recovery Team comprises members
from the United States and Mexico, and is composed of two subgroups: A
technical subgroup and an implementation subgroup. The technical
subgroup consists of feline ecologists, conservation biologists, and
other experts, who advise the Jaguar Recovery Team and the Service on
appropriate short- and long-term actions necessary to recover the
jaguar. The implementation subgroup consists of landowners and land and
wildlife managers from Federal, State, tribal, and private entities,
who advise the technical subgroup and the Service on ways to achieve
timely recovery with minimal social and economic impacts or costs.
As stated above and in the proposed rule, we have based jaguar
critical habitat on information compiled and produced by the Jaguar
Recovery Team, to the greatest extent possible. We consider that the
work produced by the Jaguar Recovery Team is the best available
scientific and commercial data, and that following the team's
recommendations is the best avenue for achieving conservation of the
species and, by extension, designating critical habitat. We acknowledge
that the scientific information regarding the jaguar has limitations
and that some of our citations are not specific to these species or
geographic area. Nevertheless, the citations offer evidence in basic
biological responses for similar species, and we would expect a similar
response with the jaguar. Consequently, the Service has used the best
available scientific information to support our decision.
(17) Comment: The Service's process of designating critical habitat
is logical, consistent, and reasonable, and the data used were
carefully evaluated and based on sound ecological principles. The use
of the model to identify areas with features important to the jaguar
habitat allows areas to be evaluated that have not been surveyed, but
have high potential to provide habitat for jaguars. Relying solely on
surveys or anecdotes will almost always yield a flawed product because
surveys never cover all areas of potential interest, are imperfect for
elusive animals that are challenging to detect, and, for species whose
populations are thought to be suppressed, there are almost certainly
areas on the landscape that can function as habitat, but that are
unoccupied because of reduced population levels.
Our response: We agree. In our proposed rule and this final rule,
we used the best available scientific information to support our
decision. Data reviewed by the Secretary may include, but are not
limited to scientific or commercial publications, administrative
reports, maps or other graphic materials, information received from
experts on the subject, and comments from interested parties. We have
based jaguar critical habitat on information compiled and produced by
the Jaguar Recovery Team, to the greatest extent possible. We consider
the work produced by the Jaguar Recovery Team as the best available
scientific and commercial data, and that following the team's
recommendations is the best avenue for achieving conservation of the
species and, by extension, designating critical habitat. The PCEs are
based on the latest jaguar habitat model produced by the Jaguar
Recovery Team (Sanderson and Fisher 2013, entire), which is the best
commercial and scientific data available. Consequently, the Service has
used the best available scientific information to support our decision.
(18) Comment: The Service should have considered the population
viability analysis (PVA) model in their decision process. The
population viability and, related, minimum viable populations, received
only passing reference in the proposed rule and with no articulated
justification. The PVA concept is central to the notion of recovery in
that it informs population targets, which in turn inform habitat
targets (the focus of this decision process).
Our response: During the development of the Recovery Outline and as
a part of the recovery planning process, the Jaguar Recovery Team
worked with the Wildlife Conservation Society to create a jaguar
habitat model (Sanderson and Fisher 2011, pp. 1-11; 2013, entire), and
the Conservation Breeding Specialist Group of the Species Survival
Commission/International Union for Conservation of Nature to conduct a
PVA and population habitat viability analysis (PHVA) 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 for the Northwestern Recovery Unit (not the United
States), as well as provide information relevant to determining
critical habitat for the jaguar. However, the PHVA analysis and PVA
themselves, while informative for recovery-planning purposes, did not
contribute to the determination of critical habitat. Critical habitat
for the jaguar focuses on the physical or biological features available
in the United States that are essential to the conservation of the
species; it is not

[[Page 12610]]

based on an overall number of jaguars, nor is it required to be,
whereas the PVA and PHVA are used to determine a minimum viable
population. The purpose of critical habitat for the jaguar is to
provide 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, which contributes to the overall recovery of the jaguar.
Therefore, the Service relied on habitat features as described in the
preliminary report entitled Digital Mapping in Support of Recovery
Planning for the Northern Jaguar (Sanderson and Fisher 2011, pp. 1-11)
for our August 20, 2012, proposed rule (77 FR 50214), and a later
report entitled Jaguar Habitat Modeling and Database Update (Sanderson
and Fisher 2013, entire) for our July 1, 2013, revised proposed rule
(78 FR 39237) and this final rule. Please see the Criteria Used to
Identify Critical Habitat section of the final rule and our response to
comment number 1 in Peer Reviewer Comments above for further
information about how we incorporated these reports into our
determination.
(19) Comment: The Service should consider mountain lion (puma)
literature where the data and research on jaguars is scant. Mountain
lions, like jaguars, have an exceptionally large range that spans many
degrees of latitude and longitude with different habitat types and are
hypercarnivorous felid ambush predators that exhibit substantial
diversity of diet and specific habitat relations, depending on the
environment. The Service has the inherent authority and ability to use
the best available science regarding connectivity for other similar
species, such as the mountain lion, to make a reasoned judgment about
the most likely areas that would facilitate connectivity for the
jaguar. Consideration of mountain lions also argues against giving
credence to Rabinowitz (1999) and Swank and Teer (1989).
Our response: The Service recognizes the overlap in the ecology of
mountain lions and jaguars; however, we have based jaguar critical
habitat on information compiled and produced by the Jaguar Recovery
Team to the greatest extent possible. The Jaguar Recovery Team
comprises jaguar experts, large-cat experts (knowledgeable about
mountain lions), and stakeholders from the United States and Mexico;
therefore, we consider that the work produced by the team is the best
available scientific and commercial data, and that following the team's
recommendations is the best avenue to designating critical habitat and
conservation of the species.
(20) Comment: We received multiple comments concerning the
characterization of prey abundance. Some noted that the Service should
include actual estimates of prey density in the analysis so as to meet
the best available data standard and to be consistent with treatment of
other habitat factors. Others stated that it is impossible to
characterize prey abundance in any temporally and spatially meaningful
way. Rather, the relative permanent physical and ecological features
that are important to jaguars and their prey (e.g., vegetation
structure and composition, proximity to water, topography) are more
useful for characterizing habitat.
Our response: We have relied on the best available scientific
information on prey that is readily available from the Arizona Game and
Fish Department (Hunt Arizona 2012 Edition, available at: http://www.azgfd.gov/regs/HuntArizona2012.pdf) and the New Mexico Department
of Game and Fish (Harvest Information, available at: http://www.wildlife.state.nm.us/recreation/hunting/). Using this information,
we have determined that white-tailed deer and javelina (the preferred
prey of the jaguar in the northwestern-most part of its range) have
been present in each critical habitat unit for at least 50 years in
Arizona, and have been successfully hunted in each hunt unit
overlapping jaguar critical habitat for the same period of time (Game
Management Units 30A, 34A, 34B, 35A, 35B, 36A, 36B, and 36C). This
information indicates that adequate levels of prey are currently
available in critical habitat units in Arizona, and have been available
for at least 50 years in these units.
Historical harvest information from New Mexico is not as readily
available. However, based on the most recent harvest information,
white-tailed deer and javelina are available in Unit 5 of jaguar
critical habitat (Game Management Unit 27). White-tailed and mule deer
and javelina are likely available in Unit 6 of jaguar critical habitat
(Game Management Unit 26). We can determine that javelina have been
successfully harvested in this Unit 6 (Game Management Unit 26), but
this particular Game Management Unit lumps all deer together, so we are
unable to distinguish hunt success between mule deer and white-tailed
deer. This information indicates that adequate levels of prey are
currently available in critical habitat units located in New Mexico.
(21) Comment: There has been no detailed prey occurrence or density
study cited for the areas under consideration despite recognition that
adequate prey is a major factor in assessing critical habitat.
Our response: See our response to comment number 20 in Peer
Reviewer Comments above.
(22) Comment: The Service should consider that jaguar observations
would likely be biased towards areas where there was more human
activity together with greater visibility, specifically: nearer water
sources, in less rugged areas, in areas with less forest or shrub
cover, in areas with better access, and in areas with more human
residences. This is not intrinsically problematic, but this
precautionary bias should be recognized and explained.
Our response: We acknowledge that certain types of bias could be
evident in jaguar observations due to their cryptic, nocturnal, and
predatory nature. However, based on section 4(b)(1)(A) of the Act, the
Secretary is required to make determinations on the basis of the best
scientific and commercial data available.
(23) Comment: The Service should understand that just because
under-use of habitat near human facilities has been demonstrated, it
does not mean that individual animals will not use areas near people as
a result of or in the process of losing their fear. As long as jaguars
are not harassed or killed at a high rate around human facilities,
there is a high likelihood that jaguars could heavily use otherwise
suitable habitats near people, in areas where the HII is greater than
20.
Our response: We recognize that male jaguars have been documented
near roads, but the data do not indicate that this is where the
majority of jaguar sightings occur. Further, based on section
4(b)(1)(A) of the Act, the Secretary is required to make determinations
on the basis of the best scientific and commercial data available. We
have determined that the best scientific data available is that which
has been compiled and produced by the Jaguar Recovery Team. Therefore,
while we acknowledge that some jaguars may be able to use areas of a
higher HII, for the purposes of critical habitat we are using the range
of values recommended by the Jaguar Recovery Team in the northern
portion of the proposed Northwestern Recovery Unit.
(24) Comment: The Service received multiple comments regarding the
use of different habitat models for designating critical habitat
corridors. Some recommended using specific models such as Beier et al.
(2006) and

[[Page 12611]]

Rabinowitz and Zeller (2010). Others recommended using Pima County
Wildlife Connectivity Assessment and Arizona's Wildlife Linkages
Assessment. One recommended using a thesis by M. Rudy. Others
recommended using features on the landscape such as rivers, streams,
draws, washes, and wetlands. Others recommended using mountain lion
data or other corridor data regarding corridor width.
Our response: In response to the various models recommended, we
understand there are different approaches to modeling jaguar habitat
than the method we used, each involving different methodologies,
assumptions, and data layers. However, we believe that the information
collected by the Jaguar Recovery Team and the latest habitat model the
team produced (Sanderson and Fisher 2013, entire) is the best available
scientific data, and is appropriate to inform critical habitat for the
jaguar. Their methodology closely follows another jaguar habitat
mapping effort conducted by Hatten et al. (2005, entire), and
essentially involves determining the habitat features most relied upon
by jaguars in the northwestern-most part of the species' range by
overlaying spatial data layers representing these habitat features with
observations of jaguars within this range (see the Criteria Used to
Identify Critical Habitat section of the final rule for more detailed
information). Additionally, by following the Sanderson and Fisher
(2013) methodology, final critical habitat works alongside and supports
the recovery-planning process in that the information used for both
processes is compatible.
(25) Comment: The Service should connect critical habitat units in
the United States because sufficient connectivity between critical
habitat units within the United States is needed.
Our response: See our response to comment number 8 in Peer Review
Comments above.
(26) Comment: The Service should connect critical habitat units in
the United States because connectivity is needed to facilitate
dispersal events, adaptation to changing environmental conditions, and
genetic exchange.
Our response: As described in the final rule, the purpose of
critical habitat is to provide 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 Mexico. We have determined that the designated areas are
adequate for these purposes.
(27) Comment: The Service should connect critical habitat units in
the United States because connectivity is needed to mitigate for
border-related activities that may sever connectivity to Mexico.
Our response: All projects with a Federal nexus proposed within
jaguar critical habitat in the United States will be evaluated on a
case-by-case basis with respect to section 7 of the Act to ensure they
do not destroy or adversely modify designated areas. Please see our
response to comment number 8 Peer Review Comments above regarding
connectivity of critical habitat.
(28) Comment: The Service should connect critical habitat units in
the United States because connectivity is needed to support 50 to 100
jaguars in Arizona and New Mexico.
Our response: Please see our response to comment number 4 Peer
Review Comments above.
(29) Comment: The Service has not explained the placement of
Subunits 4b and 4c. In particular, the placement of 4b is not supported
by the best scientific data, and the Service has not justified
including this subunit and does not provide empirical data (data
acquired by means of observation or experimentation).
Our response: Subunits 4b and 4c do not contain all of the PCEs,
nor are they required to, as these subunits are considered unoccupied.
Section 3 of the Act requires that the Service designate critical
habitat in 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. Subunits 4b and 4c
contain a combination of low human influence and either or both canopy
cover and ruggedness such that they represent areas through which a
jaguar may travel between the United States and Mexico. These critical
habitat subunits provide connectivity between critical habitat units
within the United States, and they provide connectivity between the
United States and Mexico.
(30) Comment: The Service should include the least-cost corridor
modeled by Rosemont Mine to replace Subunit 4b, as well as the
elimination of Subunit 4b altogether because Subunit 4c provides a more
direct route to Mexico from Subunit 4a.
Our response: In determining the most likely areas that would
connect Subunit 4a to Mexico (by connecting to Unit 3), we again relied
on data provided by the Jaguar Recovery Team, which we consider the
best available scientific data. These subunits contain a combination of
low human influence and either or both canopy cover and ruggedness such
that they represent areas through which a jaguar may travel between
Subunit 4a and Mexico. Either Subunit 4b or 4c may be used by a jaguar
based on these habitat characteristics; therefore, we have no reason
not to include these areas as critical habitat, regardless of which one
provides a more direct connection to Mexico, as both subunits provide
connectivity to Mexico through Unit 3.
(31) Comment: Future human impacts within Subunit 4c will render
that subunit nonviable.
Our response: We understand that additional human impacts from
future development on private or State lands could occur. However,
critical habitat does afford protection to the jaguar through section 7
consultation under 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. 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. Therefore,
actions that are funded, permitted, or carried out by a Federal agency
within jaguar critical habitat will continue to be evaluated to
determine their impacts on critical habitat.
(32) Comment: The single observation of a jaguar along the Santa
Cruz River contains considerable information of relevance to
identifying corridors, especially if framed in terms of prior knowledge
of jaguar ecology elsewhere.
Our response: Please see our response to comment number 8 Peer
Review Comments above regarding connectivity of critical habitat.
(33) Comment: The Service should consider that numerous scientific
publications (some cited by the proposed rule) make the case for
foreseeable warming and drying of the regions in question; which is to
say that the hypotheses (models of the world) tacitly adopted by the
proposed rule are not defensible in light of the best available
scientific information. Additional numerous publications describe not
only projected geospatial patterns of warming and drying based on
regional general circulation models, but also projected geospatial
changes in vegetation and plant species distributions for biomes and
species that

[[Page 12612]]

contribute directly to the proposed rule's definition of essential
jaguar habitat. It is plausible that portions of the United States
could become crucial to persistence of jaguars due to climate change.
Our response: The Service considered numerous scientific
information sources as cited in our proposed rule and this final rule.
The Service recognizes that some species are shifting their geographic
ranges, often moving poleward or upwards in elevation (National Fish,
Wildlife, and Plants 2012, p. 10). Range shifts are not always
negative: habitat loss in one area may be offset by an increase
elsewhere such that if a species is able to disperse, it may face
little long-term risk. However, it is clear that shifting distributions
can lead to a number of new challenges (National Fish, Wildlife, and
Plants 2012, p. 26). Changes in climate can have a variety of direct
and indirect ecological impacts on species, and can exacerbate the
effects of other threats. Climate-associated environmental changes to
the landscape, such as decreased stream flows, increased water
temperatures, reduced snowpack, and increased fire frequency, can
affect species and their habitats. The vulnerability of a species to
climate change impacts is a function of the species' sensitivity to
those changes, its exposure to those changes, and its capacity to adapt
to those changes. The Service acknowledges in the proposed rule and
this final rule that climate change has the potential to adversely
affect the jaguar within the next 50 to 100 years (Jaguar Recovery Team
2012, p. 32). However, the degree to which climate change will affect
jaguar habitat in the United States is uncertain. Further, 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. Consequently, because the specific impacts of climate change
on jaguar habitats remains uncertain at this time, we did not recommend
any areas be designated as critical habitat specifically to account for
the negative effects of climate change.
(34) Comment: Clarify the exclusion of manmade features,
specifically if a road runs through a wilderness area, would this
entire area be excluded from critical habitat or just the road?
Our response: A road through a wilderness area would be excluded
from critical habitat because it does not contain the physical or
biological features essential to the jaguar's conservation. 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. However, the presence of a road does not
exclude an area of 100 km\2\ that contains all the PCEs from being
designated as critical habitat. Areas in which the HII calculated over
1 km\2\ (0.4 mi\2\) is 20 or less are considered an essential component
of the physical or biological feature essential for the conservation of
the jaguar in the United States.
(35) Comment: Clarify what expansive open space is.
Our response: Expansive open spaces in the southwestern United
States is defined as areas of at least 100 km\2\ (32 to 38.6 mi\2\) 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 from greater than 1 to 50 percent canopy cover
within Madrean evergreen woodland, generally recognized by a mixture of
oak (Quercus spp.), juniper (Juniperus spp.), and pine (Pinus spp.)
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 below
2,000 m (6,562 feet) in elevation; and (7) are characterized by minimal
to no human population density, no major roads, or no stable nighttime
lighting over any 1-km\2\ (0.4-mi\2\) area.
(36) Comment: Clarify habitat-related terminology (i.e., habitat,
suitable habitat, high-quality habitat, essential habitat, and critical
habitat), especially the relations of one term to another, and maintain
its use throughout.
Our response: The terms suitable habitat, high-quality habitat, and
essential habitat are not used in the final rule. Critical habitat is
defined within the proposed rule and this final rule.

Comments From States

(37) Comment: There is no habitat in the United States that is
critical to the recovery of the jaguar or its survival as a species.
Our response: See our response to comment number 1 in Peer Reviewer
Comments above.
(38) Comment: Jaguar critical habitat in the United States is not
essential because jaguars have persisted in the Northern Recovery Unit
for the last 50 years with no evidence of breeding in the United States
during that time.
Our response: Evidence of breeding is not required for an area to
be designated as critical habitat. See our response to comment number
11 in Peer Reviewer Comments above.
(39) Comment: Designation of critical habitat is not due to new
data but due to litigation. The Service's previous 1997 and 2006 not-
prudent determinations for designating critical habitat for the jaguar
were valid decisions, but the 2010 prudent determination to designate
critical habitat for the jaguar is not valid. The court did not order
the Service to designate critical habitat, but rather to determine if
the physical and biological features upon which jaguars depend could be
found in the United States and, if so, were essential to the
conservation of the species.
Our response: The Service has identified critical habitat for the
jaguar in accordance with the Act and its implementing regulations. The
Service has determined that designation of critical habitat for the
jaguar is prudent and determinable based on the best scientific data
available. Section 4(a)(3)(A) of the Act states that critical habitat
shall be designated for endangered and threatened species to the
maximum extent prudent and determinable. Therefore, we are required to
designate critical habitat for the jaguar to fulfill our legal and
statutory obligations. See our responses to comment numbers 1 and 2 in
Peer Review Comments above.
(40) Comment: There are no physical or biological features to
support jaguars, and, therefore, there is no jaguar habitat in New
Mexico.
Our response: We have determined that the physical or biological
feature for jaguar critical habitat and the associated PCEs are present
in the United States, including New Mexico. To the greatest extent
possible, we have based jaguar critical habitat on information compiled
and produced by the Jaguar Recovery Team. The Jaguar Recovery Team
comprises jaguar experts, large-cat experts, and stakeholders from the
United States and Mexico; therefore, we consider that the work produced
by the team is the best available scientific and commercial data, and
that following the team's recommendations is the best avenue to
designating critical habitat and conservation of the species.
(41) Comment: Habitat in New Mexico and Arizona is marginal for the
jaguar; therefore, it is not essential.
Our response: Section 3(5)(A) of the Act defines critical habitat
as the

[[Page 12613]]

specific areas within the geographical area occupied by the species, at
the time it is listed on which are found those physical or biological
features essential to the conservation of the species. As described in
the final rule, the recovery function and value of critical habitat for
the jaguar within the United States is to 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. The
Northwestern Recovery Unit is essential for the conservation of the
species; therefore, areas within New Mexico containing the physical and
biological feature and associated PCEs are essential to the jaguar.
(42) Comment: The Service did not use the correct listing time
period to determine occupancy. The commenter is concerned that the
Service used data from 1982 to the present.
Our response: The Service's designation of occupied critical
habitat is in compliance with the Act. Determining jaguar occupancy at
the time of listing is particularly difficult given that: (1) Jaguars
were rare on the landscape in the United States at the time of listing,
making those individuals that may have been present more difficult to
detect; (2) jaguars require expansive open spaces for each individual,
thus reducing the likelihood of detecting them; (3) jaguars are highly
mobile and inhabit rugged, remote areas, thus we cannot be sure that a
lack of detection indicates that the species is absent; and (4) no
effort was made to detect jaguars in the United States from 1972 to
1997. As discussed in the proposed rule and this final rule, our
intention was to list the species throughout its entire range at the
time it was added to the Endangered Species Conservation Act in 1972;
therefore, we determine that 1972 is the date the species was listed.
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 lifespan
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. Based on the best available information related to
jaguar rarity, biology, and survey effort, we determine that areas
containing undisputed Class I records from 1962 (10 years prior to
listing, which is the average lifespan of a jaguar) to the present
(September 11, 2013) may have been occupied by jaguars at the time of
listing.
The second part of the Act's definition of critical habitat is
defined as specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination by the Secretary
that such areas are essential for the conservation of the species. For
these reasons, we also analyzed whether or not critical habitat areas
are essential to the conservation of the species. 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,
March 30, 1972). 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, an argument could 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 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 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, whether or not they
were occupied at the time of listing, we are designating those areas as
critical habitat.
(43) Comment: The revised proposed rule is based on highly
inaccurate and notoriously unreliable jaguar records rather than the
Class I records standard that the Service established.
Our response: In determining areas that may be occupied by jaguars,
we used undisputed Class I records from 1962 through September 11,
2013. We understand that some of the jaguar records used in our
proposed rule may be disputed due to the possibility that female scat
was used as a scent lure in some areas. Therefore, we removed all
sightings that may have been influenced by female scat, which we
determined to be from October 3, 2008 (the date of Emil McCain's
request for jaguar scat from the Phoenix Zoo) through March 2, 2009
(the date Macho B was captured and flown to the Phoenix Zoo). See
``Class I Records'' section above and Table 1 above of this final rule
for all of the undisputed Class I jaguar records used to determine
occupancy.
In determining the physical and or biological features essential to
the jaguar in the northwestern most part of its range, we relied on
information compiled and produced by the Jaguar Recovery Team, which we
consider the best available science. Our August 20, 2012 (77 FR 50214),
proposed critical habitat designation was based on a preliminary report
from the Jaguar Recovery Team entitled Digital Mapping in Support of
Recovery Planning for the Northern Jaguar (Sanderson and Fisher 2011,
pp. 1-11), which described a model for mapping jaguar habitat in the
northwestern-most part of the species range. This 2011 report relied on
333 records of mapped jaguar observations across habitat variables to
determine a categorization of the variables and selection of categories
to include in the model.
These 333 records included cultural evidence of jaguars (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)). This means that these records included Class I
(observations with physical evidence for verification, such as a skin,
skull, or photo), Class II (observations with detailed information but
no physical evidence, such as a first-hand report from a qualified
individual), and Class III (all other observations, such as second- or
third-hand reports of a jaguar) sightings. We refined this model
further for proposed critical habitat in the United States by analyzing
the same habitat variables, but we used only undisputed Class I jaguar
observations in the United States from 1962 to mid-2012 (which, at that
time, was 130 observations). This resulted in slightly

[[Page 12614]]

different ranges of habitat variables in some cases (specifically for
canopy cover and the Human Influence Index) for proposed critical
habitat than the range of habitat variables described in the 2011
habitat modeling report (Sanderson and Fisher 2011, pp. 1-11).
Since the publication of the proposed rule, the Jaguar Recovery
Team continued to refine the jaguar habitat model. By including jaguar
observations in addition to the 333 used in the preliminary 2011 report
(described in Sanderson and Fisher 2013, pp. 3 and 7), developing a
method to avoid pseudo-replication (many locations of the same animal
in close proximity in time and in space) from camera trap and
radiotelemetry studies (Sanderson and Fisher 2013, p. 3), and applying
criteria and filters to the jaguar observation database to further
refine the habitat variables included in the model (Sanderson and
Fisher 2013, pp. 3-5 and Appendix 2; note that this resulted in
splitting the proposed Northwestern Recovery Unit into northern and
southern portions, each with a different range selected for some
habitat variables (Sanderson and Fisher 2013, pp. 7 and 20)). This
resulted in an updated habitat model, which was included in a final
report we received in March 2013, entitled Jaguar Habitat Modeling and
Database Update (Sanderson and Fisher 2013, entire).
In the updated jaguar habitat model, Sanderson and Fisher (2013,
pp. 3-5 and Appendix 2) utilized all jaguar observations for which the
description of the location was sufficient to place it with certainty
within 10 km (6.2 mi) of its actual location, and for which a date to
the nearest century was available. This resulted in 453 observations
(note that the 452 included in Table 1.3 of Sanderson and Fisher (2013,
p. 13) is incorrect) for inclusion in the updated model including Class
I, II, and III sightings, but removed any sightings recorded as cat,
spotted cat, or large quadruped (four-footed animal), as well as
locations that were described too generally to accurately locate on a
map (e.g., southern Arizona). The reason for selecting these
observations to use in the habitat model was because the Jaguar
Recovery Team came to the consensus this was appropriate after
analyzing these jaguar observations through three different evidence
filters: (1) Physical evidence only (photograph or video, skull, hide,
or carcass measured; the equivalent of a very strict interpretation of
Class I records), (2) physical and sign evidence (similar to the
previous, but also including tracks, jaguar kills, and other physical
evidence; the equivalent of Class I records), and (3) all evidence
types (similar to the previous, but also including first, second, and
third-hand reports of jaguars, cultural artifacts, stories, and
representations of jaguars, and other types of evidence; the equivalent
of Class I, II, and III records; see Table 1.4 of Sanderson and Fisher
(2013, p. 14) for a complete list of evidence types). Using these
filters, Sanderson and Fisher (2013, pp. 3-5 and Appendix 2) analyzed
the frequency that these 453 jaguar observations occurred across the
range of habitat variables used in the model.
Upon viewing this analysis, the Jaguar Recovery Team determined
that the overall pattern of frequencies of these observations relative
to the habitat variables were similar, meaning that regardless of the
type of evidence used (physical evidence only, physical and sign
evidence, or all evidence), jaguar observations in relation to the
habitat variables occurred with the same frequency. The Jaguar Recovery
Team hypothesized that this is because jaguars are habitat generalists,
with jaguar habitat generally defined as cover, prey, and limited human
persecution within the proposed Northwestern Recovery Unit. The Jaguar
Recovery Team, therefore, decided to use all types of evidence, because
that resulted in the largest number of observations (453; note that the
452 included in Table 1.3 of Sanderson and Fisher (2013, p. 13) is
incorrect) for inclusion in the updated model.
To further analyze the frequency of jaguar observations relative to
habitat variables, the Service analyzed a subset of recent, highly
accurate jaguar locations from Mexico and the United States to
determine if filtering the observations in this way would influence the
frequency that these observations occurred across the range of habitat
variables. From the 453 observations used in the updated habitat model
(Sanderson and Fisher 2013, entire), we selected records that met the
following criteria: (1) They were part of a scientific study (and
therefore utilized Global Positioning System (GPS) or radiotelemetry
receivers); (2) they were not disputed due to the possible use of scent
lure; and (3) they were from May 2000 forward (the time that public GPS
receivers became more accurate because the intentional degradation of
public GPS signals implemented for national security reasons was
discontinued; see http://www.gps.gov/systems/gps/modernization/sa/for
more information). Additionally, the same criteria to avoid pseudo-
replication (Sanderson and Fisher 2013, p. 3) were applied to this
subset of data. This resulted in 333 observations, 44 of which are
located in the United States (note that the reason the number of
observations in the United States in this dataset is less than the
number of observations used to determine critical habitat in our
proposed rule is because of the methods the Jaguar Recovery Team
developed to avoid pseudo-replication from camera trap and
radiotelemetry studies; these methods were not applied to the dataset
we used for our August 20, 2012, proposed rule). We also separated
jaguar records from north to south in the same manner that Sanderson
and Fisher (2013, p. 20) did for the tree cover and HII habitat
variables.
The results of our additional analysis indicate that the overall
pattern in frequency of jaguar observations using these highly accurate
locations relative to the habitat variables is similar to the patterns
observed using the entire data set used for the updated habitat model
(Sanderson and Fisher 2013, entire). For example, 95 percent of these
highly accurate locations are found in greater than 1 to 50 percent
tree cover (for all jaguar observations except those in the
southernmost part of the proposed Northwestern Recovery Unit); 97
percent correspond to a HII of less than 20 (for all jaguar
observations except those in the southernmost part of the proposed
Northwestern Recovery Unit); 99 percent are within 10 km (6.2 mi) of
water; 75 percent are in intermediately, moderately, or highly rugged
terrain; and 98 percent are found at less than 2,000 m (6,562 ft) in
elevation. Therefore, for the reasons stated above, we determine that
the Sanderson and Fisher (2013, entire) updated habitat model is not
unreliable because it incorporates jaguar observations for which there
is no physical evidence, and that the information from the Jaguar
Recovery Team is the best available science regarding the habitat
characteristics that are essential to the jaguar in the northwestern-
most part of its range.
In the revised proposed rule and this final rule, we did not
further refine the updated habitat model by using only Class I jaguar
locations specific to the United States like we did in our analysis for
the proposed rule, because we determined that the ranges of habitat
variables selected by the Jaguar Recovery Team in the northern part of
the proposed Northwestern Recovery Unit adequately represent available
habitat for jaguars in the United States. We used the same data layers
and ranges of habitat variables as used in the updated jaguar habitat
model (Sanderson and Fisher 2013, entire) to

[[Page 12615]]

determine the PCEs of jaguar critical habitat in the United States.
However, in two cases we substituted data layers for variables for
which more detailed, higher-resolution data were available for the
United States: (1) For water sources we substituted the United States
Geological Services (USGS) National Hydrography Dataset (NHD)
(available at http://nhd.usgs.gov/data.html) for USGS HydroSHEDS, and
(2) for vegetation communities we substituted Brown and Lowe (1980)
Biotic Communities of the Southwest (available at http://azconservation.org/downloads/biotic_communities_of_the_southwest_gis_data) for World Wildlife Fund Ecoregions (note that the World
Wildlife Fund Ecoregions habitat type representing the Sky Islands
region in the Jaguar Recovery Team updated model was Sierra Madre
Occidental pine-oak forests, for which we substituted the
classifications of Madrean evergreen woodland and semidesert grassland
from Biotic Communities of the Southwest to represent the Sky Islands
region). The other data sources in the updated model include: (1)
MODerate-resolution Imaging Spectroradiometer (MODIS) Tree cover for
canopy cover (continuous field data) (available at http://glcf.umd.edu/data/vcf/); (2) Advanced Spaceborne Thermal Emission and Reflection
Radiometer (ASTER DEM) for ruggedness and elevation (available at
https://wist.echo.nasa.gov); and (3) Human Influence Index (HII) for
human influence (available at http://sedac.ciesin.columbia.edu/wildareas/) (to exclude cities, agricultural and developed rural
areas). Sanderson and Fisher (2013, entire) did not use a data layer
for prey, nor did we. See our response to comment number 20 in Peer
Reviewers Comments. See the Criteria Used to Identify Critical Habitat
section of the final rule for more information. In summary, we used
only Class I undisputed sightings to define the occupied area, but
after the sensitivity analysis described above we determined it was
acceptable to use the habitat analysis based on a larger category of
sightings.
(44) Comment: There is no long-term presence, sustained use, or
reproduction of jaguars in the United States.
Our response: The Act does not require a breeding or reproducing
population of jaguars, long-term presence of jaguars, or sustained use
by jaguars for the purposes of designating critical habitat. See our
response to comment number 11 in the Peer Reviewer Comments above.
(45) Comment: The Service states in the proposed rule that they
designate critical habitat in areas outside the geographical area
occupied by a species only when a designation limited to its range
would be inadequate to ensure the conservation of the species. The area
currently occupied by the jaguar outside the United States is adequate
for the conservation of the jaguar.
Our response: See our response to comment number 1 in Peer
Reviewers Comments above.
(46) Comment: The Service's critical habitat analysis and
designation are scientifically invalid and incomplete in nature.
Without an adequate, quantitative, science-based understanding of all
components of jaguar habitat requirements, critical habitat cannot and
should not be designated. The data are insufficient to understand
jaguar habitat.
Our response: See our response to comment number 16 in Peer Review
Comments above.
(47) Comment: The Service has accurately described habitat, but it
does not mean these areas are essential.
Our response: The Service has designated critical habitat in
compliance with the Act. Section 3(5)(A) states that the Service shall
designate geographic areas occupied by the species at the time it was
listed if they contain physical or biological features, which are
essential to the conservation of the species, and 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. In the proposed rule and this final rule we have
determined that areas in the United States occupied by the species at
the time it was listed contain the physical or biological feature for
jaguar critical habitat and the associated PCEs are present. 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. Providing connectivity from the United States to Mexico
is a key element to maintaining those processes. The ability for
jaguars in the proposed Northwestern Recovery Unit to utilize physical
and biological habitat features in the borderlands region is
ecologically important to the recovery of the species; therefore,
maintaining connectivity to Mexico is essential to the conservation of
the jaguar. Consequently, we have also determined that areas in the
United States outside the geographical area that may be occupied by the
species at the time it is listed are essential to the conservation of
the jaguar by providing connectivity to Mexico (PCE 1) in areas
containing low human influence and impact, and either or both
vegetative cover or rugged terrain. It is our intent that the
designation of critical habitat will protect the functional integrity
of the features essential for jaguar life-history requirements for this
purpose into the future.
(48) Comment: There are no PCEs in Arizona.
Our response: The best available scientific data indicates PCEs are
present in Arizona. To the greatest extent possible, we have based
jaguar critical habitat on information compiled and produced by the
Jaguar Recovery Team. The Jaguar Recovery Team comprises jaguar
experts, large-cat experts, and stakeholders from the United States and
Mexico; therefore, we consider that the work produced by the team is
the best available scientific and commercial data, and that following
the team's recommendations is the best avenue to conservation of the
species and by extension designating critical habitat. We have
determined that the essential physical or biological feature for jaguar
critical habitat and the associated PCEs are present in the United
States, and that these areas 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.
(49) Comment: The Arizona Game and Fish Department's Jaguar
Conservation Assessment is the best science.
Our response: The Arizona Game and Fish Department's Jaguar
Conservation Assessment provides valuable information regarding the
status of the jaguar in Arizona, New Mexico, and northern Mexico. The
Service considered and utilized this information in this final rule.
See Johnson et al. (2011) as referenced in the final rule.
(50) Comment: The Service did not use the best available science
because we utilized McCain and Childs (2008), in which female scat was
used as scent lure.
Our response: The Service used the best available science to
determine critical habitat for the jaguar. We understand that some of
the jaguar records used in our proposed rule may be disputed due to the
possibility that female scat was used as a scent lure in some areas.
Therefore, we removed all sightings that may have been influenced

[[Page 12616]]

by female scat, which we determined to be from October 3, 2008 (the
date of Emil McCain's request for jaguar scat from the Phoenix Zoo)
through March 2, 2009 (the date Macho B was captured and flown to the
Phoenix Zoo). See our response to comment number 43 in Comments from
States above.
(51) Comment: The designation of critical habitat is because the
Service is trying to avoid further litigation.
Our response: See our response to comment numbers 1 and 2 in the
Peer Reviewer Comments above.
(52) Comment: The Service should not designate critical habitat
because a PVA demonstrates that establishing a population of jaguars in
the United States would destabilize populations in Sonora.
Our response: We disagree that designating critical habitat will
destabilize the nearest breeding population in Mexico, and we disagree
that habitat in the United States is a population sink. The purpose of
designating critical habitat in the United States is not to create a
self-sustaining, breeding population north of the U.S.-Mexico border,
but to provide small patches of habitat (perhaps in some cases with a
few resident jaguars) to allow for the cyclical expansion and
contraction of the nearest core area in Mexico. See our response to
comment number 18 in the Peer Reviewer Comments above.
(53) Comment: Given the heavy reliance that the Service places on
the results of PVA models such as those presented by Miller (2013) to
support the designation of critical habitat, we request that the data
and complete modeling information be provided to the public such that
the assumptions and specifics of these analyses can be properly and
transparently analyzed.
Our response: The Service did not use the PVA to designate critical
habitat for the jaguar. The Service originally planned to use the PVA
in designating critical habitat for the jaguar; however, we realized
that the habitat models (Sanderson and Fisher 2011, pp. 1-11; 2013,
entire) created for the PHVA and PVA processes were the components that
could best inform critical habitat for the jaguar in the United States.
During the development of the Recovery Outline and as a part of the
recovery planning process, the Jaguar Recovery Team worked with the
Wildlife Conservation Society to create a jaguar habitat model
(Sanderson and Fisher 2011, pp. 1-11; 2013, entire), and the
Conservation Breeding Specialist Group of the Species Survival
Commission/International Union for Conservation of Nature to conduct a
PVA and PHVA 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 for the Northwestern
Recovery Unit (not the United States), as well as provide information
relevant to determining critical habitat for the jaguar. In both
analyses, the focus was on the habitat and jaguar population in the
Northwestern Recovery Unit. However, the PHVA and PVA themselves, while
informative for recovery-planning purposes, did not contribute to the
determination of critical habitat.
Critical habitat for the jaguar focuses on the physical or
biological features available in the United States that are essential
to the conservation of the species; it is not based on an overall
number of jaguars, nor is it required to be, whereas the PVA is used to
determine a minimum viable population. The purpose of critical habitat
for the jaguar is to provide 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, which contributes to the
overall recovery of the jaguar. Therefore, the Service relied on
habitat features as described in the preliminary report entitled
Digital Mapping in Support of Recovery Planning for the Northern Jaguar
(Sanderson and Fisher 2011, pp. 1-11) for our August 20, 2012, proposed
rule (77 FR 50214), and a later report entitled Jaguar Habitat Modeling
and Database Update (Sanderson and Fisher 2013, entire) for our July 1,
2013, revised proposed rule (78 FR 39237) and this final rule. Please
see the Criteria Used to Identify Critical Habitat section of the final
rule above and our response to comment number 18 in the Peer Reviewer
Comments above for further information about how we incorporated these
reports into our determination.
(54) Comment: The Service should not use the PVA (Miller 2013)
because it relies on dubious data produced by McCain and Childs and
other undisclosed data, the data has undergone 13 iterations of
analysis, it is fatally flawed by substitution of untested hypotheses
for data, the authors never cited any study of the prey base of the
jaguar, it does not provide the necessary details to replicate the
results of Miller (2013), it contradicts the treatment of parameter
assumptions by the Service, it lacks sensitivity analyses to inform the
consequences of model assumptions, and natural and human-caused
catastrophes are not included. Miller (2013) inappropriately interprets
the results of its reported PVA models, and the Service has implicitly
accepted the assumptions of Miller (2013) that dispersal costs and
drought have no effect on jaguar populations.
Our response: See our response to comment number 53 in Comments
from States above.
(55) Comment: Jaguar habitat cannot be determined without a full
understanding of the jaguar's prey requirements and the availability of
prey species within a habitat location to meet those requirements.
Our response: See our response to comment number 20 in the Peer
Reviewer Comments above.
(56) Comment: The Service did not use data regarding the
distribution of native prey in designating critical habitat. The
Service has not presented and has refused to consider any relevant
scientific data regarding the prey component of habitat for the jaguar
within the proposed critical habitat boundaries.
Our response: We have relied on the best available scientific
information that is readily available from the Arizona Game and Fish
Department (Hunt Arizona 2012 Edition, available at: http://www.azgfd.gov/regs/HuntArizona2012.pdf) and the New Mexico Department
of Game and Fish (Harvest Information, available at: http://www.wildlife.state.nm.us/recreation/hunting/). The Service did not
receive additional data on prey abundance sufficient to include in
critical habitat modeling efforts during any of the three comment
periods. See our response to comment number 20 in the Peer Reviewer
Comments above.
(57) Comment: Without an adequate, quantitative, science-based
understanding of year-round water availability, critical habitat should
not be designated.
Our response: We have determined that waters within 20 km (12.4 mi)
of each other are available within the designated critical habitat. We
consider the best available information for water sources in the United
States as that produced by the USGS through their National Hydrography
Dataset (NHD) (see our response to comment number 43 for a Web site
link to the GIS data layer). For water sources, Sanderson and Fisher
(2013, p. 6) utilized USGS HydroSHEDS in their updated model because
this data layer covers both the United States and Mexico. In our
modeling analysis, we substituted the USGS NHD because this data layer

[[Page 12617]]

provides higher-resolution data within the United States. The USGS NHD
data layer indicates that there are no areas within critical habitat
lacking waters within 20 km (12.4 mi) of each other. We understand that
the availability of water across the landscape during the year is
variable. Regardless, according to the best available scientific data,
it appears that there is sufficient water available for jaguars within
the final critical habitat designation.
(58) Comment: The Service fails to account for ecological changes
as the result of climate change or climate-based factors that would
eliminate proposed habitat. If the predicted climate change for the
Southwest is hotter and drier, then the designated critical habitat
would not have the capability to support jaguars; therefore, the
Service should not designate critical habitat.
Our response: The Service recognizes that 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) and the projections presented for the Southwest predict
warmer, drier, and more drought-like conditions (Hoerling and Eischeid
2007, p. 19; Seager et al. 2007, p. 1181). Further, the Service
acknowledges in the proposed rule and this final rule that climate
change has the potential to adversely affect the jaguar within the next
50 to 100 years (Jaguar Recovery Team 2012, p. 32). The Service
recognizes in the proposed rule and this final rule that 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.
Consequently, because the specific impacts of climate change on jaguar
habitats remains uncertain at this time, we did not recommend any areas
be designated as critical habitat or not be designated as critical
habitat specifically to account for the negative effects of climate
change.
(59) Comment: The Service should not consider climate change models
because they cannot be downscaled to the level of the jaguar critical
habitat.
Our response: The Service recognizes that the current climate
change models are not downscaled to a local level. Projections of
climate change globally and for broad regions through the 21st century
are based on the results of modeling efforts using state-of-the-art
Atmosphere-Ocean General Circulation Models and various greenhouse gas
emissions scenarios (Meehl et al. 2007, p. 753; Randall et al. 2007,
pp. 596-599). As is the case with all models, uncertainty is associated
with the projections due to assumptions used and other features of the
models. However, despite differences in assumptions and other
parameters used in climate change models, the overall surface air
temperature trajectory is one of increased warming in comparison to
current conditions (Meehl et al. 2007, p. 762; Prinn et al. 2011, p.
527). Among the IPCC's projections for the 21st century are the
following: (1) Warmer and more frequent hot days and nights over most
of the earth's land areas are virtually certain; (2) increased
frequency of warm spells and heat waves over most land areas is very
likely, and the frequency of heavy precipitation events will increase
over most areas; and (3) increases will likely occur in the incidence
of extreme high sea level (excludes tsunamis), intense tropical cyclone
activity, and the area affected by droughts in various regions of the
world (IPCC 2007b, p. 8).
Climate simulations of the Palmer Drought Severity Index (a
calculation of the cumulative effects of precipitation and temperature
on surface moisture balance) for the Southwest for the periods of 2006
to 2030 and 2035 to 2060 show an increase in drought severity with
surface warming. Additionally, drought still increases even during
wetter simulations because of the effect of heat-related moisture loss
through evaporation and evapotranspiration (Hoerling and Eischeid 2007,
p. 19). Annual mean precipitation is likely to decrease in the
Southwest, as is the length of snow season and snow depth (IPCC 2007b,
p. 887). Most models project a widespread decrease in snow depth in the
Rocky Mountains and earlier snowmelt (IPCC 2007b, p. 891). The Service
will continue to follow and assess the science behind climate change
and update our summaries as new information is published.
(60) Comment: There are no areas requiring special management.
Our response: Section 3(5)(A)(i) of the Act states that the
physical and biological features essential to the conservation of the
species ``may'' require special management considerations or
protections. The Act does not state that those features must require
such management or protection. Nonetheless, special management
considerations of the physical and biological feature essential to the
conservation of the jaguar may be needed to alleviate the effects on
jaguar habitat of road, power line, and pipeline projects; human
developments; mining operations; and ground-based military activities.
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.
(61) Comment: The designation of jaguar critical habitat will limit
game management activities and recreational activities, such as
hunting, and litigation will be used to impact game activities.
Our response: 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.
In our economic analysis we considered all of the potential
additional conservation efforts or restrictions that could occur as the
result of the addition of critical habitat. We found the incremental
effects of the critical habitat designation to be relatively minor, as
additional measures beyond those already in place are unlikely. We
found that the designation of critical habitat for the jaguar would not
have direct impacts on the environment as designation is not expected
to impose land use restrictions or prohibit land use activities.
Further, the species is already present in the United States. We
are not proposing to reintroduce or supplement the existing jaguars in
the United States. The designation of critical habitat does not
translate into an increase of jaguars in the United States. As
discussed in the proposed rule and this final rule, the purpose of
designating critical habitat in the United States is to provide areas
for transient jaguars (with possibly a few residents) to support the
nearest breeding area to the south in Mexico, allowing this population
to expand and contract, and, ultimately, recover. It is our intent that
the designation of critical habitat will protect the functional
integrity of the features essential for jaguar life-history
requirements for this purpose into the future.

[[Page 12618]]

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. Any of these or other actions on Federal lands that
may affect the jaguar or its designated critical habitat would be
required to consult with the Service to ensure those actions are not
adversely modifying its critical habitat. However, consultation is
already required in occupied areas because the jaguar is listed as an
endangered species. All projects with a Federal nexus proposed within
jaguar critical habitat in the United States will be evaluated on a
case-by-case basis with respect to section 7 of the Act.
(62) Comment: The Service should provide maps delineating the PCEs.
Our response: The coordinates or plot points or both from which the
maps are generated are included in the administrative record for this
critical habitat designation and are available at http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0042 and at the
Arizona Ecological Services Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT). Enhanced color maps and site-specific boundaries
of the critical habitat in both GIS and Google Earth format can be
viewed and downloaded from http://www.fws.gov/southwest/es/arizona.
(63) Comment: The Service did not provide the data or sources used
in the habitat model.
Our response: As stated in the proposed rule and this final rule
below are the PCEs and data sources. PCE 1: Provide connectivity to
Mexico--If an occupied area was not connected to Mexico, we selected
and added areas containing low human influence and impact (PCE 7) and
either or both vegetative cover (PCE 4) or rugged terrain (PCE 5) to
connect these areas directly to Mexico or to another occupied area
providing connectivity to Mexico. Below are the data sources and Web
site links to all the GIS data layers that we used in evaluating PCEs
in this final rule.
PCE 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--Comprehensive, consistent data regarding prey
distribution across Arizona and New Mexico is lacking. Therefore, we
relied on the best information that is readily available from the
Arizona Game and Fish Department (Hunt Arizona 2012 Edition, available
at: http://www.azgfd.gov/regs/HuntArizona2012.pdf) and the New Mexico
Department of Game and Fish (Harvest Information, available at: http://www.wildlife.state.nm.us/recreation/hunting/). Using this information,
we determined that white-tailed deer and javelina (the preferred prey
of the jaguar in the northwesternmost part of its range) have been
present in each critical habitat unit (described in Final Critical
Habitat Designation, above) for at least 50 years in Arizona, and have
been successfully hunted in each hunt unit overlapping jaguar critical
habitat for the same period of time (Game Management Units 30A, 34A,
34B, 35A, 35B, 36A, 36B, and 36C). Historical harvest information from
New Mexico is not as readily available; however, based on the most
recent harvest information, white-tailed deer and javelina are
available in Unit 5 of jaguar critical habitat (Game Management Unit
27), and are likely available in Unit 6 (both described in Final
Critical Habitat Designation, above) of jaguar critical habitat (Game
Management Unit 26; we can determine that javelina have been
successfully harvested in this Game Management Unit, but this
particular unit lumps all deer together, so we are unable to
distinguish hunt success between mule deer and white-tailed deer).
Therefore, while we were unable to map prey distribution within Arizona
and New Mexico, we believe adequate levels of prey are available, and
have been available for at least 50 years in Arizona.
PCE 3: Include surface water sources available within 20 km (12.4
mi) of each other--For water sources we substituted the USGS National
Hydrography Dataset (NHD) (available at http://nhd.usgs.gov/data.html)
for the HydroSHEDS data layer used in the jaguar habitat model
developed by the Jaguar Recovery Team (Sanderson and Fisher 2013, Table
1, p. 6).
PCE 4: Contain from greater than 1 to 50 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--For canopy cover we used the same data layer as used in the
jaguar habitat model developed by the Jaguar Recovery Team (Sanderson
and Fisher 2013, Table 1, p. 6), called MODerate-resolution Imaging
Spectroradiometer (MODIS) Tree cover (continuous field data; available
at http://glcf.umd.edu/data/vcf/). For vegetation communities we
substituted Brown and Lowe (1980) Biotic Communities of the Southwest
(available at http://azconservation.org/downloads/biotic_communities_of_the_southwest_gis_data) for the World Wildlife Fund Ecoregions
data layer used in the jaguar habitat model developed by the Jaguar
Recovery Team (Sanderson and Fisher 2013, Table 1, p. 6).
PCE 5: Are characterized by intermediately, moderately, or highly
rugged terrain--For terrain ruggedness we used the same data layer as
used in the jaguar habitat model developed by the Jaguar Recovery Team
(Sanderson and Fisher 2013, Table 1, p. 6), called Advanced Spaceborne
Thermal Emission and Reflection Radiometer Digital Elevation Model
(ASTER DEM) (available at https://lpdaac.usgs.gov/products/) and
followed the methodology described in Hatten et al. (2005, p. 1026).
PCE 6: Are below 2,000 m (6,562 feet) in elevation--For elevation
we used the Advanced Spaceborne Thermal Emission and Reflection
Radiometer Digital Elevation Model (ASTER DEM) data layer (available at
https://lpdaac.usgs.gov/products/), which is a standard digital layer
used to describe elevation.
PCE 7: Are characterized by minimal to no human population density,
no major roads, or no stable nighttime lighting over any 1 km\2\ (0.4
mi\2\) area--For human influence (to exclude cities, agricultural, and
developed rural areas) we used the same data layer as used in the
jaguar habitat model developed by the Jaguar Recovery Team (Sanderson
and Fisher 2013, Table 1, p. 6), called the HII (available at http://sedac.ciesin.columbia.edu/wildareas/).
(64) Comment: Arizona and New Mexico should be withdrawn or
excluded from critical habitat because the distribution of the jaguar
within the United States represents less than 1 percent of the total
occupied range and the jaguar rarely (if ever) contained a breeding
population even in historical times.
Our response: The Service is not withdrawing Arizona or New Mexico
from critical habitat because the Service is required under the Act to
designate critical habitat to the maximum extent prudent and
determinable. See our response to comment 1 in the Peer Reviewer
Comments above.
Further, the Service is not excluding Arizona or New Mexico from
critical habitat because 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

[[Page 12619]]

economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. Areas
that were considered for exclusion were locations where the benefits of
exclusion may outweigh the benefits of inclusion as critical habitat
(see Exclusion section above). The Secretary may exclude an area from
critical habitat if she determines that the benefits of such exclusion
outweigh the benefits of specifying such area as part of the critical
habitat, unless she determines, based on the best scientific 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. When
identifying the benefits of inclusion for an area, we consider the
additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat. In the case of the jaguar, the benefits
of critical habitat include public awareness of jaguar presence and the
importance of habitat protection, and in cases where a Federal nexus
exists, increased habitat protection for the jaguar due to the
protection from adverse modification or destruction of critical
habitat. See the Application of Section 4(b)(2) of the Act section of
this final rule.
(65) Comment: The area on the edge of Unit 3, to the north of the
Santa Rita Mountains near Houghton Road, should be excluded from
critical habitat. This area is near an existing residential development
and planned for development.
Our response: Designation of critical habitat has been done in
accordance with statutory requirements. The area on the edge of Unit 3
includes all the PCEs identified as the physical or biological features
that provide for the jaguar's life-history processes and are essential
to the conservation of the species, including being characterized by
minimal to no human population density, no major roads, or no stable
nighttime lighting over any 1-km\2\ (0.4-mi\2\) area. Development
actions funded, authorized, or carried out by a Federal agency must
enter into consultation with the Service if the Federal action may
affect critical habitat. Please see our response to comment number 64
in the Comments from States above for additional information on
exclusions under the Act. In the case of the jaguar where a Federal
nexus exists, the benefits of critical habitat include increased
habitat protection for the jaguar due to the protection from adverse
modification or destruction of critical habitat. See the Application of
Section 4(b)(2) of the Act for a full discussion of the areas we have
determined are appropriate to exclude from the final designation of
critical habitat.
(66) Comment: Federal lands should be excluded from critical
habitat designation.
Our response: The Service is not excluding Federal lands from
critical habitat designation. Please see our responses to comment
numbers 64 and 65 in the Comments from States above for additional
information on exclusions under the Act. There is additional benefit to
including the federally owned lands in the designation of critical
habitat because of the Federal agencies' obligation to consult under
section 7 of the Act on activities that may adversely modify critical
habitat. Consequently, we have not determined that the benefits of
excluding these areas outweigh the benefits of including these areas.
Please see the Application of Section 4(b)(2) of the Act section for a
full discussion of the areas we have determined are appropriate to
exclude from the final designation of critical habitat.
(67) Comment: The benefits of not designating critical habitat
outweigh the benefits of designating critical habitat because the
designation of critical habitat will result in denial of access to
lands for jaguar conservation and research, fewer observations
reported, and an increase in illegal activities undermining recovery of
threatened and endangered species.
Our response: 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.
Designated 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. Any of these or other actions on
Federal lands that may affect the jaguar or its designated critical
habitat would be required to consult with the Service to ensure those
actions are not adversely modifying its critical habitat. However,
consultation is already required because the jaguar is listed as
endangered. All projects with a Federal nexus proposed within jaguar
critical habitat in the United States will be evaluated on a case-by-
case basis with respect to section 7 of the Act. The designation of
critical habitat does not prohibit humans and legal activities. Legal
activities that have a Federal nexus (in that they occur on Federal
lands, require a Federal permit, or receive Federal funds) will be
evaluated on a case-by-case basis with respect to section 7
(consultation with the Service) of the Act to ensure they do not
destroy or adversely modify designated critical habitat.
We have been consulting with Federal agencies on their effects to
the jaguar on Federal lands, or on projects for which a Federal nexus
exists, since the species was listed in 1972. Since jaguars were
listed, we have had no projects on privately owned lands that had a
Federal nexus to trigger formal consultation under section 7 of the
Act. Therefore, the Service does not anticipate a decrease in
authorized access to lands for conservation and research or a decrease
in observations reported. Further, illegal activity is not expected to
increase with the designation of critical habitat, because designated
critical habitat does not prevent legal activities from occurring
within its boundaries, including law enforcement related to illegal
activities (border control issues).
(68) Comment: The analysis of significance of the critical habitat
designation within the draft environmental assessment is inadequate,
and the Service should prepare a full environmental impact statement
(EIS). We also received several similar comments from the members of
the public.
Our response: We analyzed the potential impacts of critical habitat
designation on the following resources and resource management types:
Land use and management; fish, wildlife, and plants (including
endangered and threatened species); fire management; water resources
(including water management projects and groundwater pumping);
livestock grazing; construction and development (including roads,
bridges, dams, infrastructure, residential); tribal trust resources;
soils; recreation and hunting; socioeconomics; environmental justice;

[[Page 12620]]

mining and minerals extraction; and National security. We found that
the designation of critical habitat for the jaguar would not have
direct impacts on the environment as designation is not expected to
impose land use restrictions or prohibit land use activities. Our
environmental assessment found that the impacts of the proposed
critical habitat designation would be minor and not rise to a
significant level. An EIS is required only if we find that the proposed
action is expected to have a significant impact on the human
environment. The completed studies, evaluations, and public outreach
conducted by the Service have not identified impacts resulting from the
proposed designation of critical habitat that are clearly significant.
Based on our analysis and comments received from the public, we
prepared a final EA and made a Finding of No Significant Impact
(FONSI), negating the need for preparation of an EIS. We have
determined our environmental assessment is consistent with the spirit
and intent of NEPA. The final environmental assessment, FONSI, and
final economic analysis provide our rationale for determining that
critical habitat designation would not have a significant effect on the
human environment. Those documents are available for public review (see
ADDRESSES section).
(69) Comment: A complete economic analysis should accompany any
proposed Federal action, which would allow stakeholders the opportunity
to review, analyze, and comment on the economic consequences of this
critical habitat designation.
Our response: The Service published our proposed rule to designate
critical habitat for the jaguar August 20, 2012. At that time our
current regulations at 50 CFR 424.19 stated: ``The Secretary shall
identify any significant activities that would either affect an area
considered for designation as critical habitat or be likely to be
affected by the designation, and shall, after proposing designation of
such an area, consider the probable economic and other impacts of the
designation upon proposed or ongoing activities.'' The Service
interprets `after proposing' to mean after publication of the proposed
critical habitat rule. The President's Feburary 28, 2012, memorandum
directed the Service to take prompt steps to revise our regulations to
provide that the economic analysis be completed and made available for
public comment at the time of publication of a proposed rule to
designate critical habitat. The Service finalized revisions to these
regulations on October 30, 2013, which was after we had published the
proposed rule to designate critical habitat for the jaguar.
Consequently, when we published the jaguar critical habitat rule, we
followed the regulations that were current at the time.
(70) Comment: The draft economic analysis does not consider
economic impacts resulting from employment-related uses of Federal
land, such as mining and cattle grazing.
Our response: The draft economic analysis addresses impacts to
mining operations in Chapter 5 and to livestock grazing in Chapter 3
(grazing on Federal lands) and Chapter 9 (grazing on State and private
lands). We assume that economic activities occurring on Federal lands
will have a Federal nexus for section 7 consultation through the
Federal land manager. For activities such as livestock grazing that
occur on State or private lands, we consider the potential for projects
to involve Federal permits or funding, such as funding from NRCS. In
these cases, we forecast section 7 consultations. We also consider the
potential for indirect effects, such as the withdrawal of NRCS
applications resulting from the stigma of critical habitat designation.
(71) Comment: The designation of critical habitat could have
substantial economic impacts on local economies and employment by
threatening Federal approval of the Rosemont Mine.
Our response: In October 2013, the Service completed a biological
opinion and conference opinion with the U.S. Forest Service for the
Rosemont Mine. The biological opinion concluded that the Rosemont Mine
would not constitute jeopardy to the jaguar. A conference opinion was
also completed to address the impacts of the Rosemont Mine to the then-
proposed critical habitat designation for jaguar, which concluded that
the mining operation is not likely to destroy or adversely modify
jaguar critical habitat.
The final economic analysis has been revised based on the
biological and conference opinion. The Rosemont Mine is located in a
unit of critical habitat that is occupied by the jaguar. Since the
jaguar is currently a listed species, conservation efforts are already
undertaken to avoid jeopardy to the species in this area and,
therefore, the economic impacts are predominantly captured in the
baseline. Through our evaluation of impacts of the critical habitat
designation, we determined that most of the conservation efforts are
not a result of the critical habitat designation itself, but rather a
result of the jaguar being a listed species, and, therefore,
incremental impacts of the critical habitat designation are largely
limited to transactional costs. As a result, the incremental impact,
economic or from other relevant factors, of the designation on the mine
is expected to be minimal.
Section 4(b)(b)(2) of the Act states that the Secretary may exclude
a specific area from critical habitat if the benefits of excluding the
area outweigh the conservation benefits of including it, providing the
exclusion does not result in the extinction of the species. In the case
of the Rosemont Mine, we have not found any disproportionate impacts,
economic or other, on the Rosemont Mine due to the critical habitat
designation because the area is occupied, a section 7 consultation was
just completed providing approval for the mine project, and
conservation measures are primarily captured in the baseline.
Therefore, the Secretary did not find it to be reasonable or
appropriate for the Service to enter into the discretionary exclusion
analysis about whether to exclude the mine from the final designation.
(72) Comment: The designation could adversely affect operations at
Fort Huachuca. Fort Huachuca is important to the local economy, it
contributes approximately $2.4 billion annually to the state economy,
and it is the primary employer in the area.
Our response: Fort Huachuca's 2013 INRMP includes benefits for
jaguars and their habitat that were not included in their previous
INRMP. Based on our review of Fort Huachuca's 2013 INRMP, and in
accordance with section 4(a)(3)(B)(i) of the Act, we have determined
that the portion of Unit 3 and Subunit 4c within this installation,
identified as meeting the definition of critical habitat, is subject to
the INRMP, and that conservation efforts identified in this INRMP will
provide a benefit to the jaguar. Therefore, lands within this
installation are exempt from critical habitat designation under section
4(a)(3)(B) of the Act. Further, as described in section 8.1 of the
draft economic analysis, the Department of Defense (DOD) has already
incorporated the species into its management planning. As a result, the
Service and DOD do not anticipate that jaguar critical habitat
designation will change the outcome of future section 7 consultations
associated with operations at Fort Huachuca. Furthermore, because
conservation management for the jaguar is typically passive in nature
(i.e., no specific changes to operations at Fort Huachuca are
anticipated to accommodate jaguar conservation), the draft economic
analysis does not forecast any restrictions on Fort actions

[[Page 12621]]

that would result in costs of conservation efforts for the jaguar, even
absent critical habitat designation.
(73) Comment: The draft economic analysis underestimates impacts to
livestock grazing. Costs that a rancher will incur for a single
consultation could exceed $20,000 to $25,000, and could include such
expenses as hiring consultants, attending consultations, reviewing
biological opinions, participating in the NEPA process, filing appeals
of other Federal agency findings if necessary, modifying ranching
operations, modifying water use, and implementing jaguar conservation
measures.
Our response: While the commenters are correct that consultation
efforts have the potential to result, in some cases, in significant
costs, the economic analysis does not anticipate that many new
consultations would occur as a result of critical habitat alone; that
is, most consultations on jaguar are anticipated to occur regardless of
critical habitat designation. As a result, the incremental costs of
considering critical habitat in a jaguar consultation are low because
consultation is already occurring to address impacts to the species.
Similarly, conservation efforts for jaguar are not anticipated to
exceed those that already would have been requested under the baseline
(for the species). As such, incremental costs associated with
undertaking these measures are not included in the economic analysis.
(74) Comment: The designation of jaguar critical habitat may result
in increased livestock predation. These impacts are not evaluated in
the draft economic analysis.
Our response: The Service is aware of one jaguar depredation event
in the United States since 1961, which occurred in the Altar Valley
area in 2007 (McCain and Childs 2008, pp. 4-5). The Service recognizes
that cattle depredation may occur. However, the jaguar is already
present in the United States and protected under the Act as a listed
species. The designation of critical habitat in the United States will
not change the possibility of cattle depredation due to jaguars. The
Service is not proposing to reintroduce or supplement jaguar
populations in the United States. Therefore, we do not anticipate that
designating critical habitat for the jaguar will result in economic
impacts through livestock depredation. We are aware, however, of the
concern that cattle depredations may occur in the future, and we are
working with the Jaguar Recovery Team to develop strategies to avoid
these types of conflicts.
(75) Comment: The draft economic analysis underestimates impacts
because it does not consider water use and water allocation issues. The
designation will create water use conflicts, resulting in negative
impacts to livestock producers. The designation could result in
substantial economic impacts by infringing on existing water rights to
provide water for jaguar conservation.
Our response: As described in the Service's incremental effects
memorandum, provided as Appendix C to the draft economic analysis,
possible project modifications to avoid jeopardy to the species and
adverse modification or destruction of critical habitat include: using
technology-based surveillance rather than fencing where possible;
creating permeable highways by including wildlife crossings appropriate
to jaguars in the project design; re-vegetating and restoring areas of
large-scale habitat removal; modifying or eliminating the presence of
stable nighttime lighting; reducing the footprint of large facilities
to the maximum extent practicable; minimizing the amount or extent of
human presence, vehicles, or traffic in a given area; providing
conservation measures to restore, enhance, and protect habitat within
critical habitat units; offsetting permanent habitat loss,
modification, or fragmentation resulting from agency actions with
habitat that is permanently protected, including funding to ensure the
habitat is managed permanently for the protection of the species; and
providing resources to assess the effects of the action on jaguar
habitat connectivity and function. These conservation measures are
addressed as relevant for projects forecast in the draft economic
analysis. Based on these possible project modifications, the draft
economic analysis does not expect that jaguar conservation will require
changes to water allocation.

Comments From Federal Agencies

(76) Comment: There is no habitat in the United States that is
critical to the recovery of the jaguar or its survival as a species.
Our response: See our response to comment number 1 in the Peer
Reviewer Comments above.
(77) Comment: Jaguar critical habitat in the United States is not
essential because jaguars have persisted in the Northern Recovery Unit
for the last 50 years with no evidence of breeding in the United States
during that time.
Our response: See our response to comment number 4 in the Peer
Reviewer Comments above.
(78) Comment: Areas in the United States will function primarily to
support dispersing or transient jaguars, although breeding could have
occurred in the past.
Our response: See our response to comment number 11 in the Peer
Reviewer Comments above.
(79) Comment: Designation of critical habitat is not due to new
data but due to litigation.
Our response: See our response to comment number 2 in the Peer
Reviewer Comments above.
(80) Comment: Fort Huachuca should be exempted from critical
habitat designation based on the Fort's Integrated Natural Resources
Management Plan (INRMP) that was prepared under section 101 of the
Sikes Act (16 U.S.C. 670a) and which currently provides a benefit to
the jaguar.
Our response: The Service has exempted Fort Huachuca from critical
habitat designation based on their INRMP. See the Exemptions section of
this final rule for further information.
(81) Comment: The Chiricahua and Dos Cabezas Mountains are
essential and therefore should be included in the designation.
Our response: The critical habitat designation includes those areas
in the United States that meet the definition of critical habitat as
defined in the Act. Because habitat in the United States is at the edge
of the species' northern range, and is marginal compared to known
habitat throughout the range, we have determined that all of the
primary constituent elements discussed must be present in each specific
area to constitute critical 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, above). The Chiricahua and Dos Cabezas
Mountains either were not occupied at the time of listing or do not
contain the PBF and PCEs the Service has determined are needed for it
to function for jaguars.
(82) Comment: Valley bottoms should be included in the critical
habitat designation because it is clear that jaguars traverse the
valley bottoms to reach more suitable habitat. Further, these areas
potentially contain necessary water sources.
Our response: We acknowledge that jaguars will use valley bottoms
(for example, McCain and Childs 2008, p. 7), and other areas of habitat
connectivity to move between areas of higher quality habitat found in
isolated mountain

[[Page 12622]]

ranges in the United States and that water sources within valleys may
be used by jaguars. However, as described in the proposed rule and this
final rule, there is only one occurrence record of a jaguar in a valley
between mountain ranges. Therefore, the best available scientific and
commercial information does not allow us to determine which particular
area within the valleys may be essential, and all of the valley habitat
is not essential to the conservation of the species. See Connectivity
between expansive open spaces within the United States, above, in this
final rule. Also, see our response to comment number 8 in the Peer
Reviewer Comments above.
(83) Comment: The listing time period used by the Service to
determine occupancy is not consistent with the Act.
Our response: See our response to comment number 42 in Comments
from the States above.
(84) Comment: There will never be a breeding population in the
United States, thus there is no need for critical habitat in the United
States.
Our response: See our response to comment number 11 in Peer
Reviewer Comments above.
(85) Comment: Jaguar prey species are in decline and will not
support jaguars.
Our response: See our response to comment number 20 in Peer
Reviewer Comments above.
(86) Comment: The Service neglects to account for the fact that the
DHS can waive all laws to expedite construction of a border fence and
to remove any obstructions to the detection of illegal aliens, 1,126 km
(700 mi) of barrier fence is required to be built along the U.S.-Mexico
border, lighting has been added along the border that would impact
jaguar critical habitat, and a constant flow of human traffic occurs
through jaguar critical habitat. This is not consistent with the HII
PCE. Additionally, the Service only considered stationary human
population and did not account for transient humans crossing the
border.
Our response: We understand that laws related to the expeditious
construction of border infrastructure in areas of high illegal entry
may be waived by the Secretary of DHS, and have discussed this in the
Special Management Considerations or Protections section of this final
rule. As also noted in this final rule, there are no known plans to
construct additional security fences in the designated critical
habitat, although should future national security issues require
additional measures, the Secretary of DHS may invoke the waiver, and
special management considerations would continue to occur on a
voluntary basis on activities covered by a waiver. There are other
forms of border infrastructure, however, that do not fall under this
waiver (construction of towers, for example); therefore, special
management considerations apply to these projects, and we consult with
DHS to minimize the impacts to listed species and their critical
habitat.
We also understand that human activity (both legal and illegal)
occurs along the U.S.-Mexico border, including within critical habitat.
At times this activity can be intense, involving many people, vehicles,
lighting, and equipment. However, this activity is also transitory, in
that activity hot spots will develop in one area, then move to another
area for a variety of reasons (for example, increased law enforcement
can shift illegal border activity to another area). Therefore, because
of the variable nature and unknown location of this activity, we are
not able to predict its effect on jaguar critical habitat.
Additionally, because the impacts of these activities shift around the
landscape and are not permanent in nature, they do not necessarily
entirely preclude jaguars from using an area, once the activity
diminishes and moves to another location. Therefore, we continue to use
HII as the best available science reflecting human influence on the
landscape.
(87) Comment: With Arizona alone growing by 1.5 million people from
the mid-1990s to mid-2000s, the Service should account for future
population growth in the southwest.
Our response: We acknowledge that the human population has grown
and continues to grow throughout the southwestern United States. Should
this growth occur within critical habitat to the extent that the HII
PCE may be affected and a Federal nexus exists, the Service would
consult on proposed actions related to human population growth (e.g.,
roads, development, transmission lines) with the action agency to
minimize the effects of increasing the HII within critical habitat. We
understand human population growth may occur without consultation in
areas where a Federal nexus does not exist; in these areas, special
management considerations to minimize the effects of increasing the HII
would occur on a voluntary basis.
(88) Comment: The Service should consider that as conservation
uncertainties arise in the Mexican part of the range and climate change
alters natural resources, protecting critical habitat in the United
States and facilitating connectivity between current range and
historical range with adequate, and sometimes superior, resources is
paramount for longitudinal conservation action. The borderlands area is
often referred to as marginal habitat because the core breeding
population is much farther south, but this area is perhaps growing more
critical for the species and represents a feasible opportunity for
conservation and recovery. Climate change is an important factor in the
recovery of jaguars in the borderlands and the Service appropriately
included it in the discussion within the proposed rule. Additionally,
climate change effects on jaguars are uncertain, but the Service should
consider that some potential impacts, such as increased periods of
drought, underscore the importance of building resource capacity and
connectivity.
Our response: The Service recognizes that climate change may be a
factor in the conservation of the jaguar. The Service further
recognizes the importance of maintaining connectivity between the
United States and Mexico. In our proposed rule and this final rule 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. The ability for jaguars in the proposed Northwestern
Recovery Unit to utilize physical and biological habitat features in
the borderlands region is ecologically important to the recovery of the
species; therefore, maintaining connectivity to Mexico is essential to
the conservation of the jaguar.
(89) Comment: The maps provided by the Service are insufficient in
detail.
Our response: The coordinates or plot points or both from which the
maps are generated are included in the administrative record for this
critical habitat designation and are available at http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0042 and at the
Arizona Ecological Services Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT). Enhanced color maps and site-specific boundaries
of the critical habitat in both GIS and Google Earth format can be
viewed and downloaded from http://www.fws.gov/southwest/es/arizona.http. See our response to comment 43 in Comments from States
above for the Web site links to all the GIS data layers that we used in
evaluating PCEs in this final rule.
(90) Comment: Has government-to-government consultation with the
Service occurred?
Our response: Yes. Please see the Government-to-Government

[[Page 12623]]

Relationship with Tribes section of this final rule for a description
of consultation between the Service and the Tohono O'odham Nation.
(91) Comment: The BIA requested that the Tohono O'odham Nation be
excluded from critical habitat designation based on section 4(b)(2) of
the Act. The BIA references the jaguar management plan that is under
development by the Tohono O'odham Nation.
Our response: We have determined, pursuant to section 4(b)(2) of
the Act, that we will exclude approximately 20,764 ha (51,308 ac) of
Tohono O'odham Nation land in Subunit 1a and approximately 10,829 ha
(26,759 ac) of Tohono O'odham Nation land in Subunit 1b, from the final
designation of critical habitat. See the Exclusions Based on Other
Relevant Impacts section above for more detailed information.
(92) Comment: Several points in the proposed rule indicate that
adverse modification analysis would be required only for occupied
habitat. Why would the analysis not be required for unoccupied critical
habitat?
Our response: Adverse modification analysis during section 7
consultation would be conducted for projects with a Federal nexus that
may adversely modify critical habitat in both occupied and unoccupied
critical habitat.
(93) Comment: The draft economic analysis should address impacts to
national security that could result if the construction of border
fences or related infrastructure is affected by jaguar conservation.
Land located near the border may be devalued due to national security
impacts. Illegal immigration and drug trafficking may increase in the
vicinity of the proposed designation.
Our response: Chapter 4 of the draft economic analysis discusses
impacts to border protection activities. As described in section 4.1 of
the draft economic analysis, CBP does not anticipate that activities
planned within the proposed designation will cause permanent changes to
the landscape or sever connectivity to Mexico and are, therefore,
unlikely to require any changes to jaguar conservation measures than
those already planned under the listing of the species. CBP already
implements baseline conservation measures according to best management
practices for the jaguar in all critical habitat units. As a result, we
do not forecast any impacts to national security as a result of
critical habitat designation for jaguar.

Comments From Tribes

(94) Comment: The Tohono O'odham Nation should be excluded from
critical habitat designation based on section 4(b)(2) of the Act.
Our response: We have determined, pursuant to section 4(b)(2) of
the Act, that we will exclude approximately 20,764 ha (51,308 ac) of
Tohono O'odham Nation land in Subunit 1a and approximately 10,829 ha
(26,759 ac) of Tohono O'odham Nation land in Subunit 1b, from the final
designation of critical habitat. See the Exclusions Based on Other
Relevant Impacts section above for more detailed information.
(95) Comment: Fort Huachuca should be exempted from critical
habitat designation based on the Fort's Integrated Natural Resources
Management Plan (INRMP) that was prepared under section 101 of the
Sikes Act (16 U.S.C. 670a) and which currently provides a benefit to
the jaguar.
Our response: The Service has exempted Fort Huachuca from critical
habitat designation based on their INRMP. See the Exemptions section of
this final rule for further information.

Public Comments

General
(96) Comment: Data indicate Arizona and New Mexico lack the habitat
necessary for jaguars. There is no Sinaloan thornscrub in the United
States; therefore, the United States does not have the vegetation
necessary for jaguars to feed, breed, reproduce, and find shelter,
which is why there is no jaguar population in existence in the United
States.
Our response: The Service acknowledges that Sinaloan thornscrub
does not occur in the United States. However, we have determined that
Madrean evergreen woodland and semidesert grassland provide the biotic
community component of the physical or biological feature utilized by
jaguars north of the U.S.-Mexico border. Therefore, these two biotic
communities are included as a PCE within the designation. Further, the
Act does not require a breeding or reproducing population of jaguars be
present for the purposes of designating critical habitat.
(97) Comment: Habitat in the United States (including southeastern
Arizona and southwestern New Mexico) is at the northernmost extreme of
the jaguar's range, and is peripheral, marginal, and not essential to
the conservation of the species, as demonstrated by Rabinowitz (1997),
who has consistently maintained there is no area in the southwestern
United States that is critical to the survival of the jaguar and that
the area is marginal for the jaguar in terms of water, cover, and prey
density. The United States is not shown as a jaguar corridor on the map
published by Rabinowitz and Zeller (2010). Biological studies and
professional opinions abound, and are cited by organizations opposing
this designation, that credibly show the jaguar prefers a wet tropical
climate to breed and exist.
Our response: The Service agrees that habitat in the United States
is on the northern periphery of the jaguar's range; however, the
Service has identified critical habitat for the jaguar in accordance
with the Act and implementing regulations. See our response to comment
number 1 in the Peer Reviewer Comments above.
(98) Comment: Any area that contains the PCEs does not
automatically qualify as critical habitat. It can hardly be said that
these features are essential to the conservation of the species merely
because they can sustain temporary presence of the species.
Our response: The Act does not state that critical habitat applies
only to resident or breeding populations, or that for an area to be
occupied critical habitat it must contain a female or documented
breeding. Rather, section 3(5)(A)(i) of the Act defines occupancy as
the specific areas within the geographical area occupied by the
species, at the time it is listed. Further, in the decision of Arizona
Cattle Grower's Assoc. v. Salazar, 2009 U.S. App. Lexis 29107 (June 4,
2010), the Ninth Circuit affirmed that the Service has the authority to
designate as occupied all areas used by a listed species with
sufficient regularity that members of the species are likely to be
present during any reasonable span of time. Therefore, occupancy of an
area can be indicated by the presence of an individual member of the
species, and we have determined that critical habitat may have been
occupied at the time of listing based on this definition in conjunction
with observations of jaguars in those areas (as described in Table 1 of
this final rule).
(99) Comment: The proposed critical habitat in the United States
will have little to no effect on the jaguar's survival and recovery.
The listed species is the entire jaguar taxon; critical habitat,
therefore, must be essential to conserving that species as a whole.
Other than a possible contribution to the genetic diversity of the
species, there is no indication of any kind why the designation of
critical habitat would somehow be essential to the conservation of the
species as a whole.

[[Page 12624]]

Our response: Critical habitat in the United States contributes to
recovery across the jaguar's entire range by providing the physical or
biological feature for jaguar critical habitat and the associated PCEs.
The Service recognizes that the designated critical habitat in the
United States is only a small portion of the jaguar's range and we
anticipate 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 range
in the United States is located within a secondary area (as identified
in the Recovery Outline) 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.
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 (Jaguar Recovery Team 2012, pp. 40, 42), 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.
(100) Comment: There is no rational or prudent basis for
designating critical habitat in the United States. There is no area in
the United States that is essential to the conservation of jaguars.
Our response: The Service has identified critical habitat for the
jaguar in accordance with the Act and its implementing regulations. The
Service has determined that designation of critical habitat for the
jaguar is prudent and determinable based on the best available
scientific data available. Section 4(a)(3)(A) of the Act, states that
critical habitat shall be designated for endangered and threatened
species to the maximum extent prudent and determinable. Therefore, we
are required to designate critical habitat for the jaguar to fulfill
our legal and statutory obligations. See our response to comment number
1 in the Peer Reviewer Comments above.
(101) Comment: The Service states that a goal of critical habitat
is to support a population of 50 to 100 jaguars in the United States by
protecting and increasing connectivity between the United States and
Mexico.
Our response: See our response to comment number 4 in the Peer
Review Comment section above.
(102) Comment: Corridors to unsuitable or marginal habitat can de-
stabilize jaguar populations (Desbiez et al. 2012), particularly if the
source population is itself unstable. Analyses presented by Carillo et
al. (2007) indicate that the Sonora population appears to be
decreasing, and some jaguar experts consider the southwestern United
States to consist of marginal habitat for jaguars (see Johnson et al.
2011). Thus, linking jaguar population in Mexico to the United States
may establish a detrimental source-sink relationship. The results of
our PVA analysis indicate that the Service's goal of establishing a
breeding population of jaguars in the United States may have negative
consequences to the stability and persistence of jaguar populations in
the Northwestern Management Unit.
Our response: We disagree that designating critical habitat will
destabilize the nearest breeding population in Mexico. The purpose of
designating critical habitat in the United States is not to create a
self-sustaining, breeding population north of the U.S.-Mexico border,
but to provide small patches of habitat (perhaps in some cases with a
few resident jaguars) to allow for the cyclical expansion and
contraction of the nearest core area in Mexico. Therefore, critical
habitat in the United States contributes to recovery by providing
protection of these areas within the proposed Northwestern Recovery
Unit. Further, the jaguar has been listed as an endangered species
since 1972, and already receives protection under the Act. The
designation of critical habitat does not increase the number of jaguars
present in the United States. 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. See our
response to comment number 52 in Comments from States above.
(103) Comment: The Service should consider the importance of
connecting the Jalisco and Sonora populations to support a stable
metapopulation in the Northwestern Management Unit. Increasing
connectivity between Jalisco and Sonora improves population growth
rate, decreases the probability of extinction and increases genetic
heterozygosity in Sonora, creates a stable Sonoran population, and
supports a stable metapopulation. Creating a breeding population in the
United States could have detrimental effects on population growth and
persistence in the region, and conservation measures in Mexico rather
than the United States are needed to benefit jaguars in the
Northwestern Management Unit.
Our response: We agree that jaguar conservation in Mexico and
throughout its range are necessary to recover the species, and we are
collaborating with partners to conserve jaguars throughout their range,
including improving dispersal opportunities between the Jalisco and
Sonora populations. We disagree that designating critical habitat will
detrimentally affect jaguar population growth and persistence in the
region (see our response to comment number 15 in Peer Reviewer Comments
and 52 in Comments from States above). The purpose of the designation
of critical habitat is not to establish a breeding population of
jaguars in the United States. The purpose of critical habitat in the
United States is to provide small patches of habitat (perhaps in some
cases with a few resident jaguars) to allow for the cyclical expansion
and contraction of the nearest core area in Mexico. Critical habitat is
not being designated to create a self-sustaining, breeding population
north of the U.S.-Mexico border, but to allow individuals from the
nearest breeding area in Mexico areas within which they may persist
during a portion of their life cycle.
(104) Comment: The Service should work with Dr. Rabinowitz and
other jaguar experts in Mexico, Central America, and South America to
protect jaguar habitat, including corridors. Since the nearest breeding
population is 209 km (130 mi) south in Mexico and there are breeding
populations throughout Central and South America,

[[Page 12625]]

science and logic dictate spending resources and efforts where jaguars
breed.
Our response: The Service is collaborating with partners (including
members of Dr. Rabinowitz's organization, Panthera) to conserve jaguars
and their habitat throughout the range of the jaguar, particularly
within the proposed Northwestern Recovery Unit. We are currently
working with the Jaguar Recovery Team to complete a draft recovery plan
for the jaguar, which we expect will be available in 2014. The recovery
plan will include guidance, criteria, and actions pertaining to
recovering the species throughout its entire range (although focusing
on the Northwestern Recovery Unit), including information about
habitat, corridor, and breeding area protection.
(105) Comment: The designation of critical habitat appears
political instead of scientific, which violates the Act at every level.
Our response: Designation of critical habitat has been done in
accordance with statutory requirements. See our response to comment
number 1 in the Peer Reviewer Comments above.
(106) Comment: Set-aside protection mechanisms, like critical
habitat, may not be necessary to meet the jaguar's habitat needs.
Our response: See our response to comment number 1 in the Peer
Reviewer Comments above.
(107) Comment: Habitat fitting the description of the physical or
biological feature and associated PCEs of jaguar critical habitat is
widespread in Arizona, and any actions that would impact jaguars are
already required to be evaluated by provisions under the Endangered
Species Act and National Environmental Policy Act (NEPA).
Our response: Since the jaguar is a federally listed species under
the Act, actions with a Federal nexus that may impact jaguars are
evaluated under the Act and potentially NEPA. However, critical habitat
does afford protection to the jaguar through section 7 consultation
under 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. 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. Therefore, actions that are funded,
permitted, or carried out by a Federal agency within jaguar critical
habitat will continue to be evaluated to determine their impacts on
critical habitat.
(108) Comment: The lack of breeding populations or residency in the
United States indicates there is no critical habitat. There are no
areas in the United States that could be considered ``occupied.'' The
males detected in the United States have likely originated from the
Sonora population, and their genetic resources are thus a consequence
of the population genetics and environmental conditions acting upon the
Sonora population. While the Sonora population may be important for the
conservation of the species, a small population in the United States,
if it was to exist, is not an important peripheral population in the
context of the conservation of the species. Based on the movement
behavior of female jaguars, it is unlikely that female jaguars would
cross road barriers (some including large highways with presumably high
traffic volumes) or other areas of human disturbance in the over 130
miles between the Sonora population and the areas of critical habitat
in the United States. Suitable habitat for jaguars between the Sonora
population and the United States is fragmented and of marginal quality.
A general increase in human impacts across the landscape through time
is correlated with a lack of female records in the United States,
lending credence to the possibility that conditions in northern Mexico
may act as a barrier to female dispersal to the United States.
Our response: As described in the proposed rule and this final
rule, barriers prohibiting the dispersal of females to the United
States are unknown. Based on information about large carnivores, male
felids can move long distances in the process of dispersal (Logan et
al. 1986 and L[oacute]pez Gonz[aacute]lez 1999, as described in
Boydston and L[oacute]pez Gonz[aacute]lez 2005, p. 51), but when female
dispersal does occur, distances are much shorter (Logan and Sweanor
2011, as described in Boydston and L[oacute]pez Gonz[aacute]lez 2005,
p. 51). Therefore, it may be possible that barriers exist to female
dispersal into the United States; however, as described in the Recovery
Outline for the Jaguar (Jaguar Recovery Team 2012, pp. 24, 44), further
research on gender- and age-specific estimates of dispersal rates and
travel distances is needed within the Northwestern Recovery Unit. The
Act does not state that critical habitat applies only to resident or
breeding populations, or that for an area to be occupied critical
habitat it must contain a female or documented breeding. Further,
establishing a breeding population of jaguars is not the purpose of
critical habitat designation. See our response to comment number 11 in
Peer Reviewers Comments above.
(109) Comment: Some authors argue that suitable habitat for females
does exist in southern Arizona and New Mexico, but note that habitat
preferences differ considerably between male and female jaguars
(Boydston and L[oacute]pez-Gonz[aacute]les 2005). The lack of female
detections in the United States may be indicative of conditions over
the past 60 years that have resulted in an altered landscape whereby
habitats preferred by females (e.g., forested areas, especially broad-
leaf forests (Boydston and L[oacute]pez-Gonz[aacute]les 2005)) no
longer occur in the United States in sufficient quantities to support
female occupancy and breeding. Moreover, because females have not been
detected recently in the United States, habitat conditions at the
locations of female jaguar detections, used in building habitat models,
have likely changed, a fact that is not accounted for by the approach
taken by the Service's modeling effort to identify and map critical
habitat. Similarly, the development of PCEs for critical habitat is
based on records that are likely to be mostly male jaguars.
Consequently, the areas identified as critical habitat may be suitable
for male jaguars, but fail either to benefit female jaguars or allow
for the establishment of breeding territories.
Our response: We acknowledge that the majority of detections used
to develop the habitat model for the jaguar in the Northwestern
Recovery Unit may have been males. Standard camera-trapping techniques
appear to have a bias towards capturing male jaguars as opposed to
females (Harmsen et al. 2009, entire). Harmsen et al. (2009, pp. 615-
616) captured 23 individual males during 100 days of camera trapping,
but only captured 6 individual females during this same time period.
This is likely because male jaguars roam farther and tend to use large
pathways more than females, making it more likely they will be picked
up using camera trap techniques (which often are located along open
pathways to facilitate capturing recognizable photos). However, even
when used off trail (such as along small streams, game trails, and
landscape features), Harmsen (2006) found that camera trapping did not
reveal any habitat characteristics associated with higher capture rates
of females (as cited in Harmsen et al. 2009, pp. 613, 618).
Even so, the Act does not state that critical habitat must apply to
both males and females of a species. Further, establishing a breeding
population of

[[Page 12626]]

jaguars is not the purpose of critical habitat designation. See our
response to comment number 11 in Peer Reviewers Comments above.
(110) Comment: The United States is a peripheral area; therefore,
the Service should not designate critical habitat in the United States.
Our response: Please see our response to comment number 1 in the
Peer Reviewer Comments above.
(111) Comment: Habitat in the United States is marginal and not
essential to the conservation of the species, as demonstrated by
Rabinowitz (2010).
Our response: The Service agrees that habitat in the United States
is on the northern periphery of the jaguar's range; however, the
Service has identified critical habitat for the jaguar in accordance
with the Act and implementing regulations. See our response to comment
number 1 in the Peer Reviewer Comments above.
(112) Comment: The Service should exclude the Rosemont Mine.
Excluding the mine will not cause the species' extinction. Rosemont
Mine has incurred costs well in excess of $100 million in developing
the project and should be excluded based on economic considerations.
Our response: We have not excluded the Rosemont Mine from critical
habitat. See our response to comment number 71 in the Comments from
States above.
Additionally, the Service recognizes the perceptional effects of
the designation of critical habitat in general, and specifically, for
the designation of critical habitat for the jaguar. The costs of
developing the Rosemont Mine and the potential economic benefit of the
mine are not factors in considering whether to exclude the mine area
from critical habitat. The Secretary has the discretion to exclude
specific areas from critical habitat based on the economic impact or
other relevant factors. The basis for excluding a particular area due
to a probable economic impact is to relieve the probable impact that
may be due solely to the designation of critical habitat. In this
particular instance for jaguar critical habitat, we find no such
probable economic impact due solely to the designation of critical
habitat. The Rosemont Mine area is occupied by the jaguar and,
consequently, any conservation measures that have been implemented to
date, or anticipated, for the jaguar are a result of the species'
listing, not the designated critical habitat. Furthermore, a recently
completed biological and conference opinion found the construction and
operation of the Rosemont Mine would not jeopardize the jaguar nor
adversely modify designated critical habitat. This last point, no
adverse modification of critical habitat, is a major determining factor
in whether the Secretary would consider the exclusion of the mine area
from critical habitat. Since the Service determined the proposed mining
operation would not destroy or adversely modify critical habitat, no
conservation measures or reasonable or prudent alternatives were
suggested. Therefore, probable economic impacts forecast as the result
of the designation of critical habitat are predominantly limited to
transactional costs. Since the basis for an economic-based exclusion is
to forego probable economic impacts, and there are limited forecast
economic impacts from critical habitat, the Secretary did not choose to
enter into the discretionary exclusion analysis under section 4(b)(2)
of the Act. As stated previously, the costs of developing the mine and
any conservation measures implemented or recommended by the Service
specific to jaguar are primarily the result of the listing of the
species, not critical habitat.
(113) Comment: Habitat Conservation Plans (HCPs) should not be
excluded from critical habitat, specifically the Pima County Draft
Multi-Species HCP and Malpai Borderlands HCP should not be excluded.
Our response: The Pima County draft Multi-Species HCP and the
Malpai Borderlands HCP lack management plans that address jaguar
habitat. Consequently, we have not determined that the benefits of
excluding these areas outweigh the benefits of including these areas.
(114) Comment: The Service should include all of the ``Sky
Islands'' within the designation including the Chiricahua, Dos Cabezas,
Dragoon, Mule, Rincon, Santa Catalina, Galiuro,Winchester, Whitlock,
Pinale[ntilde]o, Santa Teresa, Animas, Pyramid, Alama Hueco, Big
Hatchet, Little Hatchet, Florida, West and East Potrillo, Cedar, and
Big Burro Mountains, and portions of the Peloncillo Mountains north of
the current boundaries of the Northwestern Recovery Unit. These areas
should be included because they either have documented jaguar presence
or they contain the PCEs as defined by the Service. The Service should
also include areas north of the current proposed critical habitat in
the Mogollon Rim area (along with adjoining spurs and canyons,
including the Grand Canyon) in Arizona and to the north and east into
the contiguous lands of the Gila National Forest along with the Plains
of San Augustin, the Zuni Plateau, the El Malpais National Monument and
National Conservation Area, and the San Mateo, Magdalena, Chupadera,
Datil, Sawtooth, Luera, and Summit Mountains in New Mexico. These areas
represent a potentially vital refugium for the northern jaguar
population, given the expected trajectory of increasing land use and
climate change across the southwestern United States and northern
Mexico.
Our response: The additional Sky Islands and areas north of the
designated critical habitat area may be usable by jaguars and may in
fact contribute to the recovery of the species, but they are not
considered occupied at the time of listing, and are not considered
essential to the conservation of the species as unoccupied habitat.
Consequently, these areas do not meet the definition of critical
habitat as we have interpreted it because they were not occupied at the
time of listing nor are they considered essential to recovery. See our
response to comment number 3 in Peer Reviewer Comments above.
(115) Comment: The Service should designate additional areas of
critical habitat because the agency cannot be sure of how much habitat
is currently occupied by jaguars in the United States, and lack of
detection does not indicate the species is absent. With few exceptions,
the relatively large number of confirmed jaguar sightings on which the
proposed rule was based were not the result of any official effort to
conduct a comprehensive survey of the northern jaguar population in the
United States, but were instead essentially collected accidentally.
Considering the large and growing number of purely anecdotal sightings
of this extremely and notoriously elusive species, it seems extremely
reasonable to assume that, should anyone actually try to find jaguars
in this region, far more individual jaguars would be discovered.
Our response: The Service agrees that the lack of detection does
not indicate the species is absent, and we acknowledge this concept in
our proposed rule and this final rule. The Service recognizes that 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 situation 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). See Occupied Area at the
Time of Listing, above, in this final rule.
Additionally, jaguars are currently being surveyed for and
monitored in

[[Page 12627]]

mountainous areas in the United States north of the U.S.-Mexico border
and south of Interstate 10, from the Baboquivari Mountains in Arizona
to the Peloncillo Mountains in New Mexico. Information gathered during
this survey and monitoring project (up through September 11, 2013) has
been incorporated into this final rule (see Table 1).
(116) Comment: The Service should follow the jaguar habitat
modeling efforts of Hatten et al. (2005) and Robinson (2006) as a basis
for including additional areas in these two States. Hatten et al.
(2005) identified 21-30 percent of Arizona (approximately 62,000-88,600
km\2\ (23,938-34,209 mi\2\)) as potential jaguar habitat, and Robinson
(2006) identified approximately half of New Mexico (approximately
156,800 km\2\ (60,541 mi\2\)) as potential jaguar habitat.
Our response: As discussed above, during the Jaguar Recovery Team's
analysis and modeling effort, the team considered the modeling efforts
of Hatten et al. (2005, entire) and Robinson (2006, entire), and
further refined the Hatten et al. (2005, entire) model such that a
similar model could be applied across the entire Northwestern Recovery
Unit. The team provided this analysis and habitat model in their 2013
report entitled Jaguar Habitat Modeling and Database Update (Sanderson
and Fisher 2013, entire). Therefore, we based critical habitat
boundaries on the physical and biological feature and PCEs from the
updated habitat modeling report, in which the habitat features
preferred by the jaguar in the proposed Northwestern Recovery Unit were
described based on the best available science and expert opinion of the
Jaguar Recovery Team.
(117) Comment: Congress and the Service's regulations or intentions
were to guide designation of critical habitat to lands that are
actually occupied by the listed species. Critical habitat should be
based on current occupation, not historical, and no areas are currently
occupied or were occupied at the time of listing.
Our response: The Service's designation of occupied critical
habitat is in compliance with the Act. Under the second part of the
Act's definition of critical habitat, we can designate critical habitat
in 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. In regards to areas occupied at
the time of listing, see our response to comment number 9 in Peer
Reviewers Comments above and comment number 42 in Comments from States.
(118) Comment: The Santa Rita Mountains and Subunit 4b are not
occupied.
Our response: The Santa Rita Mountains are within Unit 3. We
determined Unit 3 may have been occupied at the time of listing and is
currently occupied based on a record of a male shot in the Patagonia
Mountains (also within Unit 3) in 1965 and multiple sightings of a male
jaguar from October 2012 through September 11, 2013, in the Santa Rita
Mountains (see Table 1 in the final rule). We did not designate Subunit
4b based on occupancy; rather, this unit provides connectivity from
Subunit 4a to Mexico (by connecting it to Unit 3, which provides
connectivity to Mexico). Connectivity to Mexico is an essential feature
of jaguar habitat in the United States.
(119) Comment: The Patagonia Unit (Unit 3) is considered occupied
based on only one observation of a jaguar; therefore, it should not be
considered occupied.
Our response: At the time we published the proposed rule (77 FR
50214; August 20, 2012), we were aware of only one undisputed Class I
jaguar record from Unit 3, which was a male shot in the Patagonia
Mountains in 1965 (see Table 1 of this final rule). Since then, a male
jaguar has been documented numerous times in the Santa Rita Mountains
(see Table 1 of this final rule), which are also within Unit 3.
Therefore, we consider this unit occupied.
(120) Comment: The use of female scat as a scent lure renders all
scientific documentation of jaguars suspect.
Our response: We understand that some of the jaguar records used in
our proposed rule may be disputed due to the possibility that female
scat was used as a scent lure in some areas. Therefore, we removed all
sightings that may have been influenced by female scat, which we
determined to be from October 3, 2008 (the date of Emil McCain's
request for jaguar scat from the Phoenix Zoo) through March 2, 2009
(the date Macho B was captured and flown to the Phoenix Zoo). See Table
1 of this final rule for all of the undisputed Class I jaguar records
used to determine occupancy.
(121) Comment: The correct date of listing should be 1997 instead
of 1972.
Our response: As discussed in the final rule, our intention was to
list the species throughout its entire range at the time it was added
to the Endangered Species Conservation Act in 1972; therefore, we
determine that 1972 is the date the species was listed.
(122) Comment: Occupancy should be determined based on current
records, including up to the past 15 years.
Our response: Determining occupancy by a species such as the jaguar
can be difficult, given that they were added to the list many years
ago, and, by nature, are cryptic and difficult to detect. Therefore, we
determine that the appropriate timeframe within which to consider areas
occupied by the jaguar at the time of its listing is from 1962 (10
years prior to listing, which is the average lifespan of a jaguar) to
September 11, 2013. See our response to comment number 42 in the
Comments from States above.
(123) Comment: All records collected by and cited in McCain and
Childs (2008) should be removed, as the use of female scat as a scent
lure at some point during their study indicates that all of their data
were invalid.
Our response: We disagree. We understand that some of the jaguar
records used in our proposed rule may be disputed due to the
possibility that female scat was used as a scent lure in some areas.
Therefore, we removed all sightings that may have been influenced by
female scat, which we determined to be from October 3, 2008 (the date
of Emil McCain's request for jaguar scat from the Phoenix Zoo), through
March 2, 2009 (the date Macho B was captured and flown to the Phoenix
Zoo). Because we only have information of female scat as a scent lure
potentially being used from October 2008 through March 2009, it is
speculative to assume that sightings outside of this timeframe were
influenced by female scat as a scent lure because the best scientific
and commercial data does not indicate this to be the case. See Table 1
of this final rule for all of the undisputed Class I jaguar records
used to determine occupancy.
(124) Comment: Remove ``verified tracks'' from consideration, as
they can be confused with mountain lion tracks.
Our response: We do not consider it necessary to remove verified
tracks from consideration because the tracks that are included in our
determination of occupied critical habitat were verified by mountain
lion hunters who have sufficient experience in distinguishing mountain
lion tracks from jaguar tracks.
(125) Comment: Data used by the Service to designate critical
habitat are insufficient, inaccurate, or unreliable because the habitat
models developed by Sanderson and Fisher (2011, pp. 1-11; 2013, entire)
used other than Class I jaguar records and disputed Class I records
(including jaguar locations that

[[Page 12628]]

may have been from ``canned'' hunts). Therefore, it is not possible to
determine or model the PCEs essential for jaguars.
Our response: See our response to comment number 43 in the Comments
from States above.
(126) Comment: The 130 jaguar locations used in the Service's
August 20, 2012, proposed rule (77 FR 50214) are of questionable
legitimacy.
Our response: See our response to comment number 43 in the Comments
from States above for an explanation of the datasets used in our August
20, 2012, proposed rule (77 FR 50214), July 1, 2013, revised proposed
rule (78 FR 39237), and this final rule.
(127) Comment: None of the critical habitat units contain all the
PCEs essential to the conservation of the jaguar, or they do not have
the PCEs in the appropriate quantities to support jaguars.
Our response: All of the critical habitat units contain all of the
PCEs in the appropriate quantities to support jaguars. The PCEs are
based on the latest jaguar habitat model produced by the Jaguar
Recovery Team (Sanderson and Fisher 2013, entire), which is the best
commercial and scientific data available. Further, all PCEs are found
in all units of the final critical habitat designation and jaguars have
been documented in each unit (in some cases multiple times over
multiple months and years). Therefore, we conclude that all of the
critical habitat units contain all of the PCEs in the appropriate
quantities to support jaguars.
(128) Comment: It is not necessary to have all of the PCEs in each
critical habitat unit. The Service should consider designating areas in
which only some of the PCEs are present.
Our response: The Service recognizes that each critical habitat
unit does not need to contain all of the PCEs; however, the Service
considered the fact that this area is in the northern periphery of the
jaguar's range. Designating critical habitat only in areas with all
PCEs provides the best habitat available and, therefore, critical
habitat for the jaguar in the United States. Because habitat in the
United States is at the edge of the species' northern range, and is
marginal compared to known habitat throughout the range, we have
determined that all of the primary constituent elements discussed must
be present in each specific area to constitute critical 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, above). Further,
because the PCEs are based on recommendations from the Jaguar Recovery
Team and information from the latest jaguar habitat model (Sanderson
and Fisher 2013, entire), we have captured the areas in the United
States that support the conservation of the jaguar.
(129) Comment: The unoccupied units (specifically Subunit 4b) lack
the essential physical and biological features for critical habitat.
Our response: The Service recognizes that three designated critical
habitat Subunits (1b, 4b, and 4c) do not contain all of the physical or
biological features essential to the jaguar. However, under the second
part of the definition of critical habitat under the Act, we can
designate critical habitat in 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. The
Act does not require the Service to identify PCEs for unoccupied areas.
In areas lacking all PCEs (specifically Subunits 1b, 4b, and 4c), these
areas were designated because they are essential to the conservation of
the jaguar because they provide continuity to Mexico and connect
Subunits within the United States that would otherwise not be connected
to Mexico (Subunits 1a and 4a).
(130) Comment: Additionally, the Service failed to meet Data
Quality Act (DQA) standards. The DQA attempts to ensure that Federal
agencies, such as the Service, use and disseminate accurate information
by requiring those agencies to issue information guidelines ensuring
the quality, utility, objectivity, and integrity of the information
disseminated. The information disseminated by the Service in the
proposed rule fails to meet DQA standards because it is both biased and
inaccurate.
Our response: See our responses to comment numbers 16 and 18 in
Peer Reviewer Comments above.
(131) Comment: The Service must adopt ``regulatory Daubert'' by
informal rulemaking to prevent further subordination of science to
political policy (Holland 2008).
Our response: The commenter's reference to Daubert in Holland
(2008, p. 301) refers to the Daubert v. Merrell Dow Pharmaceuticals,
Inc. case that was decided by the Supreme Court. In Daubert v. Merrell
Dow Pharmaceuticals Inc., the U.S. Supreme Court empowered federal
judges to reject irrelevant or unreliable scientific evidence. Daubert
provides a suitable framework for reviewing the quality of agency
science and the soundness of agency decisions consistent with the
standards established for review of agency rulemakings under the
Administrative Procedure Act. Holland (2008) suggests that the Act
should be held to a similar information standard that was used in that
case, either through adoption by Federal courts, Congressional
amendment to the Act, or Executive Order. The Service has no authority
to adopt information standards different than those referenced in the
discussion above. These are the standards that we used in the
designation of critical habitat for the jaguar.
(132) Comment: The questionnaires distributed by the Service to
jaguar experts for use in developing the recovery outline for the
species and the application of the Delphi Method (a structured
communication technique using a systematic, interactive forecasting
method which relies on a panel of experts) are scientifically invalid.
Our response: The use of questionnaires and the Delphi Method is
not a scientifically invalid process. The Delphi Method can be a useful
technique in solving complex natural resource issues by synthesizing
expert opinion (for example, see Hess and King 2002, entire; Taylor and
Ryder 2003, entire; Plummer and Armitage 2007, entire), particularly
when data are lacking, there is great uncertainty, and the primary
source of information is informed judgment (Hess and King 2002, p. 28).
This is the case for jaguars in the northwestern-most part of the
species' range. For this reason, we determined that a modified Delphi
Method (in that we sent one round instead of multiple rounds of
questions to scientists with experience or expertise in jaguar ecology
(primarily in the northwestern-most portion of the jaguar range) or
large cat ecology) was appropriate to determine the habitat features
relied on by jaguars in this area. Please see the Recovery Outline for
the Jaguar for a description of this process (Jaguar Recovery Team
2012, pp. 15-16).
(133) Comment: ``Data'' resulting from a compilation of animals
either lured here artificially by sexual scent baiting or trapped
elsewhere and then released, do not support any scientific conclusion
of authentic habitat and run afoul of the ethics requirements of
biological science and of the Service.
Our response: The Service used the best available science to
determine critical habitat for the jaguar. We understand that some of
the jaguar records may be disputed due to the

[[Page 12629]]

possibility that female scat was used as a scent lure in some areas, or
that some individuals may have been released for ``canned'' hunts.
Therefore, we removed all sightings that may have been influenced by
female scat, which we determined to be from October 3, 2008 (the date
of Emil McCain's request for jaguar scat from the Phoenix Zoo), through
March 2, 2009 (the date Macho B was captured and flown to the Phoenix
Zoo), and we did not use records that may have been from ``canned''
hunts (Johnson et al. 2011, p. 9). See Table 1 of this final rule for
all of the undisputed Class I jaguar records used to determine
occupancy.
(134) Comment: The Service has given insufficient consideration of
competition for hunting territories or of availability of prey species
that would occur in the critical habitat areas if jaguars were to
actually inhabit the proposed critical habitat. Any increase in
predator population would necessarily create an imbalance in that
relationship (e.g., an increase in predator population without an
increase in prey population due to expansion of jaguar population).
Our response: The designation of critical habitat does not increase
the number of jaguars present in the United States. Designated 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. As discussed in the proposed rule and this final rule, the
purpose of designating critical habitat in the United States is to
provide areas for transient jaguars (with possibly a few residents) to
support the nearest breeding area to the south in Mexico, allowing this
population to expand and contract, and, ultimately, recover. It is our
intent that the designation of critical habitat will protect the
functional integrity of the features essential for jaguar life-history
requirements for this purpose into the future.
(135) Comment: The range of HII included in the Service's August
20, 2012, proposed rule is too restrictive and should be increased. The
primary constituent elements of jaguar critical habitat should include
areas with an HII of up to 30, if not more.
Our response: The range of HII included in this final rule (less
than 20) is appropriate. To the greatest extent possible, we have based
jaguar critical habitat, including the PCE for HII, on information
compiled and produced by the Jaguar Recovery Team. The Jaguar Recovery
Team comprises jaguar experts, large-cat experts, and stakeholders from
the United States and Mexico; therefore, we consider that the work
produced by the team is the best available scientific and commercial
data, and that following the team's recommendations is the best avenue
to conservation of the species and by extension designating critical
habitat. Therefore, we have incorporated the team's recommendation for
HII in the northern portion of the proposed Northwestern Recovery Unit
as a PCE for jaguar critical habitat.
(136) Comment: In developing the PCE of human influence, the
Service assumes that human influence has not changed over the time
period of jaguar records used in the analysis. Clearly human population
density, the location and traffic density of major roads, and the
extent of stable nighttime lighting (three examples of human influence
on which this PCE is based), have changed over the last century. By
using the HII GIS layer, the Service could grossly miscalculate the
habitat characteristics associated with jaguar locations from the early
to mid-20th century, including overestimating the degree of human
influence that jaguars prefer. The Service should use historical
records to estimate human influence associated with jaguar locations
throughout the 20th century. Without a proper correction for temporal
variation in HII, the GIS approach taken by the Service to develop and
map PCEs is fundamentally flawed and inappropriate.
Our response: The Service recognizes the temporal variation in
human influence over the time period of jaguar records used in the
analysis. However, as stated previously, the Act requires the Service
to use the best scientific and commercial data available. Data
pertaining to the variation of human influence from 1962 to present is
lacking.
(137) Comment: The Service does not account for the high level of
current and historic human activity within the northern Santa Rita
Mountains. As a result of mining operations in the Greaterville,
Rosemont, and Helvetia areas, the areas surrounding the proposed
Rosemont Project have been subject to relatively high levels of human
activity for over one and a half centuries. Given the close proximity
of the northern Santa Rita Mountains to the second largest metropolitan
area in Arizona and the area's proximity to State Highway 83, the area
currently receives heavy human use. In particular, the areas within and
surrounding the Rosemont Project do not contain the necessary PCE
associated with low human influence, and thus should not be included in
the proposed designation of critical habitat for jaguar.
Our response: We understand there may be discrepancies due to the
mapping scale of HII (1 km\2\ (0.4 mi\2\)), and have accounted for this
in the textual exclusion of paved or developed areas that may have been
included in the critical habitat boundary because of this scale.
However, overall HII is the best available science consistently and
objectively reflecting human influence on the landscape, and therefore
we continue to use it as the data source for the human influence PCE.
The critical habitat designation consists entirely of rural lands, in
variously low levels of development and population density. All the
units are in counties with population densities lower than their
statewide average, with the exception of Pima County, which includes
the city of Tucson.
(138) Comment: If the Service designates critical habitat, a de
facto wilderness will be created and people and activities will be
excluded from critical habitat.
Our response: Designated critical habitat does not create a
wilderness area, reserve, or otherwise protected area. Humans and legal
activities are not excluded from designated critical habitat. Legal
activities that have a Federal nexus (in that they occur on Federal
lands, require a Federal permit, or receive Federal funds) will be
evaluated on a case-by-case basis with respect to section 7
(consultation with the Service) of the Act to ensure they do not
destroy or adversely modify designated critical habitat.
(139) Comment: Human influence appears to be above the defined
threshold within the proposed rule in the northern Santa Rita Mountains
and should not be included in the proposed designation of critical
habitat for the jaguar. The GIS layer identified in the jaguar habitat
model entitled ``Human Footprint,'' available from Socioeconomic Data
and Applications Center, does not fit the description provided in the
proposed rule as it is not a relative index normalized by biome and its
scores range from 0 to 64. When brought into a GIS, the Human Footprint
layer (which fits the description provided in the proposed rule)
clearly demonstrates that human influence is high across a large area
proposed as critical habitat, including all of the northern Santa Rita
Mountains and the entirety of the Rosemont Project located within the
proposed designation, as well as Subunit 4b. Thus, according to the
thresholds set

[[Page 12630]]

forth by the proposed rule, the northern Santa Rita Mountains and the
areas within and surrounding the Rosemont Project should not be
included in the proposed designation as they do not include the
necessary PCEs.
Our response: In our August 20, 2012, proposed rule (77 FR 50214),
we incorrectly identified the Human Footprint (which is measured on a
scale of 0-100) available through Socioeconomic Data and Applications
Center as the GIS layer used to evaluate human influence. We did not
use the Human Footprint data, but rather the Human Influence Index
(which is measured on a scale of 0-64). The Human Influence Index is
the data layer used in both jaguar habitat models developed by
Sanderson and Fisher (2011, p. 7; 2013, p. 6) and used to designate
critical habitat for the jaguar. We have corrected this final rule to
reflect the appropriate data layer.
The Service utilized the Human Influence Index GIS layer, which is
based on eight input layers (human population density, railroads, major
roads, navigable rivers, coastlines, stable nighttime lighting, urban
polygons, and land cover) to describe a relative index of human
influence on the land. This GIS layer is available from the
Socioeconomic Data and Applications Center hosted by the Center for
International Earth Science Information Network at Columbia University
(http://sedac.ciesin.columbia.edu/data/collection/wildareas-v2/sets/browse). Please see our response to comment number 43 for a
comprehensive list of all data sources we used in our analysis.
(140) Comment: Because approximately 35 percent of the areas
proposed as critical habitat are non-federal lands, many of the areas
currently associated with high human influence could experience
additional human impacts from future development. Critical habitat
affords no protection to actions on private or state lands that do not
require federal actions, and thus does little to alleviate this
problem. Because of the importance placed on the PCE of low human
influence by the proposed rule, areas currently associated with high
human influence should not be included in the proposed designation.
Our response: We have not included areas within critical habitat
with high human influence. In the proposed rule and this final rule we
have identified an HII of less than 20 as an essential PCE of critical
habitat. We understand there may be discrepancies in some cases due to
the mapping scale of HII (1 km\2\ (0.4 mi\2\)), and we have accounted
for this in the textual exclusion of paved or developed areas that may
have been included in the critical habitat boundary because of this
scale.
We understand that additional human impacts from future development
on private or State lands could occur. However, critical habitat does
afford some protection to the jaguar through section 7 consultation
under 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. 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. Therefore, actions that are funded,
permitted, or carried out by a Federal agency within jaguar critical
habitat will continue to be evaluated to determine their impacts on
critical habitat.
(141) Comment: Climate change is a factor affecting jaguar
adaptation and conservation, and the Service should include lands at
higher elevations and latitudes in the critical habitat designation.
The Service should consider that climate change will force species,
such as jaguars, to migrate north, and designating critical habitat for
the jaguar in the United States is necessary.
Our response: The Service considered numerous scientific
information sources as cited in our proposed rule and this final rule.
The Service agrees that the best available scientific information shows
unequivocally that the Earth's climate is currently in a period of
unusually rapid change and the impacts of that change are already
occurring (National Fish, Wildlife, and Plants 2012, p. 9). The Service
recognizes that some species are shifting their geographic ranges,
often moving poleward or upwards in elevation (National Fish, Wildlife,
and Plants 2012, p. 10). Range shifts are not always negative: Habitat
loss in one area may be offset by an increase elsewhere such that if a
species is able to disperse, it may face little long-term risk.
However, it is clear that shifting distributions can lead to a number
of new challenges (National Fish, Wildlife, and Plants 2012, p. 26).
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). The Service acknowledges
in the proposed rule and this final rule that climate change has the
potential to adversely affect the jaguar within the next 50 to 100
years (Jaguar Recovery Team 2012, p. 32). However, the degree to which
climate change will affect jaguar habitat in the United States is
uncertain. Further, 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. Consequently, because the
specific impacts of climate change on jaguar habitats remains uncertain
at this time, we did not recommend that any areas be designated as
critical habitat specifically to account for the negative effects of
climate change.
(142) Comment: It is inappropriate for the Service to address
climate change within the critical habitat designation area for the
jaguar because of the lack of data or accurate down-scaled climate
modeling. Climate change information from the IPCC is flawed;
therefore, the Service should not consider it.
Our response: See our response to comment number 59 in Comments
from States above.
(143) Comment: The Service received multiple comments regarding
climate change. Some thought there was not sufficient information on
climate change for the Service to determine impacts to the jaguar.
Others thought that there is more than enough information on impacts
from climate change, which the Service did not adequately consider.
Our response: As required by section 4(b)(1)(A) of the Act, we use
the best scientific and commercial data available to designate critical
habitat. We reviewed all available information pertaining to climate
change and the jaguar, but climate change data specific to jaguars or
similar species is scarce. The Service recognizes that the best
available scientific information shows unequivocally that the Earth's
climate is currently in a period of unusually rapid change and the
impacts of that change are already occurring (National Fish, Wildlife,
and Plants 2012, p. 9). However, because the specific impacts of
climate change on jaguar habitats remain uncertain at this time, we did
not recommend any areas be designated as critical habitat specifically
to account for the negative effects of climate change. Please see our
response to comment number 33 in Peer Reviewer Comments above.
(144) Comment: The Service should not consider climate change
because it is not certain to occur, or may not occur to the severity
that is predicted by experts.

[[Page 12631]]

Our response: Please see our response to comment number 59 in
Comments from States above.
(145) Comment: Clarify if highways and the City of Sierra Vista
were excluded from critical habitat designation.
Our response: Yes, these areas are not included in the critical
habitat designation. When determining critical habitat boundaries
within this final rule, we made every effort to avoid including
developed areas such as lands covered by buildings, pavement, roads,
cities, and other structures because such lands lack physical or
biological features 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 final rule have been excluded by text in the rule
and are not designated as critical habitat. Therefore, a Federal action
involving these lands will 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 features in the adjacent critical habitat.
(146) Comment: The Service did not adequately analyze whether or
not critical habitat areas would require special management of the
physical and biological feature and PCEs. Areas that are managed in a
way that maintains the physical or biological features essential to the
species do not meet the statutory definition of critical habitat and,
therefore, are not eligible to be designated as critical habitat. The
proposed rule does not contain these findings. Instead, the proposed
rule contains broad generalizations regarding threats to the species
and pronounces that special management is needed to address the threats
without assessing whether existing protections are adequate.
Our response: The Act does not require that the Service evaluate
the inadequacy of existing regulatory mechanisms for critical habitat
designation. The Act requires the Service to analyze this factor to
determine whether a species is endangered or threatened. Under the Act
critical habitat is defined as the geographical area occupied by the
species at the time of listing that contains those physical or
biological features that: are essential to the conservation of the
species and which ``may'' require ``special management'' considerations
or protection. It does not state that critical habitat contain those
physical or biological features where ``additional'' special management
is ``needed''. In Center for Biological Diversity v. Norton, 240 F.
Supp. 2d 1090 (D. Ariz. Jan. 13, 2013), the court stated that the fact
that habitat is already under some sort of conservation management
indicates that such habitat is critical. Therefore, special management
considerations or protection of the habitat features comprising jaguar
critical habitat may be necessary.
(147) Comment: Special management of jaguar critical habitat is not
required because of the cooperative management efforts and achievements
of the Jaguar Conservation Team. Additionally, the Arizona Game and
Fish Department and New Mexico Department of Game and Fish, with
assistance from the Service and other cooperators, have already
carefully crafted a Memorandum of Understanding and Conservation
Framework to maintain the jaguar's core commitments in several areas of
conservation; therefore, no special management is required.
Our response: We appreciate and acknowledge the work conducted by
the Jaguar Conservation Team and the States since 1997. However, as
stated in our response to comment number 60 in Comments from States
above and comment number 146 in Public Comments above, special
management considerations or protection of the habitat features
comprising jaguar critical habitat may be necessary.
(148) Comment: Special management along the border could be waived
to address national security issues.
Our response: We understand that laws related to the expeditious
construction of border infrastructure in areas of high illegal entry
may be waived by the Secretary of DHS, and we have discussed this issue
in the Special Management Considerations or Protections section of this
final rule. As also noted in this final rule, we know of no plans to
construct additional security fences in the designated critical
habitat, although should future national security issues require
additional measures, the Secretary of DHS may invoke the waiver, and
special management considerations would continue to occur on a
voluntary basis on activities covered by a waiver. Other forms of
border infrastructure, however, do not fall under this waiver
(construction of towers, for example); therefore, special management
considerations apply to these projects, and we consult with DHS to
minimize the impacts to listed species and their critical habitat.
(149) Comment: McCain and Childs (2008) misstate the total number
of jaguar records in the United States, incorrectly calculate
percentages based on these records, and improperly round their results
to create the false illusion of an extinction crisis in the United
States.
Our response: We disagree. We have reviewed McCain and Childs
(2008) and did not find there to be misstatements and miscalculations
in the report. Additionally, McCain and Childs (2008) is a peer-
reviewed article published in a reputable journal (Journal of
Mammalogy). Therefore, we continue to utilize information in this
article as some of the best available science.
(150) Comment: The recovery outline for the jaguar states that
water for jaguars must be made available within 10 km (6.2 mi) year
round for ``high quality'' jaguar habitat to exist in the American
Southwest and within 20 km (12.4 mi) by use of this rule everywhere
else in the area proposed as critical habitat for jaguar. This water
requirements for jaguars described in the proposed rule raise water
resources issues that require active cooperation between the Service
and local governmental entities to resolve in concert with the
development of critical habitat for the jaguar under section 2(c)(2) of
the Act. The Service has refused, and is continuing to refuse, to
resolve water resource issues associated with the designation of
critical habitat for jaguar.
Our response: We recognize our responsibilities under section
2(c)(2) of the Act to cooperate with State and local agencies to
resolve water resource issues in concert with conservation of
endangered species, such as the jaguar. We look forward to working with
the water resource agencies to resolve any such issues. However, this
cooperation is, for the most part, independent of our requirement under
section 4(a)(3)(A) of the Act to designate critical habitat for the
jaguar. Impacts to water management and resource activities are not
expected to be controversial because, as discussed in the analysis of
impacts on water resources, the constraints on current water management
activities are expected to be limited (Mangi Environmental Group 2013).
(151) Comment: Executive Order 13563 of January 18, 2011 (Improving
Regulation and Regulatory Review), explicitly states that our
``regulatory system must protect public health, welfare, safety, and
our environment while promoting economic growth, innovation,
competitiveness, and job creation.'' Consistent with this mandate,
Executive Order 13563 requires agencies to tailor ``regulations to
impose the least

[[Page 12632]]

burden on society, consistent with obtaining regulatory objectives.''
It also requires agencies to ``identify and consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice'' while selecting ``those approaches that maximize net
benefits.'' To the extent permitted by law, our regulatory system must
respect these requirements.
Our response: We have followed, and will continue to follow, the
directives in Executive Order 13563. As part of the process to
designate critical habitat, we have completed an economic analysis on
the potential incremental impacts of the designation. Critical habitat
only affects Federal actions through a requirement to consult on those
actions that may affect critical habitat to ensure they do not
adversely modify critical habitat.
(152) Comment: Lands within the critical habitat areas already have
land protection due to Federal or Tribal ownership or local land
management plans. In contrast, we also received comments stating that
the lands within critical habitat areas are not protected adequately
for jaguar conservation.
Our response: We recognize that some lands within the designation
are already being managed for conservation purposes that provide some
benefits to the jaguar. Section 4(b)(2) of the Act states the Secretary
may exclude an area from critical habitat if she determines that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat, unless she determines, based on
the best scientific 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 Secretary has broad discretion
regarding which factor(s) to use and how much weight to give to any
factor. In the proposed rule we acknowledge that some areas within the
proposed designation are included in management plans or other large-
scale habitat conservation plans including the Forest Service, National
Park Service, Fish and Wildlife Service refuge, Bureau of Land
Management, Malpai Habitat Conservation Plan, Pima County's Draft
Multi-Species HCP, State Wildlife Action Plans, and Jaguar Conservation
Agreements between the Arizona Game and Fish Department and New Mexico
Department of Game and Fish. However, these plans do not specifically
address jaguar habitat.
In the proposed rule we noted that we were considering exempting
Fort Huachuca and excluding the Tohono O'odham Nation. We have reviewed
the comments from the public on these matters. We have determined that
the benefits of excluding the Tohono O'odham Nation outweigh the
benefits of inclusion. In regards to Fort Huachuca, the Service has
exempted Fort Huachuca from critical habitat designation based on their
INRMP. See the Exemptions and Exclusions sections of this final rule
for additional information.
(153) Comment: The jaguar is already protected in the United States
by both Federal and State laws.
Our response: The jaguar does already receive some protection under
the Act as a Federally listed species. However, the Service has
determined that designation of critical habitat for the jaguar is
prudent and determinable based on the best available scientific data
available. Section 4(a)(3)(A) of the Act states that critical habitat
shall be designated for endangered and threatened species to the
maximum extent prudent and determinable. Therefore, we are required to
designate critical habitat for the jaguar to fulfill our legal and
statutory obligations. See our response to comment number 1 in the Peer
Reviewer Comments above. Further, critical habitat does afford
protection to the jaguar through section 7 consultation under 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. 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. Therefore, actions that are funded, permitted, or
carried out by a Federal agency within jaguar critical habitat will
continue to be evaluated to determine their impacts on critical
habitat.
(154) Comment: The primary threat to jaguars is through hunting and
other activities that ``take'' individuals, not habitat fragmentation.
Our response: As discussed in the Special Management Considerations
or Protections section of this final rule, there are threats to the
physical or biological feature essential to the conservation of jaguar
habitat that may require special management. 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. In the past, the primary threat to jaguars in the United States
was illegal shooting (see listing rule for a detailed discussion);
however, this 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). Please see the 1997 clarifying rule (62 FR 39147; July 22,
1997) and the Recovery Outline for the Jaguar (Jaguar Recovery Team
2012, entire) for more information about threats to jaguars.
(155) Comment: The designation of private lands as critical habitat
will affect private property rights. Specifically, designated critical
habitat will limit the use and enjoyment of the property, impact
ongoing maintenance and improvement, limit or modify ranching
practices, and curtail other legal uses of the property. Designating
critical habitat for the jaguar will result in regulatory takings of an
individual's livelihood and, ultimately, his or her property.
Our response: As stated in our proposed rule, the Service has
followed Executive Order 12630 (``Government Actions and Interference
with Constitutionally Protected Private Property Rights''). The
designation of jaguar critical habitat is not anticipated to have
significant takings implications for private property rights. As
discussed in the Critical Habitat section of this final rule, 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. Our economic analysis
for proposed critical habitat designation found only limited
incremental impacts of the designation and extremely small impacts on
activities on private lands.
(156) Comment: It was inappropriate to use roads as a natural
boundary to designate jaguar critical habitat.
Our response: We did not use roads as a natural boundary to
designate critical habitat. Instead, critical habitat units are defined
by the PCEs around which they are based, one of which includes roads as
part of the human influence on the landscape (the Human Influence
Index), but the use of roads in the definition of critical habitat
units is only to give context to the location of the unit, not as the
official unit

[[Page 12633]]

description. See the maps for the official boundaries themselves.
(157) Comment: The Service should acknowledge that new jaguar
observations within the United States could lead to revisions in the
designation of critical habitat.
Our response: We acknowledge that the Act authorizes the Service to
make revisions to designated critical habitat. If in the future the
best available information at that time indicates revision of critical
habitat is appropriate, and if resources are available we may revise
this critical habitat designation.
(158) Comment: The Service incorrectly stated that jaguars in the
United States and northwestern Mexico represent the northernmost extent
of the jaguar's range, with populations persisting in distinct
ecological conditions demonstrated by xeric (extremely dry) habitat
that occurs nowhere else in the species' range (Sanderson et al. 2002,
entire). Sanderson et al. (2002, p. 64) does briefly mention the
persistence of the populations in arid regions in Sonora, but also
identifies areas in Venezuela and Brazil as xeric habitat that jaguars
currently inhabit (Sanderson et al. 2002, Table 2). The populations in
Venezuela and Brazil have shorter and more numerous corridors to
connect populations in this area, thus facilitating gene flow. This
contradicts the Service's assertion that jaguars in the United States
are important sources of genetic resources, and, therefore,
connectivity to Mexico is essential to the conservation of the jaguar.
Our response: We have modified this language in this final rule.
See the Jaguar Recovery Planning in Relation to Critical Habitat
section above in this final rule.
(159) Comment: The Service provided no evidence that population
genetic resilience or persistence will be improved for jaguars by
designating critical habitat in the United States. No empirical
evidence was presented in the proposed designation that jaguars
observed in the United States represent a genotype different from the
closest breeding population of jaguars 209 km (130 miles) to the South
in Mexico.
Our response: As described in this final rule, jaguars in the
United States and northwestern Mexico represent the northernmost extent
of the jaguar's current range, representing a population persisting in
one of only four distinct xeric (extremely dry) habitats that occur
within the species' range (Sanderson et al. 2002, Appendix 1). We did
not determine that jaguars in the United States represented a different
genotype than those from the closest breeding population in Mexico;
rather, jaguars in the United States are likely dispersing from the
nearest breeding population in Mexico, and the conservation role or
value of jaguar critical habitat is to provide areas to support these
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.
(160) Comment: The critical habitat designation and the direction
outlined in the Recovery Outline relies on connectivity to Mexico for
the recovery of jaguars, but this connectivity may be impacted by
current and potential future border security efforts, primarily efforts
to secure the international border with Mexico through the use of
various types of fencing, towers, lighting, and roads. The Service
incorrectly presumes that border security infrastructure will not
continue.
Our response: We acknowledge that there may be some potential
impacts related to border security infrastructure and maintaining
habitat connectivity for jaguars between the United States and Mexico.
However, as indicated in the proposed rule and this final rule, there
are critical habitat areas that are not impacted by existing border
infrastructure and which continue to provide habitat connectivity to
Mexico. These areas are typically very steep and rugged and not
conducive to the construction of fences or roads. We do not anticipate
that additional fencing or roads will be constructed in designated
critical habitat due to the prohibitive cost and engineering
constraints. If such projects are proposed, the designation of critical
habitat will provide a regulatory layer of evaluation that will allow
us to work with Federal agencies and landowners to resolve issues
related to border security, but also ensure that the elements of jaguar
critical habitat are maintained and functioning to the extent that the
law allows, and that will facilitate cross-border movements by jaguars.
(161) Comment: Critical habitat designation along the U.S.-Mexico
border is in conflict with national security and continued border
security efforts and is not prudent. It appears that the Service wants
to stop the Border Patrol from protecting our borders, restrict or
completely halt road widening and construction of roadways, powerlines,
pipelines, etc., and restrict or completely halt all mineral extraction
and mining.
Our response: We do not anticipate that the designation of critical
habitat for the jaguar will prevent the implementation of solutions
that address national security. Further, environmental laws and
regulations related to the expeditious construction of border
infrastructure in areas of high illegal entry may be waived by the
Secretary of DHS. We will continue to comply with directives related to
border security and work with the Federal agencies involved in border
security through existing processes, including section 7 consultation.
If the consideration of environmental laws and regulations is waived in
order to address national security, we will continue to work with the
Federal agencies to incorporate measures into infrastructure design and
construction that will avoid or minimize effects of these actions on
jaguar habitat connectivity. In regards to the designation of critical
habitat not being prudent, see our response to comment number 1 in the
Peer Reviewer Comments above.
(162) Comment: Existing agreements, such as the Memorandum of
Understanding (MOU) between the Coronado National Forest (CNF) and
Customs and Border Protection (CBP), are adequate to resolve
environmental issues and reduce impacts to national security, and there
is no need for the designation of critical habitat for the jaguar.
Our response: Based on the best available scientific data
available, the Service has determined that designation of critical
habitat for the jaguar is prudent and determinable. See our response to
comment number 1 in the Peer Reviewer Comments above.
(163) Comment: The Service should not exclude mining claims from
critical habitat. The Service should forbid mining within critical
habitat. All PCEs (and particularly connectivity to Mexico) will be
impacted by mining, causing further habitat fragmentation.
Our response: We are not excluding mining claims from critical
habitat. 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. See our response to
comment number 64 above in Comments from States for discussion on
exclusions, and see our response to comment number 71 in Public
Comments for discussion on excluding the Rosemont Mine. Rather, all
projects with a Federal nexus proposed within jaguar critical habitat
in the United States will be evaluated on a case-by-

[[Page 12634]]

case basis with respect to section 7 of the Act.
The conservation value of the Rosemont Mine area is important to
the jaguar for maintaining connectivity with the other critical habitat
units and with Mexico. Regarding the Hermosa project, although it is
too early to begin a section 7 consultation because the project is
still in the early planning stages, the economic impacts are expected
to be much the same as for Rosemont Mine. The Hermosa project is in the
same occupied unit and, therefore, incremental costs are expected to be
low. The conservation value of this area for the jaguar may be even
greater than for the Rosemont area because the Hermosa project is only
9 miles north of the U.S.-Mexico border, meaning that this area is very
important for maintaining connectivity to Mexico.
Unlike more permanent habitat alterations such as building
construction and asphalt paving, mines are temporary habitat
disturbances and their effects can be mitigated following their
economic lifespan. The economic life of Rosemont Mine is forecast to be
21 years, after which time conservation measures such as restoration of
surface springs and revegetation of the mine reclamation area would
take place. The Rosemont Mine area of critical habitat can be an
important tool for promoting conservation of the jaguar and will
continue to have conservation value for the species post-reclamation.
(164) Comment: The essential element of water within 20 km (12.4
mi) of each other is not met without relying on livestock water tanks
created on ranch lands.
Our response: We acknowledge that in some cases water sources may
be stock tanks, which may be used by any number of wildlife, including
jaguars. Many stock tanks, however, are not included in the USGS NHD
data layer, and other sources of water are available across the
landscape, as well. We also understand that the availability of water
across the landscape during the year is variable, based on a variety of
climatic factors and ranch management practices. Even with the
variability, and the fact some water sources may be provided by stock
tanks, the best available scientific data provided by the USGS NHD data
layer indicates that there is sufficient water available for jaguars
within the final critical habitat designation.
(165) Comment: Jaguars and livestock ranching are not compatible.
Our response: The jaguar is already present in the United States
(see Table 1 in this final rule) and protected under the Act as a
listed species. Designation of critical habitat does not change the
status of the species, nor does it imply that we are proposing to
introduce jaguars into these areas or that critical habitat is being
designated with the expectation that a jaguar population will
eventually reside in these areas. As discussed in the proposed rule and
this final rule, the purpose of designating critical habitat in the
United States is to provide areas for transient jaguars (with possibly
a few residents) to support the nearest breeding area to the south,
allowing this population to expand and contract, and, ultimately,
recover. It is our intent that the designation of critical habitat will
protect the functional integrity of the features essential for jaguar
life-history requirements for this purpose into the future.
In terms of cattle depredation due to jaguars, we understand this
may occur, and are aware of one recent (2007) jaguar depredation event
in the United States in the Altar Valley area (McCain and Childs 2008,
pp. 4-5). The designation of critical habitat does not alter or
increase this possibility. We are aware, however, of the concern that
cattle depredations may occur in the future, and we are working with
the Jaguar Recovery Team to develop strategies to avoid these types of
conflicts. We will include these strategies and actions in the draft
Recovery Plan for the Jaguar.
In addition, 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. See the Critical
Habitat section of this final rule for further information on critical
habitat designation.
(166) Comment: The Service should increase the range of canopy
cover used to delineate critical habitat (which was 3-40 percent in the
proposed rule).
Our response: In the revised rule and this final rule the Service
increased the range of canopy cover to greater than 1 to 50 percent
tree cover. Sanderson and Fisher (2011, p. 7; 2013, pp. 5-6) also added
a digital layer to capture canopy cover (called land cover in the
reports), as represented by a digital layer called tree cover. In the
latest version of the model (version 13), Sanderson and Fisher (2013,
p. 20) analyzed the tree cover preferred by jaguars in the Jalisco Core
Area (the southernmost part of the Northwestern Recovery Unit)
separately from tree cover in all other areas (note that p. 15 of this
report incorrectly states that the Sinaloa Secondary Area is included
with the Jalisco Core Area in this analysis) to reflect the major
habitat shift from the dry tropical forest of Jalisco, Mexico, to the
thornscrub vegetation of Sonora, Mexico. The results of these analyses
indicate that jaguars in the southernmost part of the Northwestern
Recovery Unit (the Jalisco Core Area) seem to inhabit a wider range of
tree cover values (greater than 1 to 100 percent), whereas jaguars
throughout the rest of the Northwestern Recovery Unit (including the
United States) appear to inhabit a narrower range of tree cover values
(greater than 1 to 50 percent) (Sanderson and Fisher, p. 20).
(167) Comment: The designation should include biotic communities
other than Madrean evergreen woodland and semidesert grassland.
Our response: To define the physical and biological features
required for jaguar habitat in the United States, we are relying on
information provided by the Jaguar Recovery Team, which we consider the
best available science. This information was provided in two habitat
modeling reports, Sanderson and Fisher (2011, pp. 1-11) and Sanderson
and Fisher (2013, entire). Additionally (and as also described in our
response to comment number 43 in Comments from States above), the
Service analyzed a subset of recent, highly accurate jaguar locations
from Mexico and the United States to determine if filtering the
observations in this way would influence the frequency that these
observations occurred across the range of habitat variables.
As described in our response to comment number 43 in Comments from
States above, the results of our additional analysis indicate that the
overall pattern in frequency of jaguar observations using these highly
accurate locations relative to the habitat variables is similar to the
patterns observed using the entire data set used for version 13 of the
habitat model (Sanderson and Fisher 2013, entire). Specifically related
to tree cover and biotic communities, 95 percent of these highly
accurate locations are found in greater than 1 to 50 percent tree cover
(for all jaguar observations except those in the southernmost part of
the Northwestern Recovery Unit), and, within the United States, 95
percent (of the 44 locations

[[Page 12635]]

total within the United States) are within Madrean evergreen woodland
(43 percent) and semidesert grassland (52 percent). Therefore, we
determine that a tree cover of greater than 1 to 50 percent, and biotic
communities described as Madrean evergreen woodland and semidesert
grassland, comprise the vegetation PCE of the physical or biological
feature for jaguar critical habitat.
(168) Comment: The Service should include higher elevation areas as
critical habitat.
Our response: As described in this final rule, we did not include
areas higher than 2,000 m (6,562 ft) in elevation because information
provided by the Jaguar Recovery Team, which we consider the best
available science, indicates that areas above 2,000 m (6,562 ft) do not
provide jaguar habitat, as only 3.3 percent (15 of 453) of the
observations utilized in the most recent jaguar habitat modeling effort
occur above this elevation (Sanderson and Fisher 2013, pp. 19, 29; note
that p. 19 incorrectly states 20 observations above 2,000 m (6,562 ft)
instead of 15, and Table 1.3 incorrectly states 452 jaguar observations
total instead of 453). Consequently, our revised proposed rule and this
final rule include an upper-elevation limit of 2,000 m (6,562 ft) to
define jaguar critical habitat.
(169) Comment: Habitat conditions associated with jaguar locations
may be inaccurate because the jaguar may have been chased to that
location during a hunting event, and, therefore, the location may not
represent the habitat in which it was residing.
Our response: The Service has used the best scientific and
commercial data available as required by the Act. As described above,
we determine that the range of tree cover included in the latest
habitat model (Sanderson and Fisher 2013, entire) is not unreliable,
and that the biotic communities of Madrean evergreen woodland and
semidesert grassland provide the best, and, therefore, essential,
jaguar habitat within the United States. See our response to comment
number 43 in Comments from States above.
(170) Comment: Habitat conditions associated with jaguar locations
may be inaccurate because we did not account for the temporal variation
in habitat conditions across the timeframe of detections, and that we
instead assume that current habitat characteristics of jaguar locations
(such as canopy cover) are exactly the same as the characteristics
present at the time of detection, whereas they likely are not. The
Service should use Turner et al. (2003) as a reference for changes in
vegetation characteristics in portions of the Southwest over time.
Our response: We investigated Turner et al. (2003), and, while
informative, a method for consistently and objectively determining and
mapping the temporal vegetation changes across the entirety of southern
Arizona and southwestern New Mexico is not provided. Additionally, see
our response to comment number 43 in Comments from States above.
(171) Comment: Habitat conditions associated with jaguar locations
may be inaccurate because we excluded 30 percent of the 333 occurrences
to find that 70 percent were in areas of 3 to 60 percent tree cover.
Our response: See our response to comment number 43 in Comments
from States above.
(172) Comment: The Service should expand the categories of
ruggedness considered as critical habitat to include more level and
extremely rugged areas. Specifically, Sanderson and Fisher (2011)
graphically depict approximately 112 occurrence records in areas of
``level,'' ``nearly level,'' and ``slightly rugged'' terrain, which is
more than half of the approximately 208 occurrences in
``intermediately,'' ``moderately,'' and ``highly'' rugged terrain.
Our response: We determine that the range of terrain ruggedness
categories included in the latest habitat model (Sanderson and Fisher
2013, entire) accurately reflects the best, and, therefore, critical,
jaguar habitat in the United States. See our response to comment
numbers 43 and 63 in Comments from States above.
(173) Comment: The Service should exclude areas within 6.5 km (5
miles) of a well-used road rather than 4.5 km (2.8 miles) as discussed
in the proposed rule.
Our response: The Service did not use an exclusion area of 6.5 km
(5 miles) or 4.5 km (2.8 miles) around well-used roads in the proposed
rule, and we are not using such parameters in this final rule. In the
proposed rule we evaluated the best available scientific data,
including Zarza et al. (2007, pp. 107, 108), which reported 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. However, we
did not use this data to develop our PCE for human disturbance. The
Service identified a PCE characterized by minimal to no human
population density, no major roads, or no stable nighttime lighting
over any 1 km\2\ (0.4 mi\2\) area. This is based on the HII used in the
habitat model developed by Sanderson and Fisher (2011, pp. 5-11, 2013
p. 6). In the latest version of the habitat model (Sanderson and Fisher
2013, entire), jaguar habitat was partly defined by an HII of less than
20 in the northernmost part of the Northwestern Recovery Unit.
Additionally (and as also described in our response to comment number
43 in Comments from States above), the Service analyzed a subset of
recent, highly accurate jaguar locations from Mexico and the United
States to determine if filtering the observations in this way would
influence the frequency that these observations occurred across the
range of habitat variables.
(174) Comment: Future roads and transmission lines could cause
habitat fragmentation.
Our response: The Service recognizes that an increase in road
density and human settlements tends to fragment habitat and isolate
populations of jaguars and other wildlife (Noss et al. 1996 and Carroll
et al. 2001, as cited by Menke and Hayes 2003, p. 12). However, in our
economic analysis, no major roads or transmission lines were identified
within jaguar critical habitat. Further, future road and transmission
lines with a Federal nexus proposed within jaguar critical habitat in
the United States will be evaluated on a case-by-case basis with
respect to section 7 of the Act.
(175) Comment: Critical habitat units that are to provide
continuous habitat within the United States and subunits that are to
provide connectivity to Mexico are crossed by roads with high traffic
volumes and do not meet the Service's PCEs.
Our response: The Service recognizes that jaguar critical habitat
contains roads; however, the presence of roads does not preclude an
area from meeting PCE 7, pertaining to human influence. PCE 7 is
characterized by minimal to no human population density, no major
roads, or no stable nighttime lighting over any 1 km\2\ (0.4 mi\2\)
area. The PCE does not stipulate the complete absence of roads; rather
the PCE stipulates no major roads over the specified area (see http://sedac.ciesin.columbia.edu/data/set/wildareas-v2-human-influence-index-geographic/maps).
(176) Comment: Jaguars avoid human disturbance but male jaguars
readily cross roadways and areas of human activity. Areas of human
disturbance and roads do not prevent jaguars from using these areas.
Our response: In our proposed rule, the Service recognizes that
male jaguars have been documented near roads, but the data do not
indicate that this is where the majority of jaguar sightings

[[Page 12636]]

occur. Studies have also shown that jaguars selectively use large areas
of relatively intact habitat away from certain forms of human
influence. The Act requires us to determine critical habitat based on
the physical and biological features essential to the jaguar; we
determined that the most recent habitat model (Sanderson and Fisher
2013, entire), which uses the human influence index, provides the best
available scientific data to determine these features.
(177) Comment: The Service should consider the impacts of smaller
roads on wildlife, which have been well documented, in regards to how
small roads could impact jaguar critical habitat. In addition to
negative impacts on wildlife, primitive roads damage soils, vegetation,
air quality, water quality, and archeological artifacts, and introduce
noxious, nonnative species into forests where they often out-compete
native species. The environmental effects of roads, road density, and
off-road recreational activity are not individual, but rather
cumulative and synergistic because seemingly small, individual impacts
may result in large-scale changes in the reproductive success and
survival of organisms, thereby altering the ecology of an area.
Our response: While the Service did not specifically consider
impacts of smaller roads, the Service used the human influence index
(HII), which is 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. This is based on the HII used in the
habitat model developed by Sanderson and Fisher (2011, pp. 5-11, 2013
p. 6). In the latest version of the habitat model (Sanderson and Fisher
2013, entire), jaguar habitat was partly defined by an HII of less than
20 in the northernmost part of the Northwestern Recovery Unit.
Additionally (and as also described in our response to comment number
43 in Comments from States above), the Service analyzed a subset of
recent, highly accurate jaguar locations from Mexico and the United
States to determine if filtering the observations in this way would
influence the frequency that these observations occurred across the
range of habitat variables.
The results of our additional analysis indicate that the overall
pattern in frequency of jaguar observations using these highly accurate
locations relative to the habitat variables is similar to the patterns
observed using the entire data set used for the updated habitat model
(Sanderson and Fisher 2013, entire). Specifically related to HII, 97
percent are located in areas where the HII is less than 20, which is
the range of HII that the Jaguar Recovery Team determined to provide
the best jaguar habitat in the northernmost portion of the proposed
Northwestern Recovery Unit. 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. We consider that the human
influence PCE, as determined by the Human Influence Index, adequately
captures the impact of roads (see http://sedac.ciesin.columbia.edu/data/set/wildareas-v2-human-influence-index-geographic/maps).
(178) Comment: Since jaguar recovery in the United States is
contingent upon recovery in Mexico, it is important to ensure that any
United States Federal activities do not jeopardize the jaguar,
adversely modify its habitat, or destroy its habitat in Mexico. To the
extent that the Mexican Government has identified jaguar habitat that
is critical to the species, the United States should incorporate that
designation by reference in its critical habitat designation, as well
as any eventual recovery plan for the species. And where an agency
action could result in jeopardy or potentially adversely modify habitat
in Mexico, that agency must consult with the Service.
Our response: We do agree that conservation of the jaguar and its
habitat in Mexico is vital to its recovery. Therefore, we will continue
to work with our partners in Mexico toward conservation of the species
there. Our regulations for critical habitat designation (50 CFR
424.12(h)) specifically preclude designation of lands outside of the
U.S. jurisdiction. Therefore, we did not designate any areas in Mexico
as critical habitat. In addition, our section 7 consultation
implementing regulations (50 CFR 402.01) limit the definition of an
action to all activities or programs of any kind authorized, funded, or
carried out, in whole or in part, by Federal agencies in the United
States or upon the high seas. Therefore, we do not consult on Federal
actions outside of these areas.

Exclusions and Exemptions

(179) Comment: The Service should exclude the City of Sierra Vista.
Our response: Critical habitat does not include 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 final rule
have been excluded by text in the rule and are not designated as
critical habitat.
(180) Comment: The interests of national security and economic
stability outweigh benefits of critical habitat designation.
Our response: The Service has conducted an analysis of impacts to
national security and economics. The results of this analysis indicate
that designation of critical habitat will not affect national security
or economics. A copy of the final economic analysis with supporting
documents may be obtained by contacting the Arizona Ecological Services
Fish and Wildlife Office (see ADDRESSES) or by downloading from the
Internet at http://www.regulations.gov. See the Application of Section
4(b)(2) of the Act section of this final rule.
(181) Comment: The Service should exclude Cochise County because
the Cochise County Comprehensive Plan (amended in 2011) already
provides habitat conservation for the jaguar making critical habitat
unnecessary.
Our response: Critical habitat does not include 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 final rule
have been excluded by text in the rule and are not designated as
critical habitat.
(182) Comment: The Service should exclude the residential
subdivision located east of State Highway 83 in Subunit 4b (formerly
within Subunit 4b, now within Unit 3). Excluding these areas will not
cause the species' extinction.
Our response: Critical habitat does not include 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

[[Page 12637]]

such lands inadvertently left inside critical habitat boundaries shown
on the maps of this final rule have been excluded by text in the rule
and are not designated as critical habitat.

NEPA

(183) Comment: The Service should complete a full environmental
impact analysis because of the degree to which the action may establish
a precedent for future actions with significant effects or represents a
decision in principle about a future consideration.
Our response: The designation of critical habitat by the Service
for the conservation of endangered species is not a precedent-setting
action with significant effects. The agency has designated critical
habitat for numerous other species.
(184) Comment: The Service should complete a full environmental
impact analysis because the Service re-defines the time of listing as a
50-plus-year time period, which is arbitrary and capricious.
Our response: The time of listing (for the purpose of determining
whether it can be properly considered critical habitat) has no
relevance in evaluating impacts to the human environment. In the
context of an environmental assessment, the evaluation of the impacts
of critical habitat designation focuses on outcomes of the potential
increase in section 7 consultations resulting from the designation,
since the designation does not itself produce or authorize direct
physical impacts. For the jaguar, the Service's classification of
whether a particular area was occupied at the time of listing or not
(for the purpose of determining whether it can be properly considered
critical habitat) has no relevance to determining section 7
consultation outcomes and the impacts of critical habitat designation.
Given the secretive and transient nature of the jaguar, Federal land
managers currently take steps to protect the jaguar even without
critical habitat in areas that are considered by the Service to be both
occupied and unoccupied at the time of listing. In determining whether
there is a possibility that a project or action would jeopardize the
species, the Service considers what impact may occur to actual members
of the species. In a section 7 context, it does not matter whether the
area in question was occupied at the time of listing or whether it was
occupied at a later time; the key question is whether the geographical
area is occupied at the time the section 7 consultation is conducted.
Therefore, because of current Federal land management practices, the
Service does not anticipate that designation of critical habitat would
result in consultations that would not otherwise take place for
jeopardy analysis in all designated critical habitat areas.
(185) Comment: The draft environmental assessment is inadequate
because it fails to consider reasonable alternatives submitted by the
public and provide reasons for eliminating these recommendations from
further study.
Our response: Although section 102 (C)(iii) of NEPA requires us to
consider alternatives to the proposed action, we are not required to
consider every possible alternative. Rather, we consider a reasonable
range of alternatives, which include those considered to be practical
and feasible from a technical standpoint. The environmental assessment
evaluates the environmental effects of three alternatives. These
alternatives include the no action alternative (no designation of
critical habitat), designation of critical habitat in all areas that
meet the definition of critical habitat, and designation of critical
habitat in all areas where the benefits of exclusion do not outweigh
the benefits of inclusion. We are required to consider the ``no
action'' alternative, and the two action alternatives are the only
feasible alternatives that we consider under NEPA while still meeting
our requirements under the Endangered Species Act. Therefore, the range
of alternatives we considered in the environmental assessment is
adequate under the procedural requirements of NEPA and the Council on
Environmental Quality's Regulations for Implementing the Procedural
Provisions of NEPA (40 CFR 1500-1518).
(186) Comment: The draft environmental assessment is inadequate
because it fails to meet the NEPA standard of balanced multiple use
management.
Our response: There is not a balanced multiple use management
standard under NEPA.
(187) Comment: The draft environmental assessment is inadequate
because it fails to analyze impacts on the human environment.
Our response: The draft environmental assessment does analyze
impacts to the human environment and is adequate. The primary purpose
of preparing an environmental assessment under NEPA is to determine
whether a proposed action would have significant impacts on the human
environment. If significant impacts may result from a proposed action,
then an environmental impact statement is required. Whether a proposed
action exceeds a threshold of significance is determined by analyzing
the context and the intensity of the proposed action (40 CFR 1508.27).
Context refers to the setting of the proposed action and potential
impacts of that action. The context of a significance determination may
be society as a whole (human, national), the affected region, the
affected interests, or the locality. Intensity refers to the severity
of the impacts. Under regulations of the Council of Environmental
Quality (CEQ), which is responsible for ensuring compliance with NEPA,
intensity is determined by considering 10 criteria (40 CFR 1508.27(b)).
See chapter 4 of the draft environmental assessment for a list of these
10 criteria. Based on the draft environmental assessment, the
designation of critical habitat for the jaguar will not have
significant impacts on the human environment.
(188) Comment: The draft environmental assessment is inadequate
because it fails to accurately classify recreational use of most
critical habitat.
Our response: In the environmental assessment we recognize that
recreational areas in the proposed critical habitat exist on tribal
lands (Tohono O'odham Nation); Federal and State-owned lands, including
Coronado National Forest, BLM lands, Buenos Aires National Wildlife
Refuge (NWR), Coronado National Memorial, and Arizona State lands.
Further, we identify several types of recreational activities that take
place in or near proposed critical habitat areas for the jaguar, such
as hiking, hunting, boating, swimming, birding, wildlife viewing,
photography, sight-seeing, pleasure-driving, angling, camping,
horseback riding, and off-highway vehicle use. Level of use and type of
activity vary by site characteristics, landownership, management
policy, and accessibility. The National Visitor Use Monitoring program
provides estimates of the volume and characteristics of recreation
visitation to the National Forest System. A National Forest Visit is
defined as the entry of one person upon a national forest to
participate in recreational activities for an unspecified period of
time. The most recent annual visitation data estimates 2,793 annual
visits to the Coronado National Forest (IEc 2013, p. 14).
The activity most likely to be impacted by the designation of
critical habitat is OHV use. OHV use is authorized on certain roads
that pass near proposed critical habitat in Coronado National Forest,
especially in units 2, 3, and 5. All of the Coronado National Forest
recreational areas are within or adjacent to units 2, 3, and 5. Most of
the proposed habitat segments

[[Page 12638]]

receive relatively low-level recreational use because of their
remoteness and/or difficult terrain. Many of these roads are used
primarily to access dispersed camping (IEc 2013, p. 14).
On the single NWR within proposed critical habitat (the Buenos
Aires NWR, in Pima County, Arizona), popular recreational activities
include camping, picnicking, mountain biking, horseback riding, hiking,
and backpacking. Motorized vehicles are restricted to roadways. Hunting
is permitted on approximately 90 percent of the refuge and is subject
to both Refuge and Arizona State Hunting Regulations. Recreational uses
in the NWR will likely increase with population growth in southern
Arizona and in light of the stated goal of the 2003 Comprehensive
Conservation Plan (CCP) to provide safe, accessible, high-quality
wildlife-dependent recreational opportunities.
On BLM land, Coronado National Forest, Fort Huachuca, and Buenos
Aires NWR, there could potentially be minor adverse impacts from
critical habitat designation on some recreational opportunities and
activities within designated critical habitat (e.g., OHV use) from the
limitations and restrictions imposed on recreational activities to
preserve PCEs. However, other recreational activities and opportunities
would be enhanced, and could benefit from critical habitat designation
(e.g., birdwatching, wildlife viewing, day hiking), because of
increased habitat conservation.
Because modifications to the PCEs of critical habitat are closely
tied to adverse effects to the species, current activities and
activities that would trigger consultation for critical habitat are
largely the same. Both the adverse and beneficial effects of critical
habitat designation on recreation-related activities are expected to be
minor because recreational use of most critical habitat areas is light
and (1) new consultations based solely on the presence of designated
critical habitat are unlikely, because land managers are already
consulting on jaguar throughout the proposed critical habitat areas;
and (2) the likelihood that reasonable and prudent alternatives
developed under the jeopardy standard would be changed substantially
with the addition of critical habitat designation and application of
the adverse modification standard is small. Additional information is
provided in the final environmental assessment section 3.11.
(189) Comment: The draft environmental assessment is inadequate
because it fails to evaluate significant economic impacts due to water
restrictions within the proposed designation of critical habitat.
Our response: In the context of an environmental assessment, the
evaluation of the impacts of critical habitat designation focuses on
outcomes of the potential increase in section 7 consultations resulting
from the designation, since the designation does not itself produce or
authorize direct physical impacts. A separate analysis was conducted by
Industrial Economics Incorporated (IEc 2013) to assess the potential
economic impacts associated with designation of critical habitat for
the jaguar. Where appropriate, information from the draft economic
analysis has been incorporated into the environmental assessment.
(190) Comment: The draft environmental assessment is inadequate
because it fails to evaluate the level of controversy if the Rosemont
Mine is constructed. The Service should complete a full environmental
impact statement because of the controversial nature of the proposed
action.
Our response: The environmental assessment evaluates impacts from
the designation of critical habitat, not the impacts of the mine. The
impacts from the designation of critical habitat for the jaguar are not
likely to be highly controversial because the quality of the
environment would not be significantly modified from current
conditions. This analysis was based on past consultations, past impacts
of jaguar conservation on activities within the jaguar recovery area,
and the likely future impacts from jaguar conservation. Past section 7
consultations within designated critical habitat would likely be re-
initiated. New activities could result in section 7 consultations. New
consultations in unoccupied jaguar territories could be triggered. A
number of activities, including wildland fire, fire management, and
recreation could have jaguar conservation-related constraints or
limitations imposed on them, although such measures would likely be the
same as those under jeopardy consultations for the species. Impacts to
water management and resource activities are not expected to be
controversial because, as discussed in the analysis of impacts on water
resources, the constraints on current water management activities are
expected to be limited.
The Service understands that, given the prior history of
designation, some level of controversy may result, especially if the
outcome of the Service's consultation on the Rosemont Copper Mine leads
to significant delays, re-evaluation, or termination of the project.
However, the Rosemont Copper Mine biological opinion has been
completed, and the Service determined that the mine would not result in
destruction or adverse modification of jaguar critical habitat.
(191) Comment: The Service should complete a full environmental
impact statement to be in compliance with the 10th Circuit decision.
Our response: The U.S. Court of Appeals for the Tenth Circuit
stipulates we undertake a NEPA analysis for critical habitat
designation and notify the public of the availability of the draft
environmental assessment for a proposal when it is finished. The
Service has complied with this requirement. See our response to comment
67 in Comments from the States under NEPA.
(192) Comment: The draft environmental assessment is inadequate
because it fails to evaluate safety to our children, people, livestock,
and pets.
Our response: The environmental assessment does evaluate safety.
Foreseeable activities with potential risks to public health and safety
include mining operations and activities related to fire management,
particularly in the wildlife-urban interface (WUI) areas and areas
where vegetation fuel loading has created conditions for catastrophic
fire. There would be no or negligible impacts to public health or
safety from the proposed designation of critical habitat. Impacts of
wildland fire on public health and safety were determined to be minor,
as wildland fire suppression and wildland fire management within WUI
areas would not be significantly impeded by the designation of critical
habitat. The designation would not create or lead to additional mining
operations, or the deposition of pollutants to the air or water. Border
enforcement activities would still be conducted within proposed
critical habitat, pursuant to section 102 of the Illegal Immigration
Reform and Immigrant Responsibility Act, under which the Secretary of
the 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.
(193) Comment: The draft environmental assessment is inadequate
because it fails to evaluate tribal customs and cultures, and economy.
Our response: This critical habitat designation is not likely to
affect sites, objects, or structures of historical, scientific, or
cultural significance. The proposed designation would not result in any
ground-disturbing activities that have the potential to affect
archeological or other cultural resources. There are

[[Page 12639]]

several National Register of Historic Places listed historical sites
within, or within close range of, critical habitat units, but they are
human-built structures, which the proposed designation specifically
avoids. Potential conservation measures or project modifications to
protect critical habitat PCEs would not modify or pose risk of harm to
any historic properties listed in or eligible for the NRHP.
(194) Comment: The Service should complete a full environmental
impact statement because the action significantly affects the quality
of the human environment.
Our response: Under the Council on Environmental Quality (CEQ)
regulations, 40 CFR 1508.27, the determination of ``significant''
impacts, for the purpose of determining whether a more detailed
environmental impact statement must be prepared, requires consideration
of both context and intensity. Potential impacts on environmental
resources, both beneficial and adverse, would be minor. Impacts of
critical habitat designation on natural resources within the areas to
be designated as jaguar habitat were analyzed and discussed in Chapter
3 of the draft environmental assessment. Applying the analysis of
impacts to the significance criteria defined in CEQ regulations, the
Service concludes that the adverse impacts of critical habitat
designation would not be significant.
(195) Comment: The Service should complete a full environmental
impact statement because the economic impacts on the local, state, and
national economies.
Our response: Indirect socioeconomic impacts faced by project
proponents, land managers, and landowners could include time delays,
regulatory uncertainty, and stigma. However, the environmental
assessment concludes that these are considered indirect, incremental
impacts of the designation. See Chapter 3, Section 3.10 for a complete
description of socioeconomics.
(196) Comment: The Service should complete a full environmental
impact statement because adverse impacts of the proposed designation
outweigh benefits.
Our response: The primary purpose of preparing an environmental
assessment under NEPA is to determine whether a proposed action would
have significant impacts on the human environment. The purpose of the
proposed action is to designate critical habitat for the jaguar, listed
as endangered under the Act. Critical habitat designation would have
long-term, beneficial, conservation-related impacts on jaguar survival
and recovery through maintenance of PCEs. Potential impacts to
environmental resources, both beneficial and adverse, would be minor or
moderate in all cases. Analyses of impacts of critical habitat
designation on sensitive resources within areas proposed as jaguar
critical habitat were conducted and discussed in Chapter 3 of the draft
environmental assessment, and it was concluded that designation of
critical habitat would have both adverse or beneficial impacts on those
resources. None of the specific resource or activity analyses found
that the adverse impacts of critical habitat designation would be
significant.
(197) Comment: The Service should complete a full environmental
impact statement because the degree of impacts on health and safety are
significant if Fort Huachuca is not exempted and if border security is
compromised.
Our response: The Service has exempted Fort Huachuca from critical
habitat designation based on their INRMP. See the Exemptions section of
this final rule for further information. Also, see our response to
comment number 72 in Comments from States.
(198) Comment: The Service should complete a full environmental
impact statement because impacts on the unique characteristics of the
area are significant if recreation is inhibited or completely curtailed
in portions of the proposed jaguar habitat.
Our response: There are no designated Wild and Scenic River
segments within the critical habitat designation. There are designated
Wilderness Areas within the units; activities proposed by the Federal
land managers in these areas would only be those specifically intended
to improve the health of these ecosystems, and thus they would be
anticipated to help recover or sustain the PCEs along these segments.
Therefore, any adverse impacts to critical habitat would be negligible
at most.
(199) Comment: The Service should complete a full environmental
impact statement because the proposed designation would impose unique,
unknown, and uncertain risks to current water users.
Our response: The impacts do not pose any uncertain, unique, or
unknown risks. Past section 7 consultations within proposed designated
critical habitat would likely be reinitiated. New activities in
unoccupied areas would result in section 7 consultations. Conservation
constraints or limitations related to proposed designated critical
habitat would be similar to those imposed from species-related
constraints.
(200) Comment: The Service should complete a full environmental
impact statement because the proposed action is related to other
actions, which cumulatively could produce significant impacts.
Our response: There would not be any significant cumulative impacts
because, as described above in Chapter 3 of the environmental
assessment, cumulative impacts would be limited to section 7
consultation outcomes and subsequent effects on other species, the
effects of designated critical habitat for other species, and the
effects of land management plans.
The CEQ regulations define cumulative effects as ``the impact on
the environment which results from the incremental impact of the
proposed action when added to other past, present, and reasonably
foreseeable future actions regardless of what agency (Federal or non-
Federal) or person undertakes such other actions'' (40 CFR 1508.7). In
the environmental assessment, we identify four other listed species
with critical habitat that overlaps with jaguar proposed critical
habitat. In the context of critical habitat, cumulative impacts could
be created if critical habitat designations for multiple species affect
the same natural and human resources. Actions that could have
cumulative impacts would include: (1) Section 7 consultation outcomes
and subsequent effects on other species; (2) the effects of designated
critical habitat for other species; and (3) the effects of land
management plans.
All of these units are already being included in consultations on
activities that may adversely impact jaguar, so there would be no new
consultations. However, while some of these areas may have undergone
some section 7 consultation for the jaguar, the fact they are now being
designated as critical habitat may require reevaluation of effects to
PCEs for ongoing or not yet completed Federal actions, which then may
require reinitiating consultation. This critical habitat designation
will likely contribute minor cumulative impacts, given the number and
nature of additional project modifications anticipated.
(201) Comment: The Service should complete a full environmental
impact statement because the proposed action might adversely affect an
endangered or threatened species or its habitat, as determined to be
critical under the Act, because fuel loads would build and catastrophic
fire potential would increase.
Our response: The designation of critical habitat for the jaguar
will not

[[Page 12640]]

result in fuel loads buildup. Fuel-management activities, either
mechanical treatments or prescribed burns, reduce the risks posed by
heavy fuels loads. They intend to restore the forest ecosystem by
reducing the risk of catastrophic wildland fire, lessening post-fire
damage, and limiting the spread of invasive species and diseases. These
activities would help maintain the jaguar PCE for greater than 1 to 50
percent canopy cover. Fuel-management and prescribed burning that are
discountable, insignificant, or wholly beneficial to the PCEs do not
require formal consultation; however, the action agency would need to
confirm their finding of no adverse impact to jaguar critical habitat
with the Service through informal consultation (Service 1998a). The
primary impact of the additional formal or informal consultations would
be increased administrative costs to the Service and action agencies.

Economics

(202) Comment: The proposed rule and the draft economic analysis
lack the actions that Federal land managers already implement to
protect jaguars in the United States.
Our response: The U.S. Bureau of Land Management (BLM), U.S. Forest
Service (USFS), U.S. National Park Service (NPS), and Service land
managers in proposed critical habitat areas already consider potential
impacts to jaguar when conducting activities within proposed critical
habitat areas. Chapter 3 of the draft economic analysis evaluates
potential economic impacts to Federal lands management, mining activity
is discussed in Chapter 5 of the analysis, border activities are
discussed in Chapter 4, and DOD lands are addressed in Chapter 8. In
support of these statements, since 1995 we have participated in 20
formal consultations on including the jaguar in Federal land management
activities, only 4 of which resulted in formal consultation on this
species. While Federal land managers have varying levels of
conservation for the jaguar, all take some conservation actions for
their lands based on the Federal Land Policy and Management Act of
1976, which states that ``. . . the public lands be managed in a manner
that will protect the quality of scientific, scenic, historical,
ecological, environmental, air and atmospheric, water resource, and
archeological values; that . . . will preserve and protect certain
public lands in their natural condition; (and) that will provide food
and habitat for fish and wildlife . . .''
(203) Comment: The draft economic analysis ignores real economic
costs by not quantifying additional conservation measures that could be
requested to avoid adverse modification during major construction
projects.
Our response: As described in section 5.2 of the draft economic
analysis, the types of conservation measures that could be requested
for major construction projects that may adversely modify or destroy
jaguar critical habitat include: creation of permeable highways; re-
vegetation and restoration of habitat; modification or elimination of
nighttime lighting; reduction of project footprint; minimization of
human presence, vehicles, and traffic; and permanent protection of
offsite habitat. The only two large-scale construction projects, the
Rosemont Mine and the Hermosa Project, are addressed in Chapter 5. The
final economic analysis has been revised based on the conclusions of
the recent biological opinion for the Rosemont Mine. At the low end,
the final economic analysis estimates costs associated with
implementation of requested conservation measures. The final economic
analysis also considers a second scenario in which Rosemont Mine
chooses not to proceed to production. Section 5.5.1 of the draft
economic analysis describes potential impacts of this scenario in terms
of lost economic revenue, tax revenue, and employment. These impacts
represent the high-end effects of foregone mine production.
(204) Comment: The draft economic analysis does not consider costs
of third-party litigation related to the finalization of the revised
proposed rule. The costs of litigation incurred by small ranchers may
be as much as $250,000 per case.
Our response: The Service does not consider the costs of litigation
surrounding the critical habitat rule itself when considering the
economic impacts of the rule. The extent to which litigation
specifically regarding critical habitat may add to the costs of the
designation is uncertain. While the critical habitat designation may
stimulate additional legal actions, data do not exist to reliably
estimate impacts. That is, estimating the number, scope, and timing of
potential legal challenges would require significant speculation.
(205) Comment: The economic impacts of critical habitat designation
will fall disproportionately on areas already under economic stress.
Specifically, the areas of concern include the City of Douglas,
Arizona; and Gila, Navajo, Greenlee, and Graham Counties in Arizona.
Our response: As described in Section 2.2 of the draft economic
analysis, at the guidance of OMB and in compliance with Executive Order
12866 ``Regulatory Planning and Review,'' the draft economic analysis
measures changes in economic efficiency in order to understand how
society, as a whole, will be affected by a regulatory action. However,
recognizing that distributive impacts may disproportionately affect
some areas, the draft economic analysis also considers impacts on small
entities; impacts on energy supply, distribution, and use; and regional
economic impacts. Substantial changes to the regional economies are not
expected for most industries within proposed critical habitat for the
jaguar. Where potential exists for regional economic impacts--for
example, if proposed mining operations do not proceed to production
because of critical habitat designation--these impacts are estimated.
In addition, the draft economic analysis provides information on the
geographic distribution of impacts by unit in order to allow the
Secretary to evaluate potential exclusions from critical habitat
designation.
(206) Comment: The jaguar is not present within Arizona, and, as
such, all economic impacts should be attributed to the designation of
critical habitat and not the listing of the species. The draft economic
analysis incorrectly characterizes costs that should be attributed to
the designation of critical habitat as costs that would occur in the
baseline due to the species' listing.
Our response: Due to the transient nature of the jaguar, land
managers may not implement conservation measures based solely on
whether the species occupies an area. Therefore, to assign costs to the
baseline or incremental scenarios in the draft economic analysis, we
contacted land managers within the proposed designation, including the
Bureau of Land Management (BLM), U.S. Forest Service (USFS), and U.S.
Customs and Border Protection (CBP), regarding possible changes to
their management approaches following the designation of critical
habitat. Where land managers already consider both the jaguar and its
habitat, we assumed that incremental conservation measures were
unlikely. For example, section 3.2.2 of the draft economic analysis
discusses that BLM already considers the potential presence of the
jaguar in all proposed critical units and subunits that fall within its
jurisdiction. Where land managers may implement different conservation
measures following the designation of critical habitat, we consider the
costs of those conservation measures to be incremental.
(207) Comment: The draft economic analysis fails to disclose that
Federal

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and State agencies have already spent over $1.2 billion on the jaguar.
Our response: The draft economic analysis focuses on estimating
future impacts of the designation of critical habitat, and does not
retrospectively quantify baseline costs of jaguar conservation efforts.
However, the draft economic analysis does provide information on
conservation efforts that have been implemented in the past or are
likely to be implemented in the future, absent the designation of
critical habitat. The draft economic analysis does quantify future
baseline impacts, which are forecast to be approximately $1.6 million
over the next 20 years.
(208) Comment: The draft economic analysis does not describe what
steps Federal land managers already take to protect the jaguar.
Our response: Conservation efforts that may benefit the jaguar and
its habitat and are likely to be implemented in the baseline are
described separately for each economic activity. Specifically, the
second section of each activity-specific chapter in the draft economic
analysis (e.g., section 3.2, section 4.2, etc.) discusses the types of
projects that may have a Federal nexus for consultation and provides
information on conservation efforts that have been implemented in the
past or are likely to be implemented in the future, absent the
designation of critical habitat.
(209) Comment: The draft economic analysis understates the
incremental costs of consultation for the Coronado National Forest
because the consultation forecast does not include travel management
planning. These costs are instead misattributed to the CBP.
Our response: As described in Chapter 4-2 of the draft economic
analysis, best management practices for CBP include designing access
roads to minimize animal collisions and fragmentation of threatened and
endangered populations. We expect that CBP operations will continue to
adopt these best management practices following the designation of
critical habitat. Additionally, as presented in section 3.4.1 of the
draft economic analysis, we use the jaguar consultation history for the
Coronado National Forest to forecast nine formal and nine informal
consultations over the next 20 years. We assume that any travel
management planning undertaken by the Coronado National Forest will be
included in this consultation forecast.
(210) Comment: Additional clarification of impacts to activities on
BLM lands is needed. Specifically, clarification of BLM's approach to
consideration of the jaguar, ``major'' projects that could be affected
by the designation, and impacts resulting from programmatic
consultation on grazing operations on BLM lands is needed.
Our response: In developing the economic analysis, we contacted
regional land managers at relevant Federal agencies, including BLM,
regarding the agencies' current approach to jaguar conservation. Given
the transient nature of the jaguar, BLM consults with the Service
throughout the range of the jaguar in proposed critical habitat areas
under its jurisdiction, including areas that may be unoccupied. BLM
indicated that consultations expected for the foreseeable future are
likely to relate to grazing activities. BLM did not implement any
substantial changes to conservation management as a result of the
agency's most recent programmatic consultation on livestock grazing
activities, which included consideration of the jaguar. As a result,
the agency does not anticipate future management changes following the
critical habitat designation. Clarifying text has been added to section
3.2.2 to address these questions.
(211) Comment: The draft economic analysis should address impacts
to hunting, fishing, and other recreational activities.
Our response: The draft economic analysis addresses potential
impacts to recreational activities in Chapter 3 as part of the
discussion of potential impacts to Federal land management. We do not
forecast substantial changes to recreational management. Recreational
activities that do not occur on Federal lands are unlikely to have a
Federal nexus for section 7 consultation and, therefore, would not be
affected by the designation of critical habitat.
(212) Comment: Clarification as to whether use of roads and hiking
trails will be affected by the designation of critical habitat for the
jaguar is needed. The discussion of potential conservation measures,
including road closures and limitations to public access, on page 4-1
of the draft economic analysis suggests that CBP jaguar conservation
efforts could affect hiking.
Our response: The discussion cited in this comment refers
specifically to CBP roads. The potential for impacts to recreational
activities is discussed in Chapter 3 of the draft economic analysis. As
discussed in section 3.4 of the draft economic analysis, the economic
analysis does not anticipate impacts to Federal land management
activities beyond administrative costs of consultation. As a result,
impacts to hiking are not anticipated.
(213) Comment: The analysis of impacts to the mining industry
relies on industry-commissioned reports that may reflect potential
bias. The draft economic analysis does not incorporate previous studies
of the economic impact of the Rosemont Mine, such as those prepared by
Dr. Thomas Michael Power in 2010 and 2012.
Our response: The draft economic analysis would estimate regional
economic impacts of changes to the mining industry by using peer-
reviewed, third-party studies if any were available. However, such
studies do not exist. At the time the draft economic analysis was
prepared, the best available data on the regional economic
contributions of the Rosemont Mine and the Hermosa Project came from
reports commissioned by the mining industry. Chapter 5 of the draft
economic analysis acknowledges this affiliation. The final economic
analysis has been revised to incorporate the information provided via
public comment.
(214) Comment: The draft economic analysis incorrectly uses
measures of gross economic activity as an indication of economic value
of the Rosemont Mine and the Hermosa Project. These measures do not
account for the costs associated with mining operations or the
probability that production will be displaced to other mine locations.
Alternative numbers from the same studies cited in the draft economic
analysis that may provide a more reasonable estimate of the economic
value of the mines should be used.
Our response: Chapter 5 of the draft economic analysis used
measures of the increase in economic activity, as estimated by existing
economic assessments conducted for the Rosemont Mine and the Hermosa
Project, to describe the upper bound on possible economic losses.
However, the commenter is correct that these values likely overstate
the true economic impact of the loss of production. As a result, the
final economic analysis has been revised to include the numbers
suggested by this commenter, along with text describing potential
caveats to these measures. The commenter is also correct that the true
regional economic impact would account for the opportunity cost of
producing at substitute mine locations. However, information on the
location of such substitute sites is not available, and as a result,
the draft economic analysis is not able to account for these costs. The
final economic analysis has been revised to clarify and expand the
discussion of potential impacts, as well as limitations of the
analysis.
(215) Comment: The draft economic analysis does not estimate
impacts

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associated with changes in the price of copper, silver, and manganese
that may result if mining projects are delayed or halted.
Our response: Substantial uncertainty exists regarding impacts of
the designation of critical habitat on large mining projects that could
sever connectivity to Mexico. For this reason, Chapter 5 considers two
scenarios. At the low end, we estimate costs associated with the
conservation measures requested in the recent biological opinion for
the Rosemont Mine. At the high end, we assume that the Rosemont Mine
and Hermosa Project will not proceed to production due to the high cost
of conservation measures requested to avoid adverse modification of
critical habitat. Although these scenarios result in incremental
economic impacts, costs would be incurred primarily at the local or
State levels. Although global mineral prices are not anticipated to be
affected by changes to production at these two mines, the potential
impact of changes to anticipated production at these mines is
acknowledged in the final economic analysis.
(216) Comment: The draft economic analysis fails to consider the
economic and national security impacts of critical habitat designation
on the maintenance and development of existing mining claims on Federal
lands, or those held by individuals and small entities.
Our response: To inform the analysis of economic impacts to mining
operations, the Service and USFS provided information on the historical
rate of consultation on mining activities as well as the number of
mining claims over the past year. Communication with USFS indicated
that small mining claims typically do not require section 7
consultation. However, Service records indicate that consultation has
occasionally occurred for mineral exploration, resulting in informal
consultation. Past conservation measures associated with these
activities have included changes to lighting design, as well as
recommended changes to the project footprint during the planning stage.
To be conservative, the draft economic analysis includes
incremental administrative costs for development and maintenance of
mining claims, although most small claims are not expected to require
consultation. Additional text has been added to the final economic
analysis to clarify that small mining claims typically do not require
consultation.
(217) Comment: The draft economic analysis does not address the
potential economic impacts of the designation of critical habitat on
manganese production at Wildcat Silver's Hermosa Project. The United
States currently imports 100 percent of its manganese.
Our response: Sections 5.4.2 and 5.5.2 of the draft economic
analysis forecast economic impacts of the designation of critical
habitat on the Hermosa Project. This analysis utilizes and reports the
estimated net present value of the Hermosa Project, accounting for
costs of production and tax responsibilities, as summarized in the
Hermosa Project Preliminary Economic Assessment. This assessment
incorporates potential future revenues associated with all production
at the Hermosa Project, including manganese production.
(218) Comment: The draft economic analysis fails to incorporate the
best available information on the extent of mining and mineral
resources within the proposed designation. Specifically, the proposed
designation spans an area with many established mining districts and
includes many patented and unpatented mining claims within the
Patagonia Mountains. The draft economic analysis did not contact BLM or
USFS for information on planned mining projects. The Service should
review the information on the Coronado National Forest's schedule of
proposed actions and source information for online databases of mining
claims, mineral surveys, and land records. The draft economic analysis
underestimates impacts to mining operations by not including such
actions in the analysis.
Our response: To inform the analysis of mineral extraction
activities in the draft economic analysis, we spoke with BLM and USFS
managers about the frequency and type of consultations associated with
mining activities. Section 5.3 of the draft economic analysis describes
the historical rate of consultation with USFS since the listing of the
species. The historical consultation rate for the jaguar does not
include any consultations with BLM on mining activity, and
communication with BLM did not identify any planned mining projects. As
a result, we use the historical rate of consultation on USFS lands to
forecast future impacts, as well as evaluating impacts separately for
the two large mining construction projects known to be planned within
critical habitat.
Communication with USFS indicated that small mining claims
typically do not require section 7 consultation. However, Service
records indicate that consultation has occasionally occurred for
mineral exploration, resulting in informal consultation. Past
conservation measures associated with these activities have included
changes to lighting design, as well as recommended changes to the
project footprint during the planning stage.
To be conservative, the draft economic analysis includes
incremental administrative costs for development and maintenance of
mining claims, although most small claims are not expected to require
consultation. Additional text has been added to the final economic
analysis to clarify that small mining claims typically do not require
consultation.
(219) Comment: The draft economic analysis of mining impacts does
not provide useful information because it notes that the probability
that incremental conservation measures will be requested ranges from
zero to 100 percent.
Our response: The final economic analysis has been revised based on
the conclusions of the recent biological opinion for the Rosemont Mine.
At the low end, the final economic analysis estimates costs associated
with implementation of requested conservation measures. Because of
concerns expressed previously by the mining companies, the final
economic analysis also considers a second scenario in which the mine
chooses not to proceed to production. The final economic analysis notes
that, based on the outcome of the section 7 consultation for the
Rosemont Mine, the second scenario is considered less likely to occur.
However, at the time the draft economic analysis was prepared, the
relative likelihood of the two scenarios could not be predicted, and
the Service presented a range of plausible impacts as the best
available information.
(220) Comment: The draft economic analysis treats tax revenues as
pure benefits to local, state, and Federal governments. The analysis
does not account for the related increase in demand for public services
that could result from new mining activity.
Our response: The commenter is correct that the net regional
economic impacts would account for increases in public expenditures
resulting from increases in mineral production due to increased demand
for public services. However, information on the potential magnitude of
such an increase in demand for public services is not available. The
final economic analysis has been revised to clarify and expand the
discussion of potential regional economic impacts, as well as
limitations of the analysis.
(221) Comment: The draft economic analysis presents regional
economic impacts associated with mining activity as comparable to
economic efficiency losses associated with increased

[[Page 12643]]

consultation. The regional economic impacts are a separate measure of
economic activity and cannot be added to economic efficiency losses.
Our response: Section 2.2 of the draft economic analysis describes
the distinction between efficiency effects and distributional effects.
It is correct that the draft economic analysis reported in Chapter 5,
as part of a scenario describing upper bound impacts related to mining
activities, regional economic impacts as potential impacts of the rule.
However, these were reported separately from efficiency effects.
Clarifying text has been added to the final economic analysis.
(222) Comment: The draft economic analysis does not consider the
value of alternative land uses at the Rosemont Mine site that could
affect the cost to society should mining not proceed.
Our response: It is correct that a more precise measure of
potential economic impacts to the area that is being considered for
Rosemont Mine would consider that, should the area not be mined, the
area could be used for other purposes, such as recreation, which would
offset to some degree regional impacts of not mining the area. However,
because of uncertainty of alternative future uses, the draft economic
analysis is not able to account for these opportunity costs. As such,
the reported potential societal costs of not mining may be less than is
reported in the upper bound scenario. The final economic analysis has
been revised to clarify and expand the discussion of potential regional
economic impacts, as well as limitations of the analysis.
(223) Comment: The draft economic analysis concludes that the
benefits of the Rosemont Mine dominate any potential costs, resulting
in a large cost to the region and the state if the mine does not
proceed. The draft economic analysis does not document the analysis
that led to that conclusion.
Our response: The draft economic analysis provides an estimate of
potential future costs of critical habitat designation. It does not
conclude that costs exceed benefits, nor does the analysis attempt to
weigh costs against benefits at all. Instead, the draft economic
analysis provides information on the likely magnitude of costs and the
types of ancillary benefits that may occur to inform the evaluation of
the designation by the Secretary of the Department of the Interior. As
discussed in Chapter 2, the Service believes that the direct benefits
of the proposed rule are best expressed in biological terms that can be
weighed against the expected cost impacts of the rulemaking. Chapter 5
of the draft economic analysis describes cost impacts associated with
the potential loss of mineral production at the Rosemont Mine, and
potential economic benefits are addressed separately in Chapter 11. The
final economic analysis has been revised to clarify that the loss of
potential employment and revenues associated with Rosemont Mine are not
net of potential benefits.
(224) Comment: The draft economic analysis fails to include any
costs associated with conservation measures for mining activities,
despite describing the potential for such costs to occur. Instead, the
draft economic analysis forecasts only a small amount of incremental
administrative costs. The information on the cost of conservation
measures is available in the preliminary economic assessment for the
Hermosa Project.
Our response: The final economic analysis has been revised to
incorporate available quantitative information on the Hermosa Project,
wherever possible. However, while the Preliminary Economic Assessment
for the Hermosa Project includes information on the breakdown of
capital and operating costs, it does not provide information specific
to jaguar conservation efforts. The cost estimates in the Preliminary
Economic Assessment are not provided to a level of detail that would
allow such estimation. For these reasons, the draft economic analysis
is not able to fully quantify costs of implementing conservation
measures that may be undertaken for the jaguar and its habitat at the
Rosemont Mine or the Hermosa Project using these data.
(225) Comment: The draft economic analysis refers to potential
impacts to large mining projects as being ``unquantified'' in the
conclusions for the analysis, despite providing quantified estimates
for these impacts elsewhere in the analysis.
Our response: The text of the final economic analysis has been
revised to clarify that potential impacts to mining projects are
quantified but not added to other impact estimates due to the high
level of uncertainty surrounding impact estimates. The final economic
analysis has also been revised to incorporate discussion of these
impacts into the report's conclusions.
(226) Comment: The draft economic analysis underestimates costs to
mining operations by ignoring economic impacts of conservation
measures. In particular, the draft economic analysis ignores the
expected economic contribution of the Rosemont Mine, as estimated in
the analysis by the L. William Seidman Research Institute cited in the
draft economic analysis, when quantifying costs associated with the
proposed designation.
Our response: The final economic analysis has been revised based on
the conclusions of the recent biological opinion for the Rosemont Mine.
At the low end, the final economic analysis estimates costs associated
with implementation of requested conservation measures. The final
economic analysis also considers a second scenario in which Rosemont
Mine chooses not to proceed to production. Section 5.5.1 of the draft
economic analysis describes potential impacts of this scenario in terms
of lost economic revenue, tax revenue, and employment, using the values
estimated in the analysis conducted by the L. William Seidman Research
Institute. These impacts represent the high-end effects of foregone
mine production.
(227) Comment: The draft economic analysis suggests that the
designation of critical habitat will result in economic benefits by
limiting mining activity. However, the draft economic analysis ignores
the benefits that mining projects, such as the Rosemont Mine, may
provide to local, state, and national economies.
Our response: Section 5.5.1 of the draft economic analysis
describes the potential economic impacts of a scenario in which the
Rosemont Mine is not able to proceed to production. To estimate these
costs, the draft economic analysis assumes that economic benefits of
the mine, including economic revenue, tax revenue, and employment,
would be foregone. Section 5.5.2 of the draft economic analysis
provides a similar description of foregone economic benefits for the
Hermosa Project. In these sections, the draft economic analysis
acknowledges that mining projects may provide benefits to local, state,
and national economies, and that these benefits may be lost if the
designation of critical habitat hinders production.
(228) Comment: The designation of critical habitat will lead to a
decrease in the value of privately owned land. The designation would
place restrictions on the landowner's ability to subdivide the land.
Additionally, entering into a conservation easement would decrease the
value of the land.
Our response: Section 2.3.2 of the draft economic analysis
discusses that public attitudes about the limits or restrictions that
critical habitat may impose can cause real economic effects to property
owners, regardless of whether such limits are actually imposed (stigma
effects). As the public becomes aware of the true regulatory burden
imposed by critical habitat, the

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impact of the designation on property markets may decrease. Thus, to
the extent that stigma impacts occur in the future, impacts are
expected to be temporary.
(229) Comment: The draft economic analysis underestimates the
number of consultations relating to grazing that will occur over the
analytic timeframe. Every Federal grazing permittee within the proposed
designation will be subject to reinitiated consultation and will have
to consult twice within the 20-year analytic timeframe, based on
typical timeframes for permit renewals. The draft economic analysis
should consider costs to individuals and local ranchers, in addition to
overall impacts. In particular, the draft economic analysis should
consider costs associated with consultations for new construction or
maintenance of range improvements on Federal grazing allotments.
Our response: As discussed in Section 3.4 of the draft economic
analysis, based on communication with BLM and USFS staff and the
agencies' consultation history, we assume that both BLM and USFS will
reinitiate programmatic consultations on livestock grazing activities.
These programmatic consultations will cover all Federal grazing
permittees collectively. The agencies do not anticipate undertaking
individual consultations with, or on behalf of, permittees.
(230) Comment: The designation of critical habitat may affect the
relationship between the Natural Resources Conservation Service (NRCS)
and ranchers. In particular, the designation of critical habitat may
lead to a reduction in NRCS participation within the proposed
designation, and could therefore result in regional economic and
environmental impacts.
Our response: Section 9.4.1 of the draft economic analysis
addresses the public concern that ranchers and farmers could withdraw
participation in Federal programs, such as those implemented by NRCS,
in order to avoid a potential Federal nexus for consultation generated
by receipt of Federal funding. However, as described in the draft
economic analysis, the designation of critical habitat for other
species in the region has not led to such withdrawals, in the
experience of NRCS. As a result, the draft economic analysis does not
forecast economic impacts associated with withdrawals from Federal
conservation programs due to the designation of critical habitat.
(231) Comment: One paragraph in the draft economic analysis implies
that private landowners consult directly with the Service. It should be
clarified that Federal agencies, such as NRCS, BLM, or the Bureau of
Reclamation, consult with the Service.
Our response: The text of the final economic analysis has been
revised to clarify that NRCS, and not individual landowners, would
consult with the Service. Individual landowners may, in some cases,
participate in section 7 consultation as third parties.
(232) Comment: The draft economic analysis should consider economic
impacts related to precluding, delaying, or requiring mitigation for
the construction of the previously proposed Sierrita natural gas
pipeline, which is expected to cross jaguar critical habitat.
Our response: As described in section 9.1 of the draft economic
analysis, the installation of natural gas pipelines may occur in
proposed critical habitat areas. In addition, as described in chapter 3
of the draft economic analysis, BLM consulted on a pipeline project in
2006. We use historic rates of consultation to forecast future costs
associated with both miscellaneous activities and projects on BLM
lands. In this manner, we incorporate the possibility that a future
consultation on the Sierrita natural gas pipeline may occur. Currently,
sufficient information on the project scope and location is not
available to forecast potential conservation measures for this
pipeline. A brief discussion of this potential project has been added
to the final economic analysis.
(233) Comment: The draft economic analysis should address the
impacts of multiple species management, especially with regard to
reductions in cattle grazing on USFS lands. Such livestock reductions
may be attributed to the conservation of numerous listed species,
including the jaguar.
Our response: Past actions related to consultations on grazing
activities related to other species have affected grazing opportunities
in some areas. However, as discussed in Chapter 3 of the draft economic
analysis, no changes to grazing on Federal lands are expected as a
result of the designation of critical habitat for the jaguar in either
the baseline or incremental scenario.
(234) Comment: The Service should include additional information on
impacts to small businesses, such as information on the percentage of
farmers and ranchers in Arizona and New Mexico that are considered
small businesses and that are owned by women, and the impact the
designation would have on these businesses.
Our response: As described in section A.1.2 of Appendix A, small
entities are generally not directly involved in the consultation
process between NRCS or U.S. Department of Agriculture (USDA) and the
Service. As a result, impacts to small ranchers are not expected.
(235) Comment: The Service should include a reference for a
statement in the draft economic analysis that describes the review
process for range improvement projects carried out by the Arizona State
Land Department (ASLD). The draft economic analysis states that this
review is conducted by the Arizona Game and Fish Department (AGFD).
Our response: As cited in the draft economic analysis, the
statement references personal communication with the Arizona State Land
Department (ASLD) regarding typical project review.
(236) Comment: The draft economic analysis should quantify direct
and indirect economic benefits of the designation of critical habitat.
In particular, the analysis should note the potential for educational,
recreational, and eco-tourism benefits.
Our response: The primary purpose of critical habitat designation
is to support the conservation of the jaguar. Rather than rely on
economic measures, the Service believes that the direct benefits of the
proposed rule are best expressed in biological terms that can be
weighed against the expected cost impacts of the rulemaking. As
described in Chapter 11 of the draft economic analysis, quantification
and monetization of this conservation benefit requires information on
the incremental change in the probability of conservation resulting
from the designation. Such information is not available, and as a
result, monetization of the primary benefit of critical habitat
designation is not possible. However, Chapter 11 of the draft economic
analysis provides a qualitative description of the potential categories
of direct and ancillary benefits that may result from the designation.
The benefits described in Chapter 11 include those mentioned in public
comments, such as use values (e.g., wildlife viewing or eco-tourism),
non-use values (e.g., existence value), aesthetic benefits, educational
benefits, and property value benefits. This chapter also identifies the
critical habitat units where such benefits are likely to occur.

Required Determinations

In our August 20, 2012, proposed rule (77 FR 50214), we indicated
that we would defer our determination of compliance with several
statutes and executive orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the draft economic
analysis. We have now made use of the draft economic analysis data to
make these

[[Page 12645]]

determinations. In this document, we affirm the information in our
proposed rule concerning Executive Orders (E.O.s) 12866 and 13563
(Regulatory Planning and Review), E.O. 13132 (Federalism), E.O. 12988
(Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and
Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), and the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). However,
based on the draft economic analysis data and draft environmental
assessment, we are amending our required determinations concerning the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), and E.O. 12630
(Takings). In addition, we are amending our required determinations
concerning the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59
FR 22951).

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
significant because it will raise novel legal or policy issues.
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
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must 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
an 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. In this final rule, we are certifying that the critical
habitat designation for jaguar will not have a significant economic
impact on a substantial number of small entities. The following
discussion explains our rationale.
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; as well as small businesses (13 CFR 121.201). Small
businesses include 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 agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts on these small entities are significant, we consider the types
of activities that might trigger regulatory impacts under this rule, as
well as the 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.
The Service's current understanding of recent case law is that
Federal agencies are required to evaluate the potential impacts of
rulemaking only on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species has a regulatory effect
only where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts if sufficient data are available, whether or not this
analysis is believed by the Service to be strictly required by the RFA.
In other words, while the effects analysis required under the RFA is
limited to entities directly regulated by the rulemaking, the effects
analysis under the Act, consistent with the EO regulatory analysis
requirements, can take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable.
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 will only directly regulate Federal
agencies, which are not by definition small business entities. And 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 final economic analysis for this rule we
considered and evaluated the potential effects to third parties that
may be involved with consultations with Federal action agencies related
to this action.
Designation of critical habitat only affects activities authorized,
funded, or

[[Page 12646]]

carried out by Federal agencies. Some kinds of activities are unlikely
to have any Federal involvement and so will not be affected by critical
habitat designation. In areas where the species is present, Federal
agencies already are required to consult with us under section 7 of the
Act on activities they authorize, fund, or carry out that may affect
the jaguar. Federal agencies also must consult with us if their
activities may affect critical habitat. Designation of critical
habitat, therefore, could result in an additional economic impact on
small entities due to the requirement to reinitiate consultation for
ongoing Federal activities (see Determinations of Adverse Effects and
Application of the ``Adverse Modification'' Standard section, above).
In our final economic analysis of the critical habitat designation,
we evaluated the potential economic effects on small business entities
resulting from conservation actions related to the listing of the
jaguar and the designation of critical habitat. The analysis is based
on the estimated impacts associated with the rulemaking as described in
Chapters 2 through 10 and Appendix A of the analysis and evaluates the
potential for economic impacts related to: (1) Federal land management;
(2) border protection activities; (3) mining; (4) transportation
activities; (5) development; (6) military activities; (7) livestock
grazing and other activities; and (8) Tohono O'odham Nation activities.
To determine if the designation of critical habitat for the jaguar
would affect a substantial number of small entities, we considered the
number of small entities affected within particular types of economic
activities, such as mining, transportation construction, development,
and agriculture and grazing. In order to determine whether it is
appropriate for our agency to certify that this rule would not have a
significant economic impact on a substantial number of small entities,
we considered each industry or category individually. In estimating the
numbers of small entities potentially affected, we also considered
whether their activities have any Federal involvement. Critical habitat
designation will not affect activities that do not have any Federal
involvement; designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies.
Because the jaguar is already listed as an endangered species under the
Act, in areas where the jaguar is present, Federal agencies are
required to consult with us under section 7 of the Act on activities
they fund, permit, or implement that may affect the species.
Consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
In the final economic analysis, we evaluated the potential economic
effects on small entities resulting from implementation of conservation
actions related to the designation of critical habitat for the jaguar.
The designation of critical habitat for the jaguar is unlikely to
directly affect any small entities. The costs associated with the
designation are likely to be limited to the incremental impacts
associated with administrative costs of section 7 consultations. Small
entities may participate in section 7 consultation as a third party
(the primary consulting parties being the Service and the Federal
action agency). It is therefore possible that the small entities may
spend additional time considering critical habitat due to the need for
a section 7 consultation for the jaguar. We do not expect critical
habitat designation to result in impacts to small entities for the
following activities: forest management, border protection, and
military activities (as they do not involve third parties, only Federal
and State agencies); and development, recreation, and utility
construction (as we do not forecast any impacts to these activities).
Additionally, Chapter 10 of the final economic analysis details the
potential incremental impacts of critical habitat designation on tribes
with lands overlapping the designation. Tribes are generally not
subject to review under the RFA/SBREFA. For example, in its guidance on
preparing analyses in compliance with the RFA/SBREFA, the Environmental
Protection Agency states that, for the purposes of the RFA, States and
tribal governments are not considered small governments but rather as
independent sovereigns.
Estimated incremental costs that may be borne by small entities
consist of administrative impacts of section 7 consultation related to
mining, transportation construction, and agriculture and grazing. These
potential impacts are described in greater detail below. It is
uncertain whether any third parties involved with mining or
transportation would be considered small entities when fully
operational; however, assuming that they would qualify as small
entities, the cost of consultation represents less than 1 percent of
each company's annual revenues. Potential impacts to agriculture and
grazing related to foregone Natural Resources Conservation Service
(NRCS) funding are not quantified; however, we do not expect small
entities to bear a direct burden. Please refer to the final economic
analysis of the critical habitat designation for a more detailed
discussion of potential economic impacts.
Mining
Chapter 5 of the final economic analysis describes potential
impacts arising from three known formal consultations on mining: the
Rosemont Mine, the Hermosa Project, and the Coronado National Forest
Land and Resource Management Plan. According to the Small Business
Administration, to be considered a small entity in this industry,
companies must employ fewer than 500 people (13 CFR 121.201). The
Coronado National Forest is a Federal entity and is not considered
small.
As of 2011, Augusta Resource Corporation, which is the parent
company of Rosemont Mine, employed a total of 56 people throughout
Canada and the United States. Rosemont Mine anticipates employing up to
494 people directly at the Rosemont Mine. It is therefore unlikely
that, following construction of the Rosemont Mine, Augusta Resource
Corporation will employ fewer than 500 people.
It is uncertain whether Wildcat Silver will employ more than 500
workers during the operation of the Hermosa Project. Therefore, we
conservatively assume that Wildcat Silver is a small entity. The cost
of consultation for Wildcat Silver is approximately $875. Although
Wildcat Silver is considered to be an exploration stage enterprise and
has yet to generate revenue from its operations, this cost is unlikely
to be a significant burden on the company, as its assets exceeded $60
million and it had more than $3 million in cash and cash equivalents as
of September 30, 2012.
Additionally, in Chapter 5 of the final economic analysis, we
discuss the potential for jaguar critical habitat to affect other
mineral mining operations. While incremental project modification
impacts are not forecast for these activities over 20 years,
administrative costs related to 2.5 forecasted informal consultations
on mining exploration may involve small entities as third-party project
proponents. It is uncertain whether third parties involved in these
mining consultations will be small; however, we conservatively assume
that each forecast consultation on mining will involve a small entity.
The cost of consultation is approximately $875. This cost likely
represents less than one percent of annual revenues for mining
companies.

[[Page 12647]]

Transportation Construction
In the final economic analysis, we forecast consultations on these
activities, as discussed in Chapter 6. These consultations will likely
not involve third parties, as transportation consultations typically
require only administrative effort on the part of State departments of
transportation and the Service. However, we conservatively assume that
all consultations will involve a small third party. We forecast two
formal consultations and seven technical assistance consultations on
such projects that may involve small entities within the study area.
Assuming that all transportation potential impacts are borne by nine
small private entities, this amounts to less than one consultation per
year. The per-entity impact, ranging from approximately $875 to $7,875,
represents less than one percent of annual revenues.
Agriculture and Grazing
In the final economic analysis, we forecast consultations on these
activities, as discussed in Chapter 9. In this analysis, we discuss
potential impacts related to foregone NRCS funding, but do not quantify
these impacts. While up to six separate small entities could be
affected based on past rates of NRCS funding near critical habitat, we
do not expect these entities to bear a direct burden. Additionally, the
possibility exists for administrative impacts to occur in association
with two formal and three informal forecast consultations on
agriculture and grazing projects that may involve small entities within
the study area. However, small entities are likely not directly
involved in the consultation process between NRCS or U.S. Department of
Agriculture with the Service.
Table 5 presents the results of the final economic analysis. It
provides the relevant small entity thresholds by North American
Industry Classification System (NAICS) code, the total number of
entities and small entities, and the estimated incremental impacts as a
percentage of annual revenues.

Table 5--Summary of Potential Impacts on Small Entities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
affected
small Impacts as
Industry (NAICS Small entity size Total Number of entities Incremental economic percent of
Activity codes) standard (millions number of small \1\ impacts to small annual
of dollars) entities entities (percent of businesses \2\ revenues
total small \3\
entities)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transportation.................... Highway, Street and 33.5................ 120 110 9 (7%) $875 to $7,875 \4\.. 0.09
Bridge Construction
(237310).
Other Heavy and 33.5................ 30 28
Civil Engineering
Construction
(237990).
Agriculture and Grazing........... Beef Cattle Ranching 0.75................ 80 74 0 (0%) $0 per entity \5\... 0
and Farming
(112111).
Cotton Farming 0.75................ 3 1
(115111).
Mining............................ Iron Ore Mining 500 employees....... 0 0 4 (13%) $875 to $3,500 \6\.. ...........
(212210).
Gold Ore Mining 500 employees....... 6 6
(212221).
Silver Ore Mining 500 employees....... 1 1
(212222).
Lead Ore and Zinc 500 employees....... 6 6
Ore Mining (212231).
Copper Ore and 500 employees....... 33 8
Nickel Ore Mining
(212234).
Uranium-Radium- 500 employees....... 0 0
Vanadium Ore Mining
(212291).
All Other Metal Ore 500 employees....... 0 0
Mining (212299).
Support Activities 7................... 9 8
for Metal Mining
(213114).
Support Activities 7................... 3 3
for Nonmetallic
Minerals, except
fuels (213115).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. To estimate the number of affected small entities, this analysis assumes one small entity per forecast section 7 consultation. For agriculture and
grazing, this assumes one small entity per NRCS funding instance.
2. For these activities, we conservatively estimate that all administrative costs of consultation will be incurred by a small entity in a single year.
Therefore, we use the total, undiscounted third party incremental costs of a formal consultation.

[[Page 12648]]

3. Annual revenues are estimated using Risk Management Association (RMA), Annual Statement Studies: Financial Ratio Benchmarks 2012 to 2013, 2012. For
each NAICS code, RMA provides the net sales and the number of entities falling within several sales categories: $0 to $1 million, $1 to 3 million, $3
to $5 million, $5 to 10 million, or $10 to $25 million. Based on the number of entities and total net sales falling within each sales category, we
developed an estimate of the weighted average net sales (revenues) per small entity: for transportation-related firms, annual revenues were estimated
to be approximately $8.6 million; for companies involved in agriculture and grazing, revenues are estimated at $430,000 annually; for mining firms,
annual revenue information was not available, but due to the highly capitalized nature of the mining industry, mining firms are assumed to have high
annual revenues such that per-entity impacts of $2,625 resulting from the designation of critical habitat are likely to be insignificant.
4. We are uncertain in what year consultations and technical assistance requests on transportation activities will occur over the next 20 years. For the
purposes of this analysis, we assume affected small entities will participate in approximately nine consultations or technical assistance requests
over 20 years, or less than one consultation per year. However, if we assume that a single small entity participates in multiple formal consultations
in a single year, the administrative costs of such activity are still likely to be less than one percent of annual tax revenues (e.g., nine
consultations x $875/$9,000,000 = 0.09 percent of annual revenues).
5. Potential impacts related to NRCS funding are not quantified.
6. We are uncertain in what year consultations on mining will occur over the next 20 years. For the purposes of this analysis, we assume affected small
entities will participate in approximately 4 consultations over 20 years, one of which will be associated with the Hermosa Project and will involve
Wildcat Silver Corporation. However, if we assume that a single small entity participates in multiple consultations in a single year, the
administrative costs of such activity are still likely to be less than one percent of annual revenues. Although data on annual revenues for mining
companies were unavailable, due to the highly capitalized nature of the mining industry, companies involved in mining operations are likely to produce
revenues large enough that the cost of undertaking three consultations in a single year would likely be less than one percent of annual revenues
(e.g., four consultations x $875 = $3,500. $3,500 represents one percent of annual revenues of $350,000. Mining companies are likely to produce
revenues of greater than $350,000 annually).
Source: Dialog search of File 516, Dun and Bradstreet, ``Duns Market Identifiers,'' on January 3, 2013.

In summary, we considered whether this designation would result in
a significant economic effect on a substantial number of small
entities. Based on the above reasoning and currently available
information, we concluded that this rule would not result in a
significant economic impact on a substantial number of small entities.
Therefore, we are certifying that the designation of critical habitat
for jaguar will not have a significant economic impact on a substantial
number of small entities, and a regulatory flexibility analysis is not
required.

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. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration.
The economic analysis finds that none of these criteria are
relevant to this analysis. Thus, based on information in the economic
analysis, energy-related impacts associated with jaguar conservation
activities within critical habitat are not expected. As such, the
designation of critical habitat is not expected 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.

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 will 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, 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 will significantly or uniquely
affect small governments because it would not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The final economic analysis concludes incremental impacts may
occur due to (1) the administrative costs of conducting section 7
consultation; and (2) implementation of any conservation efforts
requested by the Service through section 7 consultation to avoid
potential destruction or adverse modification of critical habitat;
however, these are not expected to

[[Page 12649]]

significantly affect small governments. Incremental impacts stemming
from various species conservation and development control activities
are expected to be borne by the Federal Government, State agencies,
with some effects to mining and transportation, which are not
considered small governments. By definition, Federal agencies are not
considered small entities, although the activities they fund or permit
may be proposed or carried out by small entities. Consequently, we do
not believe that the critical habitat designation will significantly or
uniquely affect small government entities. As such, a Small Government
Agency Plan is not required.

Takings--Executive Order 12630

In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for jaguar in a takings implications assessment. The
economic analysis found that no significant economic impacts are likely
to result from the designation of critical habitat for the jaguar.
Based on information contained in the economic analysis and described
within this document, it is not likely that economic impacts to a
property owner would be of a sufficient magnitude to support a takings
action. Therefore, the takings implications assessment concludes that
this designation of critical habitat for the jaguar does not pose
significant takings implications for lands within or affected by the
designation.

Federalism--Executive Order 13132

In accordance with E.O. 13132 (Federalism), this final rule does
not have significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of this critical habitat designation with, appropriate
State resource agencies in New Mexico and Arizona. We received comments
from the New Mexico Department of Game and Fish and the Arizona Game
and Fish Department and have addressed them in the Summary of Comments
and Recommendations section of the rule. From a federalism perspective,
the designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical or biological
features of the habitat 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
these local governments in long-range planning (because these local
governments no longer have to 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 applicable
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are
designating critical habitat in accordance with the provisions of the
Act. To assist the public in understanding the habitat needs of the
species, the rule identifies the elements of physical or biological
features essential to the conservation of the jaguar. The designated
areas of critical habitat are presented on maps, and the rule provides
several options for the interested public to obtain more detailed
location information, if desired.

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 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 the 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 undertake a NEPA analysis for critical habitat
designation and notify the public of the availability of the draft
environmental assessment for a proposal when it is finished.
We performed the NEPA analysis, and a draft of the environmental
assessment was available for public comment in the Federal Register on
July 1, 2013 (78 FR 39237). We also accepted public comments on the
draft environmental assessment and made revisions in response to many
of those comments (see Summary of Comments and Recommendations above).
The final environmental assessment has been completed and is available
for review with the publication of this final rule. You may obtain a
copy of the final environmental assessment online at http://www.regulations.gov, by mail from the Arizona Ecological Services Fish
and Wildlife Office (see ADDRESSES), or by visiting our Web site at
http://www.fws.gov/southwest/es/arizona/Jaguar.htm.
We analyzed the potential impacts of critical habitat designation
on the following resources and resource management types: Land use and
management; fish, wildlife, and plants (including endangered and
threatened species); fire management; water resources (including water
management projects and groundwater pumping); livestock grazing;
construction and development (including roads, bridges, dams,
infrastructure, residential); tribal trust resources; soils; recreation
and

[[Page 12650]]

hunting; socioeconomics; environmental justice; mining and minerals
extraction; and National security. We found that the designation of
critical habitat for the jaguar would not have direct impacts on the
environment as designation is not expected to impose land use
restrictions or prohibit land use activities. However, the designation
of critical habitat could: (1) Increase the number of additional
section 7 consultations for proposed projects within designated
critical habitat; (2) trigger new consultations in unoccupied areas;
(3) increase the number of reinitiated section 7 consultations for
ongoing projects within designated critical habitat; (4) maintain the
jaguar's PCEs; (5) increase the likelihood of greater expenditures of
time and Federal funds to develop measures to prevent both adverse
effects to the species and adverse modification to critical habitat;
and (6) indirectly increase the likelihood of greater expenditure of
non-Federal funds by project proponents to complete section 7
consultations and to develop reasonable and prudent alternatives (to
avoid adverse modification or destruction of critical habitat by
Federal agencies) that maintain critical habitat. Such an increase
might occur where there is a Federal nexus to actions within areas with
no known jaguar territories, or from the addition of adverse
modification analyses to jeopardy consultations in known jaguar
habitat.
The primary purpose of preparing an environmental assessment under
NEPA is to determine whether a proposed action would have significant
impacts on the human environment. If significant impacts may result
from a proposed action, then an environmental impact statement is
required (40 CFR 1502.3). Whether a proposed action exceeds a threshold
of significance is determined by analyzing the context and the
intensity of the proposed action (40 CFR 1508.27). Our environmental
assessment found that the impacts of the proposed critical habitat
designation would be minor and not rise to a significant level, so
preparation of an environmental impact statement is not required.

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.
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.
Potentially affected Tribes include: The Ak Chin Community, Gila River
Indian Community, Hope Tribe, Pascua Yaqui Tribe, Salt River Pima
Maricopa Indian Tribe, San Carlos Apache Tribe, Tohono O'odham Tribe,
and White Mountain Apache Tribe. The Tohono O'odham Nation is the only
tribe with tribal lands within designated critical habitat. We have
conducted government-to-government consultation with these tribes
throughout the public comment period and during development of the
final designation of jaguar critical habitat.
On May 16, 2012, we sent a letter to the Tohono O'odham Nation (the
one Tribe that owns and manages land within the proposed designation)
and Bureau of Indian Affairs notifying them of our intent to propose
critical habitat for the jaguar and describing the exclusion process
under section 4(b)(2) of the Act. On August 24, 2012, we notified all
tribes potentially affected by our proposal to designate jaguar
critical habitat via email, then followed up by sending a letter to
each tribal leader on September 28, 2012. We engaged in conversations
with the Tohono O'odham Nation about the proposal to the extent
possible without disclosing pre-decisional information. On September
27, 2012, we met with Tohono O'odham Nation staff to discuss the
proposed designation. On August 30, 2013, we notified all tribes
potentially affected by our revised proposal to designate jaguar
critical habitat via email that we reopened the comment period on the
revised proposed rule, draft economic analysis, and draft environmental
assessment, then followed up by sending a letter to each tribal leader
on September 3, 2013. In addition, the Tohono O'odham Nation 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 considered these tribal areas for exclusion from the final
critical habitat designation to the extent consistent with the
requirements of section 4(b)(2) of the Act, and subsequently, excluded
all tribal lands from this final designation.

References Cited

A complete list of all references cited 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 rulemaking 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.

Regulation Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless
otherwise noted.

0
2. Amend Sec. 17.11(h) by revising the entry for ``Jaguar (Panthera
onca)'' under ``Mammals'' in the List of Endangered and Threatened
Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

[[Page 12651]]

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
---------------------------------------------------------- Historic range where endangered or Status When Critical Special
Common name Scientific name threatened listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. In Sec. 17.95, amend paragraph (a) by adding an entry for ``Jaguar
(Panthera onca)'', in the same 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 100 km\2\ (32 to 38.6 mi\2\) 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 greater than 1 to 50 percent canopy cover within
Madrean evergreen woodland, generally recognized by a mixture of oak
(Quercus spp.), juniper (Juniperus spp.), and pine (Pinus spp.) 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;
(vi) Are below 2,000 m (6,562 feet) in elevation; and
(vii) Are characterized by minimal to no human population density,
no major roads, or no stable nighttime lighting over any 1-km\2\ (0.4-
mi\2\) 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
April 4, 2014.
(4) Critical habitat map units. Data layers defining map units were
created using hydrography data, vegetation biomes, tree cover, terrain
ruggedness, elevation, Human Influence Index, and undisputed Class I
jaguar records from 1962 to September 11, 2013, and were then mapped
using Universal Transverse Mercator (UTM) coordinates.
(5) Note: Index map follows:
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[[Page 12652]]

[GRAPHIC] [TIFF OMITTED] TR05MR14.002

(6) Units 1, 2, 3, and 4: Baboquivari, Atascosa, Patagonia, and
Whetstone Units, Pima, Santa Cruz, and Cochise Counties, Arizona. Map
of Units 1, 2, 3, and 4 follows:

[[Page 12653]]

[GRAPHIC] [TIFF OMITTED] TR05MR14.003

(7) Units 5 and 6: Peloncillo and San Luis Units, Cochise County,
Arizona, and Hidalgo County, New Mexico. Map of Units 5 and 6 follows:

[[Page 12654]]

[GRAPHIC] [TIFF OMITTED] TR05MR14.004

* * * * *

Dated: January 29, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-03485 Filed 3-4-14; 8:45 am]
BILLING CODE 4310-55-C