[Federal Register: January 13, 2010 (Volume 75, Number 8)]
[Proposed Rules]
[Page 1741-1744]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13ja10-21]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2009-0091; BFY2009-92210-1117-0000-B2]
Endangered and Threatened Wildlife and Plants; Determination That
Designation of Critical Habitat is Prudent for the Jaguar
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of determination.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), under the
Endangered Species Act of 1973, as amended (Act), have reconsidered our
prudency determination concerning the designation of critical habitat
for the jaguar (Panthera onca) and now find that designation of
critical habitat is prudent. We are preparing a proposed designation of
critical habitat for the jaguar in accordance with the Act this fiscal
year and anticipate we will publish a proposed designation in January
2011.
DATES: To be considered in the proposed critical habitat designation,
comments and information should be submitted to us by March 15, 2010.
ADDRESSES: You may submit comments by one of the following methods:
Electronically: Go to the Federal eRulemaking Portal:
http://www.regulations.gov. In the Keyword box, enter Docket No. [FWS-
R2-ES-2009-0091], which is the docket number for this rulemaking. Then,
in the Search panel on the left side of the screen, under the Document
Type heading, click on the Proposed Rules link to locate this document.
You may submit a comment by clicking on ``Send a Comment or
Submission.''
By hard copy: Submit by U.S. mail or hand-delivery to:
Public Comments Processing, Attn: FWS-R2-ES-2009-0091; Division of
Policy and Directives Management; U.S. Fish and Wildlife Service; 4401
N. Fairfax Drive, Suite 222; Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comment Procedures and Public Availability of Comments
under SUPPLEMENTARY INFORMATION for more information).
FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor,
Arizona Ecological Services Office, 2321 West Royal Palm Road, Suite
103, Phoenix, AZ 85021-4951; telephone (602) 242-0210; facsimile (602)
242-2513. If you use a telecommunications device for the deaf (TDD),
call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
The jaguar, a large member of the cat family (Felidae), is an
endangered species that currently occurs from southern Arizona and New
Mexico to southern South America. Jaguars in the United States are part
of a population, or populations, that occur in Mexico. Below we present
a summary of relevant information we used in making our determination
that designating critical habitat in the United States for the jaguar
is prudent. For more information regarding all aspects of the jaguar,
refer to documents posted on our jaguar webpage (http://www.fws.gov/
southwest/es/arizona/Jaguar.htm), and Jaguar Conservation Team
documents and notes (www.azgfd.gov/w_c/es/
[[Page 1742]]
jaguar_management.shtml), and the literature cited there.
Jaguars in the United States historically occurred in California,
Arizona, New Mexico, Texas, and possibly Louisiana (62 FR 39147; July
22, 1997). The last confirmed jaguar sightings in California, Texas,
and Louisiana were in the late 1800s or early 1900s. While jaguars have
been documented as far north as the Grand Canyon, sightings in the
United States from 1996 to the present have occurred mainly within
approximately 40 miles (mi) (64.4 kilometers (km)) of the international
boundary of the United States and Mexico. Based on documented sightings
in the late 20th century, occurrences in the United States at the time
of the July 22, 1997, listing (62 FR 39147) were limited to
southeastern Arizona and southwestern New Mexico.
Recently (1996 through 2009), four or possibly five jaguars have
been documented in the United States (McCain and Childs 2008, p. 5;
Service files). Of those, two jaguars were photographed in the United
States in 1996: one on March 7 in the Peloncillo Mountains, located
along the Arizona--New Mexico border (Glenn 1996; Brown and Lopez
Gonzalez 2001, p. 6), and another on August 31 in the Baboquivari
Mountains in southern Arizona (Childs 1998, p. 7; Brown and Lopez
Gonzalez 2001, p. 6). In February 2006, a third jaguar was observed and
photographed in Hidalgo County, New Mexico. Using camera traps, jaguars
were photographed in the United States near the Arizona--Mexico border
beginning in 2001, and as recently as February 2009. This survey effort
resulted in the detection of the male jaguar originally observed in the
Baboquivari Mountains in 1996 referred to above; and possibly a fifth
jaguar that was unidentified and not determined as to sex. No females
or kittens were detected as a result of this monitoring effort.
Monitoring of jaguars with the use of camera traps in the United States
has been geographically limited in scope (from the crest of the
Baboquivari Mountains east to the San Rafael Valley and approximately
50 mi (80 km) north of the international boundary) (McCain and Childs
2008, p. 5). Therefore, we cannot make conclusions regarding the
presence of other jaguars, including females and kittens, outside the
scope of this monitoring effort.
We are not aware of any comprehensive rangewide population
estimates for jaguars; however, Chavez and Ceballos (2006, p. 10)
report the jaguar population in Mexico is estimated at less than 5,000,
and Rabinowitz (as cited by Nowell and Jackson 1996, p. 121) estimated
Belize's jaguar population at between 600 and 1,000 individuals.
Experts reported 5,680 observations of jaguars (some of these are
likely observations of the same animal) at 535 separate locations
throughout the entire range during the last 10 years (Sanderson et al.
2002, p. 62). There are estimates of jaguar densities ranging from 1.7
to 4 adults per 38.6 square mi (100 square km) in Brazil, Peru,
Colombia, and Mexico, with the highest density found in Belize (6-8 per
100 square km) (International Union for the Conservation of Nature
(IUCN) 2008, p. 5).
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) which may require special management
considerations or protection; and, (ii) specific areas outside the
geographical area occupied by a species at the time it was listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means the use of all methods and
procedures needed to bring the species to the point at which listing
under the Act is no longer necessary.
Section 4(a)(3) of the Act, as amended, and its implementing
regulations at 50 CFR 424.12, require that, to the maximum extent
prudent and determinable, the Secretary designate critical habitat at
the time a species is determined to be endangered or threatened.
According to our regulations in the Code of Federal Regulations (CFR)
at (50 CFR 424.12(a)(1)) designation of critical habitat is not prudent
when one or both of the following situations exist--(1) The species is
threatened by taking or other human activity, and identification of
critical habitat can be expected to increase the degree of threat to
the species, or (2) such designation of critical habitat would not be
beneficial to the species.
Previous Federal Actions
In 1972, the jaguar was listed as endangered (37 FR 6476; March 30,
1972) in accordance with the Endangered Species Conservation Act of
1969, a precursor to the Endangered Species Act of 1973, as amended
(Act; 16 U.S.C. 1531 et seq.). Under the Endangered Species
Conservation Act, the Service maintained separate listings for foreign
species and species native to the United States. At that time, the
jaguar was believed to be extinct in the United States; thus, the
jaguar was only included on the foreign species list. The jaguar's
range was described as extending from the international boundary of the
United States and Mexico southward to include Central and South America
(37 FR 6476). On July 22, 1997, we published a final listing rule that
extended endangered status for the jaguar into the United States (62 FR
39147). For more information on previous Federal actions concerning the
jaguar, please refer to the July 22, 1997, final listing rule (62 FR
39147).
The July 22, 1997, listing rule included a determination that
designation of critical habitat for the jaguar was not prudent (62 FR
39147). At that time we determined that the greatest threat to the
jaguar in the United States was from direct taking of individuals
through shooting or other means. As a consequence, we determined that
designating critical habitat for the jaguar was ``not prudent,''
because ``publication of detailed critical habitat maps and
descriptions in the Federal Register would likely make the species more
vulnerable to activities prohibited under section 9 of the Act,'' and
therefore increase the degree of threat to the species.
In response to a complaint by the Center for Biological Diversity,
we agreed to re-evaluate our 1997 prudency determination and make a new
determination as to whether designation of critical habitat for the
jaguar was prudent by July 3, 2006. In that subsequent finding (July
12, 2006; 71 FR 39335), we noted that since the time of our July 22,
1997, determination, the Jaguar Conservation Team, Arizona Game and
Fish Department, publications, and other sources routinely have given
specific and general locations of jaguars that have been sighted and
currently are being documented in the United States through websites,
public notifications, reports, books, and meeting notes. Publishing
critical habitat maps and descriptions, as part of designating critical
habitat, would not result in the species being more vulnerable in the
United States than it is currently. We then assessed whether
designation of critical habitat would be beneficial to the species. We
found that no areas in the United States meet the definition of
critical habitat and, as a result, designation of critical habitat for
the jaguar would not be beneficial to the species. As a result, we
again
[[Page 1743]]
determined that designation of critical habitat for the jaguar was not
prudent (71 FR 39335). We did not consider designation of lands outside
of the United States in this analysis, because, under the Act's
implementing regulations, critical habitat cannot be designated in
foreign countries (50 CFR 424.12(h)).
The Center for Biological Diversity again challenged the Service's
decision that critical habitat was not prudent for the jaguar. On March
30, 2009, the United States District Court for the District of Arizona
(Court) issued an opinion in Center for Biological Diversity v.
Kempthorne, CV 07-372-TUC JMR (Lead) and Defenders of Wildlife v. Hall,
CV08-335 TUC JMR (Consolidated) (D. Ariz., Mar. 30, 2009) that set
aside our previous prudency determination and required that we issue a
new determination as to ``whether to designate critical habitat,''
i.e., whether such designation is prudent, by January 8, 2010. In this
opinion, the Court noted, among other things, that the Service's
regulations at 50 CFR 424.12(b) require that the Service ``shall focus
on the principal biological constituent elements within the defined
area that are essential to the conservation of the species.'' Such
elements include consideration of space for individual and population
growth, and for normal behavior; food, water, air, light, minerals, or
other nutritional or physiological requirements; cover or shelter;
sites for breeding, reproduction, rearing of offspring, germination, or
seed dispersal; and habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
Prudency Determination
As instructed by the Court, we have reevaluated our previous ``not
prudent'' finding regarding critical habitat designation for the jaguar
and the information supporting our previous findings. We have also
evaluated information and analysis that has become available to us
subsequent to the July 12, 2006, finding. As discussed in the
Background section above, jaguars have been found in the United States
in the past and may occur in the United States now or in the future. As
such, there are physical and biological features that can be used by
jaguars in the United States. Thus, in responding to the Court's order,
and following a review of the best available information, including the
ongoing conservation programs for the jaguar, we now determine that the
designation of critical habitat for the jaguar would be beneficial. We
also determine that designation of critical habitat will not be
expected to increase the degree of threat to the species. As such, we
no longer find that designation of critical habitat for the jaguar is
not prudent under our regulations, and conversely, therefore determine
that designation is prudent. We discuss below how we intend to proceed
with developing a proposed designation of critical habitat for the
jaguar.
How the Service Intends to Proceed
We intend to begin preparation of proposed rulemaking for the
jaguar in Fiscal Year 2010 and publish a proposed critical habitat
designation in January 2011. Based on the best available science, we
will take the following steps to develop a proposal of critical habitat
for the jaguar: (1) Determine the geographical area occupied by the
species at the time of listing; (2) identify the physical or biological
features essential to the conservation of the species; (3) delineate
areas within the geographical area occupied by the species that contain
these features, and identify the special management considerations or
protections the features may require; (4) delineate any areas outside
of the geographical area occupied by the species at the time of listing
that are essential for the conservation of the species; (5) conduct
appropriate analyses under section 4(b)(2) of the Act; and (6) invite
the public to review and provide comments on the proposed critical
habitat rule through a public comment period.
To aid us in completing these steps, we will use the best science
available, including but not limited to Boydston and Lopez Gonzalez
2005, Brown and Lopez Gonzalez 2000, Brown and Lopez Gonzalez 2001,
Carrillo et al. 2007, Cavalcanti 2008, Ceballos et al. 2006, Chavez and
Ceballos 2006, Chavez et al. 2007a, Chavez et al. 2007b, Grigione et
al. 2007, Grigione et al. 2009, Hatten et al. 2002, Hatten et al. 2005,
Marieb 2005, McCain and Childs 2008, Medellin et al. 2002, Menke and
Hayes 2003, Monroy-Vichis et al. 2007, Navarro Serment et al. 2005,
Nuxntilde;ez et al. 2002, Oropeza Hernandez et al. 2009, Robinson 2006,
Rosas Rosas 2006, Sanderson et al. 2002, and Sierra Institute 2000. We
also solicit the public for additional information (see Request for
Public Information section below) and will consult experts on the
jaguar, including experts on the jaguar in the northern portion of its
range.
While the proposed designation of critical habitat for the jaguar
is under preparation, the areas occupied by jaguars in the United
States will continue to be subject to conservation actions implemented
under section 7(a)(1) of the Act, as well as consultation pursuant to
section 7(a)(2) of the Act for Federal activities that may affect
jaguars, as determined on the basis of the best available scientific
information at the time of the action. In addition, the prohibition of
taking jaguars under section 9 of the Act (e.g., prohibitions against
killing, harming, harassing, and capturing jaguars) continues to apply,
which addresses the single greatest threat to the species in the United
States, as discussed in the final listing rule.
We will also continue to use our authorities to work with agencies
and other partners in the United States, Mexico, and Central and South
America to conserve and recover jaguars. We are working with the Jaguar
Conservation Team and other partners to develop and implement a
framework for the conservation of the northern jaguar populations,
including providing recommendations on research needs and procedures in
the United States, continuing education efforts, and providing
recommendations regarding predator control in areas where jaguars may
occur. We are also working with Mexican partners, such as Naturalia and
La Comision Nacional de areas Protegidas (CONANP) and other partners on
jaguar conservation in Mexico through the Trilateral Commission and
other processes. The Service's Wildlife Without Borders program has
funded and will likely continue to fund jaguar conservation projects
throughout the range of the jaguar in Latin America. Mexico and
countries in Central and South America, along with their
nongovernmental partners, are continuing conservation efforts,
including implementing research programs and developing conservation
plans. Specifically, Federal and State agencies in Mexico are
developing jaguar conservation plans; we intend to coordinate with
Mexico in their development to maintain travel corridors for jaguars
into the United States.
Request for Public Information
We intend that any designation of critical habitat for the jaguar
be as accurate as possible. Therefore, we will continue to accept
additional information and comments from all concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this finding. We are particularly interested in
information concerning:
[[Page 1744]]
(1) The amount and distribution of jaguar habitat, both throughout
its range and within the United States;
(2) The physical and biological features of jaguar habitat that are
essential to the conservation of the species;
(3) Special management considerations or protections that the
features essential to the conservation of the jaguar may require,
including managing for the potential effects of climate change;
(4) Any areas that are essential to the conservation of the jaguar
throughout its range and why;
(5) The areas in the United States that were occupied at the time
of listing that contain features essential to the conservation of the
species;
(6) The areas in the United States that were not occupied at the
time of listing, but are essential to the conservation of the species
and why;
(7) Land use designations and current or planned activities in
jaguar habitats and their possible impacts on proposed critical
habitat;
(8) Conservation programs and plans that protect the jaguar and its
habitat; and
(9) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Public Comment Procedures
To ensure that any final action resulting from this finding will be
as accurate and as effective as possible, we request that you send
relevant information for our consideration. The comments that will be
most useful and likely to influence our decisions are those that you
support by quantitative information or studies and those that include
citations to, and analyses of, the applicable laws and regulations.
Please make your comments as specific as possible and explain the bases
for them. In addition, please include sufficient information with your
comments to allow us to authenticate any scientific or commercial data
you include.
You must submit your comments and materials concerning this finding
by one of the methods listed above in the ADDRESSES section. We will
not accept comments sent by e-mail or fax or to an address not listed
in ADDRESSES. If you submit a comment via http://www.regulations.gov,
your entire comment--including any personal identifying information,
such as your address, telephone number, or e-mail address--will be
posted on the Web site. Please note that comments submitted to this Web
site are not immediately viewable. When you submit a comment, the
system receives it immediately. However, the comment will not be
publicly viewable until we post it, which might not occur until several
days after submission.
If you mail or hand-carry a hardcopy comment directly to us that
includes personal information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. To ensure that the
electronic docket for this finding is complete and all comments we
receive are publicly available, we will post all hardcopy comments on
http://www.regulations.gov.
In addition, comments and materials we receive, as well as
supporting documentation used in preparing this finding, will be
available for public inspection in two ways:
(1) You can view them on http://www.regulations.gov. In the Search
Documents box, enter FWS-R2-ES-2009-0091, which is the docket number
for this action. Then, in the Search panel on the left side of the
screen, select the type of documents you want to view under the
Document Type heading.
(2) You can make an appointment, during normal business hours, to
view the comments and materials in person at the Arizona Ecological
Services Office (see FOR FURTHER INFORMATION CONTACT).
Public Availability of Comments
As stated above in more detail, before including your address,
phone number, e-mail address, or other personal identifying information
in your comment, you should be aware that your entire comment--
including your personal identifying information--may be made publicly
available at any time. While you can ask us in your comment to withhold
your personal identifying information from public review, we cannot
guarantee that we will be able to do so.
References Cited
A complete list of references cited is available on the Internet at
Docket No. FWS-R2-ES-2009-0091 at http://www.regulations.gov and upon
request from the Arizona Ecological Services Office (see FOR FURTHER
INFORMATION CONTACT).
Author(s)
The primary author of this notice is the staff of the U.S. Fish and
Wildlife Service.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: December 30, 2009.
Eileen Sobeck,
Acting Assistant Secretary for Fish, Wildlife and Parks.
[FR Doc. 2010-479 Filed 1-12-10; 8:45 am]
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