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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC61

Endangered and Threatened Wildlife and Plants; Final Rule To

Extend Endangered Status for the Jaguar in the United States

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Fish and Wildlife Service (Service) extends endangered

status to the jaguar (Panthera onca) throughout its range under the

authority of the Endangered Species Act of 1973, as amended. With this

rule, the jaguar is now also listed as endangered in the United States,

as well as in Mexico and Central and South America. In the United

States, a primary threat to this species is illegal shooting. A minimum

of 64 jaguars were killed in Arizona since 1900. The most recent

individual killed in Arizona was in 1986.

Loss and modification of the jaguar's habitat are likely to have

contributed to its decline. While only a few individuals are known to

survive in the United States (Arizona and New Mexico), the presence of

the species in the United States is believed to be dependent on the

status of the jaguar in northern Mexico. Documented observations are as

recent as 1996. Critical habitat was found to not be prudent and

therefore is not being designated.

DATES: Effective August 21, 1997.

ADDRESSES: The complete file for this rule is available for inspection,

by appointment, during normal business hours at the Fish and Wildlife

Service, Arizona Ecological Services Field Office, 2321 West Royal Palm

Road, Suite 103, Phoenix, Arizona 85021.

FOR FURTHER INFORMATION CONTACT: Sam Spiller, Field Supervisor, Arizona

Ecological Services Field Office (see ADDRESSES section) (telephone

602/640-2720; facsimile 602/640-2730).

SUPPLEMENTARY INFORMATION:

Background

The jaguar (Panthera onca) is the largest species of cat native to

the Western Hemisphere. Jaguars are muscular cats with relatively

short, massive limbs and a deep-chested body. They are cinnamon-buff in

color with many black spots; melanistic forms are also known, primarily

from the southern part of the range. Its range in North America

includes Mexico and portions of the southwestern United States (Hall

1981). A number of jaguar records are known from Arizona, New Mexico,

and Texas. Additional reports exist for California and Louisiana.

Records of the jaguar in Arizona and New Mexico have been attributed to

the subspecies Panthera onca arizonensis. The type specimen of this

subspecies was collected in Navajo County, Arizona, in 1924 (Goldman

1932). Nelson and Goldman (1933) described the distribution of this

subspecies as the mountainous parts of eastern Arizona north to the

Grand Canyon, the southern half of western New Mexico, northeastern

Sonora, and, formerly, southeastern California. The records for Texas

have been attributed to Panthera onca veraecrucis. Nelson and Goldman

(1933) described the distribution of this subspecies as the Gulf slope

of eastern and southeastern Mexico from the coast region of Tabasco,

north through Vera Cruz and Tamaulipas, to central Texas.

Swank and Teer (1989) indicate that the historical range of the

jaguar includes portions of the States of Arizona, New Mexico, Texas

and Louisiana. These authors consider the current range to occur from

central Mexico through Central America and into South America as far as

northern Argentina. They state that the United States no longer

contains established breeding populations, which probably disappeared

in the 1960's. They also maintain that the jaguar prefers a warm,

tropical climate, is usually associated with water, and is only rarely

found in extensive arid areas.

Brown (1983) presented an analysis suggesting there was a resident

breeding population of jaguars in the southwestern United States at

least into the 20th century. The Service (U.S. Fish and Wildlife

Service 1990) recognizes that the jaguar continues to occur in the

American Southwest, at least as an occasional wanderer from Mexico.

The life history of the jaguar has been summarized by Nowak (1991)

and Seymour (1989), among others. Jaguars breed year-round range-wide,

but at the southern and northern ends of their range there is evidence

for a spring breeding season. Gestation is about 100 days; litters

range from one to four cubs (usually two). Cubs remain with their

mother for nearly 2 years. Females begin sexual activity at 3 years of

age, males at 4. Studies have documented few wild jaguars more than 11

years old.

The list of prey taken by jaguars range-wide includes more than 85

species (Seymour 1989), such as peccaries (javelina), capybaras, pacas,

armadillos, caimans, turtles, and various birds and fish. Javelina and

deer are presumably mainstays in the diet of jaguars in the United

States and Mexico borderlands.

Jaguars are known from a variety of habitats (Nowak 1991, Seymour

1989). They show a high affinity to lowland wet habitats, typically

swampy savannas or tropical rain forests. However, they also occur, or

once did, in upland habitats in warmer regions of North and South

America.

Within the United States, jaguars have been recorded most commonly

from Arizona, but there are also records from California, New Mexico,

and Texas, and reports from Louisiana. Currently there is no known

resident population of jaguars in the United States, though they still

occur in northern Mexico.

Arizona

Goldman (1932) believed the jaguar was a regular, but not abundant,

resident in southeastern Arizona. Hoffmeister (1986) considered the

jaguar an uncommon resident species in Arizona. He concluded that the

reports of jaguars between 1885 and 1965 indicated that a small but

resident population once occurred in southeastern Arizona. Brown (1983)

suggested that the jaguar in Arizona ranged widely throughout a variety

of habitats from Sonoran desert scrub upward through subalpine conifer

forest. Most of the records were from Madrean evergreen-woodland,

shrub-invaded semidesert grassland, and along rivers (Girmandonk 1994).

The most recent records of a jaguar in the United States are from

the New Mexico/Arizona border area and in southcentral Arizona, both in

1996, and confirmed through photographs. In 1971, a jaguar was taken

east of Nogales, Arizona, and, in 1986, one was taken from the Dos

Cabezas Mountains in Arizona. The latter individual reportedly had been

in the area for about a year before it was killed (Ron Nowak, Fish and

Wildlife Service, pers. comm., 1992).

The Arizona Game and Fish Department (1988) cited two recent

reports of jaguars in Arizona. The individuals were considered to be

transients from Mexico. One of the reports was from 1987 from an

undisclosed location. The other report was from 1988, when tracks were

observed for several days prior to the

[[Page 39148]]

treeing of a jaguar by hounds in the Altar Valley, Pima County.

An unconfirmed report of a jaguar at the Coronado National Memorial

was made in 1991 (Ed Lopez, Coronado National Memorial, pers. comm.,

1992). In 1993, an unconfirmed sighting of a jaguar was reported for

Buenos Aires National Wildlife Refuge (William Kuvlesky, Fish and

Wildlife Service, in litt., 1993). The following are historical

accounts of jaguar occurrence:

California. Merriam (1919) summarized several accounts of jaguars,

from various locations in California, which were obtained from

documents published between 1814 and 1860. Strong (1926) provided

evidence the Cahuilla Indians of the Coachella Valley and San Jacinto

and Santa Rosa Mountains of southern California were familiar with the

jaguar. Nowak (1975) mentioned reports of jaguars in the Tehachapi

Mountains from 1855, and the last known individual from California

which was killed near Palm Springs in 1860 (Strong 1926). Nowak

speculated the animal may have been a breeding individual.

Louisiana. Nowak (1973) speculated on the occurrence of jaguars

east of Texas. Several early accounts mentioned jaguars and tigers. He

cited Baird (1859) who believed that specimens had been taken from

Louisiana. Nowak also discussed the killing of what was probably a

jaguar near New River, Ascension Parish, Louisiana in 1886. Lowery

(1974) mentioned this killing and included the jaguar in the fauna of

Louisiana on a provisional basis.

New Mexico. Barber (1902) speculated that jaguars made their way

into the Mogollon Mountains of New Mexico by ascending the Gila River.

Bailey (1931) suggested that jaguars seemed to be native in southern

New Mexico but were regarded as wanderers from across the United

States-Mexico border. He listed nine reports of jaguars in New Mexico

from 1855 to 1905. Brown (1983) stated that the last record from New

Mexico was from 1905. Nowak (1975) mentioned reports of jaguars along

the Rio Grande from as late as 1922. Halloran (1946) reported that dogs

``jumped'' a jaguar in the San Andres Mountains in 1937. Findley et al.

(1975) stated that jaguars once occurred as far north as northern New

Mexico.

Texas. Bailey (1905) stated that the jaguar was once reported as

common in southern and eastern Texas but had become extremely rare.

Nowak (1975) believed that an established population once occurred in

the dense thickets along the lower Nueces River and northeast to the

Guadalupe River. He suggested that jaguars probably continued to wander

from Mexico into the brush country of the southernmost part of the

State. However, brush clearing has possibly reduced chances for

reestablishment of the species in Texas.

Mexico. Leopold (1959) believed the distribution of the jaguar in

Mexico included the tropical forests of southeastern Mexico, the

coastal plains to the mouth of the Rio Grande on the Gulf of Mexico

side, and the Sonoran foothills of the Sierra Madre Occidental on the

Pacific side. The highest densities of jaguars were found along heavily

forested flatlands and foothills of southern Sinaloa, the swamps of

coastal Nayarit, the remaining uncut forests along the Gulf coast as

far east as central Campeche, and the great rain forests of northern

Chiapas. He indicated that occasional wandering individuals were found

far from these areas and that some had followed tropical gorges far

into the mountains. He believed that jaguars had traveled up the

Brazos, Pecos, Rio Grande, Gila, and Colorado Rivers on their northern

movements. He mentioned a 1955 record of a jaguar near the southern tip

of the San Pedro Martir range, Baja California. Leopold asserted that

this individual was 500 miles from regularly occupied jaguar habitat.

Swank and Teer (1989) described the distribution of the jaguar in

North America as a broad belt from central Mexico to Central America.

They found that the most northerly established populations, as reported

by Mexican officials, were in southern Sinaloa and southern Tamaulipas.

Brown (1991) did not believe the jaguar was extirpated from

northern Mexico. Although jaguars were considered relatively common in

Sonora in the 1930's and 1940's, he cited a population about 800 miles

south of the United States-Mexico border as the most northern

officially reported. However, Brown suggested that there may be more

jaguars in Sonora than are officially reported. He mentioned reports of

two jaguars which were killed in central Sonora around 1970. He also

discussed assertions by the local Indians that both male and female

jaguars still occurred in the Sierra Bacatete about 200 miles south of

Arizona. Brown speculated that if a reproducing population of jaguars

is still present in these mountains, it may be the source of

individuals which travel northward through the Sierra Libre and Sierra

Madera until they reach Arizona. Nowak (pers. comm., 1992) reiterated

that as late as 1987, the species was still considered common in the

Sierra Bacatete near Guaymas, Sonora.

Brown (1989) reported that biologists from Mexico have stated that

at least two jaguars have been killed in Chihuahua. In 1987, Nowak

(pers. comm., 1992) claimed that jaguars were still regularly present

along the Soto la Marina River of central Tamaulipas, which is about

150 miles from the southern tip of Texas. He also hypothesized that

jaguars may be entering Arizona from Mexico due to habitat destruction

in Sonora. Large stretches of natural forest were cleared in central

Tamaulipas. In Arizona, by contrast, jaguar prey populations have

increased, and large tracts of brush and canyon woodland are still

available to provide cover for jaguars.

Previous Federal Actions

Prior to this final rule, the jaguar was listed as endangered from

the United States and Mexico border southward to include Mexico and

Central and South America (37 FR 6476, March 30, 1972; 50 CFR 17.11,

August 20, 1994). The species was originally listed as endangered in

accordance with the Endangered Species Conservation Act of 1969 (ESCA).

Pursuant to the ESCA, two separate lists of endangered wildlife were

maintained, one for foreign species and one for species native to the

United States. The jaguar appeared only on the List of Endangered

Foreign Wildlife. In 1973, the Endangered Species Act (Act) superseded

the ESCA. The foreign and native lists were replaced by a single ``List

of Endangered and Threatened Wildlife,'' which was first published in

the Federal Register on September 26, 1975 (40 FR 44412).

On July 25, 1979, the Service published a notice (44 FR 43705)

stating that, through an oversight in the listing of the jaguar and six

other endangered species, the United States populations of these

species were not protected by the Act. The notice asserted that it was

always the intent of the Service that all populations of the seven

species deserved to be listed as endangered, whether they occurred in

the United States or in foreign countries. Therefore, the notice stated

that the Service intended to take action as quickly as possible to

propose the United States populations of these species for listing.

On July 25, 1980, the Service published a proposed rule (45 FR

49844) to list the jaguar and four of the other species referred to

above in the United States. The proposal for listing the jaguar and

three other species was withdrawn on September 17, 1982 (47 FR 41145).

The notice issued by the Service stated that the Act mandated

[[Page 39149]]

withdrawal of proposed rules to list species which have not been

finalized within 2 years of the proposal.

On August 3, 1992, the Service received a petition from the

instructor and students of the American Southwest Sierra Institute and

Life Net to list the jaguar as endangered in the United States. The

petition was dated July 26, 1992. On April 13, 1993 (58 FR 19216), the

Service published a finding that the petition presented substantial

information indicating that listing may be warranted, and requested

public comments and biological data on the status of the jaguar. On

July 13, 1994 (59 FR 35674), the Service published a proposed rule to

extend endangered status to the jaguar throughout its range.

On September 8, 1994, the Service received a petition from the

Trans Texas Heritage Association to list the jaguar as extinct in the

United States. The Service responded to the petitioner on December 5,

1994, that the request was not a petitionable action.

On April 10, 1995, Congress enacted a moratorium prohibiting work

on listing actions (Public Law 104-6) and eliminated funding for the

Service to conduct final listing activities. The moratorium was lifted

on April 26, 1996, by means of a Presidential waiver, at which time

limited funding for listing actions was made available through the

Omnibus Budget Reconciliation Act of 1996 (Public Law No. 104-134, 100

Stat. 1321, 1996). The Service published guidance for restarting the

listing program on May 16, 1996 (61 FR 24722). The listing process for

the jaguar was resumed in September 1996, when the Southwest Center for

Biological Diversity filed a law suit and motion for summary judgment

for the Secretary to finalize the listing for the jaguar and four other

species.

On January 15, 1997, the Arizona Game and Fish Department and New

Mexico Department of Game and Fish requested that the Service reopen

the jaguar public comment period for 70 days so that they could

finalize and submit an interstate/intergovernmental ``Conservation

Assessment and Strategy for the Jaguar in Arizona and New Mexico'' and

``Memorandum of Agreement for the Conservation of the Arizona Jaguar.''

These documents, collectively referred to as the Conservation Agreement

(CA), reflect the commitments of the agencies to expedite the

development and implementation of conservation measures needed for the

Arizona jaguar in the United States.

The Service considered the CA as new information relevant to the

listing determination. The comment period was reopened for a total of

15 days, from January 31 through February 14, 1997 (62 FR 4718). The

completion date for the final listing determination was reassigned to

April 1, 1997. On March 14, 1997, the U.S. District Court for the

District including Arizona ordered the Service to list the jaguar as

endangered no later than 120 days from the date of the order. On July

3, 1997, the Court clarified that order, noting that the 120-day

timeframe was provided for the Service to make a decision as to whether

or not to extend endangered status for the jaguar in the United States.

Summary of Comments and Recommendations

In the July 13, 1994, proposed rule (59 FR 35674) and associated

notifications, all interested parties were requested to submit factual

reports or information that might bear on whether or not the jaguar

should be listed. The comment period originally closed on September 12,

1994, but was reopened from November 15 to December 14, 1994 (59 FR

53627; October 25, 1994), to allow submission of additional comments

and public hearings. Appropriate State and Federal agencies, county

governments, scientific organizations, and other interested parties

were contacted and requested to comment. Newspaper notices inviting

public comment were published in Arizona in the Arizona Republic,

Phoenix Gazette, Arizona Daily Star, Tucson Citizen, and Green Valley

News/Sun; in New Mexico in the Albuquerque Journal, Albuquerque

Tribune, Las Cruces Sun-News, Santa Fe New Mexican, Alamogordo Daily

News, Defensor Chieftain, and Silver City Daily Press and Independent;

and in Texas in the Corpus Christi Caller-Times and The McAllen

Monitor. The inclusive dates of publication were July 29 to August 3

for the initial comment period. The inclusive dates of publication for

the comment period extension and public hearings were November 11 to

November 15 and did not include the Green Valley News but did include

the El Paso Times/Herald Post.

Public hearings were requested by the Cochise County (Arizona)

Planning Department, the Board of Supervisors of Apache County

(Arizona), the Eastern Arizona Counties Organization, the County of

Otero (New Mexico), and the Texas Wildlife Association. The Service

conducted three public hearings. Interested parties were contacted and

notified of the hearings. A notice of the hearing dates and locations

was published in the Federal Register on October 25, 1994 (59 FR

53627). Approximately 60 people attended the hearings. About 15 people

attended the hearing in Safford, Arizona, 10 in El Paso, Texas, and 35

in Weslaco, Texas. Transcripts of these hearings are available for

inspection (see ADDRESSES section).

Upon resumption of the listing process following the listing

moratorium, a third public comment period was opened, January 31, 1997,

through February 14, 1997. Notice of this reopening of the comment

period was published between January 31, 1997 and February 8, 1997 (62

FR 4718). Newspaper notices inviting public comment were published in

Arizona in the Green Valley News, Arizona Daily Star (Tucson), Tucson

Citizen, and Arizona Republic (Phoenix); in Texas in the Corpus Christi

Caller Times, Las Cruces Sun-News, The Monitor (McAllen), and El Paso

Times/Herald; and in New Mexico in the Albuquerque Journal, Albuquerque

Tribune, Silver City Daily Press, Defensor Chieftain (Socorro),

Alamogordo Daily News, and Santa Fe New Mexican. No additional formal

public meetings were held during this period.

A total of 266 written comments were received during all open

comment periods. The listing proposal was supported by 185; 43 opposed

the proposed listing; 31 supported the CA in lieu of listing, and 7

either commented on information in the proposed rule but expressed

neither support nor opposition, provided additional information only,

or were non-substantive or irrelevant to the proposed listing. In

addition, a ``petition'' to place the jaguar on the endangered species

list included 115 signatures.

Oral or written comments were received from 21 parties at the

hearings. Four supported listing, 15 opposed listing, and 2 expressed

neither support nor opposition, provided additional information only,

or provided comments that were nonsubstantive or irrelevant to listing.

In addition to the public comments, the Service sought out peer

review from three independent scientists. Two of the three peer

reviewers responded. A discussion of their comments follow the

discussion of public comments and Service responses below.

Written comments and oral statements presented at the public

hearings and received during the comment periods are incorporated into

this rule as appropriate and/or are addressed in the following

discussion of issues and responses. Comments of a similar nature or

point are grouped into a number of general issues. These issues

[[Page 39150]]

and the Service's response to each are discussed below.

Issue 1: The jaguar is not native to the United States. The

assumption by the Service that the historical range includes the United

States is not borne out by the historical record. The United States was

merely peripheral to the historic range. The species was never more

than wandering individuals that occasionally crossed the border into

the United States. The native jaguar is extirpated from the United

States. Only the State of Arizona has had alleged reports of jaguars.

No breeding population of the jaguar exists in the United States. The

likelihood of establishing a breeding population would be impossible

because of previous habitat modification and distances of breeding

populations from the United States. Suitable habitat, even for random

wanderings, no longer exists. That is why visits were rare in the

1900's and why the visits resulted in the demise of the stray. It is

incumbent upon the Service to provide evidence that the jaguar was a

breeding species in the United States.

Service response: As discussed in the ``Summary of Factors

Affecting the Species,'' the Service believes that the jaguar is native

to the United States. The evidence strongly indicates that the

historical range of the jaguar included portions of the southwestern

United States. The jaguar is not extirpated from the United States as

indicated by continuing reports and documentation of individuals in

Arizona. The most recent observation was made in late 1996 from Arizona

and New Mexico.

The issue of whether a breeding population is wholly supported

within the United States is not relevant. The fact that individuals

occur in the United States warrants their consideration for listing,

evaluation of relevant threats, and development of appropriate

conservation considerations.

Issue 2: The Service should list the jaguar as extinct in the

United States and herewith is a petition for such a finding. Another

commenter stated the actual scientific evidence that either subspecies

of jaguar still exists is lacking. Another commenter stated there

appears to be no evidence of subspecies identification of jaguars for

California, Louisiana, New Mexico, or Mexico.

Service response: As discussed in the section regarding previous

Federal action, the Service responded to the petition to list the

jaguar as extinct in the United States in a letter dated December 5,

1994 (John Rogers, Fish and Wildlife Service, in litt., 1995). In that

letter, the Service stated that it does not add species to the list of

endangered and threatened wildlife and plants as extinct, and

therefore, the Service believed that the request was not a petitionable

action.

As discussed above, there are two subspecies that are known from,

and may occur in, the United States. The reports and records of jaguars

in Arizona, California, and New Mexico are attributable to Panthera

onca arizonensis. The type locality for this subspecies is in Navajo

County, Arizona. The reports and records of jaguars in Louisiana and

Texas are attributable to P. o. veraecrucis. Although the subspecies

designation of the jaguar is not relevant to the listing proposal, the

Service has confirmed that P. o. arizonensis is in Arizona; the Service

believes that P. o. veraecrucis may be extant in Texas.

Issue 3: There are no scientifically valid records to support the

idea that jaguars existed in California in recent centuries. No post-

Pleistocene remains have been collected in California, nor in the

Colorado River corridor from northern Arizona to the Gulf of

California. None of the purported sightings in those areas were made by

biologists or reputable naturalists. Early 19th century references in

central California were based on hearsay or misidentification. The

purported sightings in southern California are not reliable. It is

conceivable that individuals wandered into California from Arizona or

Mexico historically, given their long-range dispersal ability. However,

such events would have been rare.

Service response: Available information indicates that California

was part of the historical range of the jaguar, but no conclusive data

exist. The California Department of Fish and Game (R. Jurek, pers.

comm. 1996) does not accept these records as valid. Regardless, this

rule extends endangered status to the jaguar in the United States

throughout its range. Thus, whether or not California is part of the

historical range, jaguars that may occur there are protected by the

Act.

Issue 4: A commenter stated that most of the accounts in the

proposal are anecdotal. Another stated there were discrepancies in the

number of jaguars taken or killed in Arizona and that it is incumbent

upon the Service to provide documentation for the information presented

in the proposed rule.

Service response: The Service has carefully evaluated the

information available regarding the jaguar for accuracy and relevance,

whether anecdotal or not. The Service has addressed any discrepancies

it has perceived and made changes where appropriate in this final rule.

Many accounts of jaguar occurrence are from the historical literature

and field accounts. Reconciling historical information is often

complex, so the Service has tried to use the best information

available, relying primarily on those aspects of the data which are

best substantiated. Finally, this rule includes updated information

that definitively documents jaguar occurrences as recently as 1996.

Issue 5: One commenter stated that listing of the jaguar will lead

to efforts to reintroduce the species. Another commenter stated that

until the encroachment of people into these predatory animals' habitat

can be stopped, it is not ethical to reintroduce a listed species.

Furthermore, there are no areas big enough for reintroduction.

Alternatively, another commenter stated the jaguar should be

reintroduced in Texas. Places to start should include the Rio Grande

River, perhaps in the Big Bend area. The jaguar is a top predator in

the food chain and would provide biological control of various

ungulates and rodents. The Service should begin a public education

program to protect the jaguar and break ground on reintroduction.

Another commenter was particularly interested in the prospect of

reintroduction of the jaguar to California and other States. Another

commenter stated that proper planning is needed for reintroduction.

Service response: Depending on the species involved and the

situation it faces, reintroduction may or may not be a viable means to

reach recovery. The Service has no plans for reintroduction of the

jaguar anywhere in the United States. If reintroduction is contemplated

at any time in the future it would be the subject of a separate

rulemaking.

Issue 6: None of the jaguars reported taken in recent times were

taken as a result of legal, licensed, sport hunting. Thus, the jaguars

reported taken were poached and not hunted.

Service response: The accuracy of this statement would depend on

the wildlife laws and regulations that were in effect at the time all

of the known jaguars were taken. However, the Service acknowledges that

the wording in the proposed rule could have been misconstrued to mean

jaguars are victims of legal hunting. The appropriate corrections have

been made in the text of the final rule.

Issue 7: Property rights may be abridged by this action in the

States considered by the Service to be part of the historical range.

Activities of the Service are adversely affecting people throughout the

State of Texas, with

[[Page 39151]]

little, if any, benefit to the species. The proposed rule is seen as

another attempt to further restrict legal hunting and predator control

activities. Frivolous listings violate citizens' 9th and 10th amendment

rights. Another commenter stated listing would require protection of

the jaguar, thereby violating livestock owner's 5th and 14th amendments

and civil rights. Will landowners not be subject to aerial inspection?

Will the Service not be subject to lawsuits from the Humane Society?

Possible acquisition of private property to create habitat for

nonexisting or reintroduced jaguars would cause great loss to livestock

and all other wild animals in south Texas. Listing of other species

(Mexican spotted owl) has resulted in affecting other industries

(logging) and actually resulted in further endangering the species. If

the jaguar is listed, Federal agencies must comply with section 7 of

the Act. Activities that may be affected are clearing of habitat,

destruction of riparian areas, fragmentation or blocking of corridors

that jaguars may use to cross from Mexico into the United States, and

any trapping or animal control activities designed to target the jaguar

or other large predators. This is an outrageous blatant attack on the

agricultural economies of the States involved. Trapping and animal

damage control activities designed to target large predators should not

be victims of the listing of the jaguar. These programs have a

legitimate function and should not be destroyed on behalf of a phantom

species.

Service response: Under the Act, listing of species must be

considered only on the basis of the best biological information

available. Listing decisions cannot be made on the basis of economic

factors or possible problems or conflicts that may arise from

compliance with section 7 and 9 of the Act. Once listed, however, the

Service strives to recover threatened and endangered species in ways

that minimize impacts on industry or private citizens. Further

discussion of activities that may or may not violate the Act are

discussed under the Available Conservation Measures section.

Issue 8: No scientific information has been provided to support the

argument that the jaguar requires protection in the United States. The

proposed rule fails to demonstrate (under the listing factors) that the

species is endangered in the United States.

Service response: The Service believes that the information

regarding the threats to the jaguar in the United States discussed

under the five factors indicates that the species merits listing.

Issue 9: Jaguars that occur in the United States do not possess the

genetics needed to enhance the breeding population.

Service response: The Service does not possess relevant information

regarding the genetic status of the jaguar in the United States.

However, the genetic contribution of all individuals of a declining

species may be of great importance. The listing does not depend on the

value of the genetic importance of the individuals. However, if, for

example, the jaguar was known to suffer from genetic diseases, that

could be considered as a factor to list the species.

Issue 10: It would be a mistake to select boundaries of protected

areas based on the conditions that existed 50-100 years ago. What is

the basis for stating that clearing of habitat may affect the jaguar?

The majority of records were from the turn of the century when there

was very little of the current mesquite infestation. It is incumbent

upon the Service to provide evidence that riparian areas are being

destroyed anywhere in the Southwest. If jaguar habitat stretches from

2,000 to 9,000 feet of elevation, a vast swath of both Arizona and New

Mexico would be subject to review.

Service response: Under this listing action, the Service is not

setting any boundaries for protected areas. As a result of this action,

the species will be protected under the Act throughout its entire

range.

Clearing of habitat could affect jaguars either directly or through

effects on its prey. Although listing of the jaguar does not hinge on

loss of riparian areas that may be used by jaguars, such loss has

occurred and is continuing in the Southwest. As outlined in other

sections of this rule, the available scientific literature indicates

that jaguars do rely on riparian areas for habitat and movement

corridors. However, very little is actually known about the habitat

requirements and movement corridors for the jaguar in the United States

at the northern periphery of its range. The Service agrees that large

areas may have to be considered when evaluating effects of activities

on the jaguar. However, very localized activities may actually be

judged to have less of an effect on jaguars than if jaguars occupied

very narrow habitat areas. As discussed in the Available Conservation

Measures section, the Service anticipates few projects will be reviewed

under section 7 of the Act because jaguars can be expected to occur in

few areas.

Issue 11: In Texas, the jaguar is already protected by the State's

endangered species law. The State can seek civil restitution for

wildlife losses due to intentional harm or negligence, with the current

replacement cost for a jaguar being over $7,000. It is highly suspect

whether Federal protection would be additive, given the number of Texas

game wardens (more than 450) and the handful of Federal agents. The

Service refuses to recognize any State regulation as adequate,

preferring to increase the burden of Federal regulations on all States

involved. Protection of the species from the threat of shooting does

not require Federal listing; it can be accomplished through hunting

regulations and other means. New Service policies provide for increased

emphasis on working with State agencies. Texas Wildlife and Parks

Department (TWPD) will undertake to develop an interstate cooperative

effort similar to the one for the swift fox. If the Service accepts

this strategy, it will have the full support and cooperation of TWPD.

Another commenter suggested that instead of listing, the Service should

work with the States to get their laws strengthened.

Service response: As discussed under Factor D, the penalties for

violation of the Act are much stronger than any current State

provisions. The Service believes that such protection provided by the

Act is appropriate for the jaguar. The Service understands that despite

an offered $4,000 reward, the Arizona Game and Fish Department

encountered difficulties in obtaining information relevant to a

suspected killing of a jaguar in Arizona. In addition to the take

prohibition, listing the species under the Act will provide other

protection as well (See Available Conservation Measures). In addition,

listing provides an appropriate range-wide perspective when considering

the species' recovery needs. In absence of other regulatory mechanisms

that will adequately protect the jaguar, the Service believes that

listing is warranted.

Issue 12: The Service is precluded from including the jaguar in the

list of United States endangered species because the proposal to list

was not acted upon in a timely manner by the Service pursuant to the

proposal to list in 1980 (45 FR 49844). The Service failed to complete

the listing process in 1982, thereby requiring withdrawal of the

proposal. The Service should be precluded from the current proposed

action based on the Service's earlier oversight and omissions.

Service response: As discussed under Previous Federal Actions, the

Service did propose to list the jaguar in the United States in 1980.

The proposal was withdrawn in 1982 in accordance with the regulations

under the Act in place at that time. That proposal and

[[Page 39152]]

withdrawal are not related to the present proposal and do not preclude

the Service from proposing or finalizing the current action.

Issue 13: There is no benefit to the species from the proposed

rule. It is apparent that the intent of the rule is to prohibit certain

practices such as trapping and animal damage control within the States

involved and to extend Federal control.

Service response: The fact that jaguars will be afforded the

protections of the Act in the United States is clearly a benefit to the

species. Prohibition of practices that affect the jaguar is not the

intent of this listing. However, some activities could be affected by

the listing, as discussed under Available Conservation Measures.

Issue 14: Commenters suggested that livestock losses to jaguars

will occur. Jaguars will jeopardize the recreational industry in the

Gila Wilderness. Balance of wildlife and the human factor would be

completely destroyed. Several commenters expressed uneasiness with the

idea of facing or being stalked by a jaguar. Listing would pose a

threat to the general public safety, which Arizona counties are charged

to protect under Arizona Revised Statutes, Section 11-806(b).

Service response: While not considered as listing factors, the

Service does not believe that listing the jaguar will result in losses

to the livestock or recreational industries or pose a threat to general

public safety.

Issue 15: Designation of critical habitat is needed. Recommended

areas include the Animas Range in the bootheel of New Mexico and the

San Pedro River Valley, Huachuca Mountains, and Santa Cruz Basin in

Arizona. Loss of habitat is a primary threat; habitat loss will prevent

jaguar recovery and increase its vulnerability to poaching. Because

there is no recovery plan, it is essential that critical habitat be

designated at the time of listing. The jaguar requires whole landscapes

for survival and recovery; additional knowledge about specific natural

community preferences in the Southwest are not a prerequisite for

determining critical habitat. Designation of large blocks of critical

habitat would not aid poachers and should help alert law enforcement to

the need for antipoaching surveillance. Why not designate all riparian

ways in the Southwest as critical habitat? Critical habitat will help

the Service in controlling activities of Animal Damage Control.

Service response: The July 13, 1994 (59 FR 35674), proposed rule

did not include a proposal for designation of critical habitat because

it was determined not to be prudent. The Service still believes this to

be the case. The Service's reasons for a ``not prudent'' determination

are discussed under the Critical Habitat section of this final rule.

Issue 16: Federal listing would require a recovery plan and later

designation of critical habitat. The Service has recognized that such a

plan would require importing of jaguars into habitat that must be

suitable for its foraging, which is not available in the border areas

of the United States with Mexico. What guarantee is there that the

Service will not designate critical habitat? What would preclude any

organization from petitioning the Service to declare critical habitat

for the jaguar?

Service response: The jaguar was briefly addressed in a recovery

plan for the listed cats of Texas and Arizona (U.S. Fish and Wildlife

Service, 1990). Upon listing, it would probably be appropriate to

develop a more extensive recovery plan for the species. The existing

recovery plan for the listed cats does not recommend importing jaguars.

The July 13, 1994 (59 FR 35674) proposed rule did not include a

proposal for designation of critical habitat because it was determined

not to be prudent. The Service has no information that critical habitat

is prudent. Critical habitat is defined in section 3(5)(A) of the Act

as the geographical area on which are found those physical or

biological features essential to the conservation of the species. Areas

on the periphery of a species range or areas that are only infrequently

used by a species often do not exhibit the qualities that would

constitute a critical habitat designation. To the extent that

identification of habitats that are essential for the recovery of the

species rangewide is necessary, the Service would identify these areas

as part of the recovery planning process.

Issue 17: Listing of the jaguar could have significant impacts on

the success of the Service in the lower Rio Grande Valley, and

particularly in the Lower Rio Grande Valley National Wildlife Refuge

complex. Listing would frustrate rather than benefit efforts for

species. While there may be merit in listing, the protection and

restoration of habitat in south Texas may be thwarted. It is difficult

to get funding to complete the Lower Rio Grande Valley Refuge. Although

the species deserves every protection, listing at this time will be

counter-productive. Another commenter stated the Act is a serious law

intended for serious problems. The Act is not an animal rights act, and

listing the jaguar would be an abuse of the Act.

Service response: As stated previously, listing decisions are to be

based on the best available scientific and commercial information and

the five listing factors discussed in this rule (see Summary of Factors

Affecting the Species section). The Service disagrees that listing

would preclude management of the species in Texas, and agrees that the

Act is a serious law and that its protections should be afforded to a

species that has suffered extensive curtailment of its range and is

still vulnerable to a variety of threats.

Issue 18: The Convention on International Trade in Endangered

Species of Wild Fauna and Flora (CITES) provides stiff penalties for

illegal importation. This law should be effective against ``canned

hunts.''

Service response: CITES is an international treaty that regulates

trade (import/export) in wildlife between countries. CITES does not,

however, address activities with wildlife that occur within the United

States. So although CITES regulates international trade in jaguars, it

offers no protection to the jaguar from ``canned'' or baited hunts.

(See Factor D for further information on CITES.) Certain State

penalties do apply to the jaguar that may be enforced by the Federal

government under the Lacey Act. In the case of transportation across

State lines of an illegally obtained jaguar, the Lacey Act would apply.

Issue 19: The Service has not analyzed, under section 7 of the Act,

impacts to the ocelot, jaguarundi, Attwater's prairie chicken, and

whooping crane that could result from the introduction of exotic

jaguars from Mexico. How would the jaguar not impact prey sources of

both ocelot and jaguarundi? What would keep the jaguar from preying on

the previously mentioned species? How will exotic jaguars not introduce

disease?

Service response: Section 7 consultations are not conducted for

rules proposing or listing species as threatened or endangered under

the Act. Section 7 of the Act applies to those actions that may affect

listed species. Listing a species would not be expected to have an

adverse affect on any other listed species. If any future Federal

actions associated with a listed species may affect another listed

species, such as a recovery activity, then a section 7 consultation

would be required for that action at the time it is proposed. (See

Issue 5 for further information on reintroduction.)

Issue 20: A commenter requested that an environmental impact

statement

[[Page 39153]]

(EIS) be done before publication of a final rule and that the EIS

consider site-specific areas, not the region as a whole. Another

commenter stated that the Service needs to study how the listing may

affect the social, economic, and human environment. The public

involvement process should be designed to address concerns, to answer

questions, and to exchange information. Legal, custom, and cultural

concerns can be addressed only with adequate notice and time to

prepare. Another commenter stated that public notification was not

sufficient for the public hearings. Commenters requested that more

hearings be held, especially in rural counties. Another commenter

suggested a hearing be held in Dallas/Fort Worth or Austin based on the

assumption that the wildlife of the United States belongs to all

people, not just to those in the areas that are involved.

Service response: As the proposed and final rules state (see

National Environmental Policy Act section), the Service has determined

that an environmental assessment, as defined under the authority of the

National Environmental Policy Act of 1969, need not be prepared in

connection with regulations adopted pursuant to section 4(a) of the

Act. Additionally, the Act precludes addressing the social, economic,

and human environment when deciding to list a species.

The April 13, 1993 (58 FR 19216), notice announcing the 90-day

finding on the petition to list the species requested public comments

and biological data on the status of the jaguar from any and all

interested or knowledgeable parties. On July 13, 1994, (59 FR 35674)

the Service published a proposed rule to extend endangered status to

the jaguar in the United States. Again, the Service sought biological

data and comments from the public. In addition, as recounted in the

Background section, three public hearings were conducted by the Service

as another avenue to obtain relevant information. The Service believes

that it has provided interested parties opportunity to present any

relevant information.

Issue 21: Listing of the jaguar is not necessary since the

conservation intent of the Act has been addressed through the CA. The

Arizona Game and Fish Department and New Mexico Department of Game and

Fish have coordinated the development of an interstate/

intergovernmental ``Conservation Assessment and Strategy for the Jaguar

in Arizona and New Mexico'' and ``Memorandum of Agreement for the

Conservation of the Arizona Jaguar.'' These documents, collectively

referred to as the Conservation Agreement (CA), reflect the commitments

of the agencies to expedite the development and implementation of

conservation measures needed for the Arizona jaguar in the United

States in order to meet the conservation intent of the Act and preclude

the need for listing. The primary feature of the CA is the designation

of the Jaguar Conservation Team and coordination and implementation of

conservation measures through the cooperation of State, Federal,

Tribal, and other governmental agencies, and partnerships with private

landowners and organizations.

The CA addresses the fact that the conservation of the jaguar and

its habitat in Arizona and New Mexico is linked to key Federal and

private land ownership patterns, identifies both short and long-term

objectives, and sets various time frames to complete species and

habitat activities. The State wildlife agencies will reallocate funds

and personnel to implement this CA, or will aggressively seek new funds

for implementation. The CA addresses risks to the survival and recovery

of the Arizona jaguar in the United States through a combination of

measures. These measures include: (a) Gathering and disseminating

information on status, biology (including habitat use), and management

needs; (b) identifying habitat suitable for population maintenance or

expansion in Arizona and New Mexico; (c) allowing for management

flexibility; (d) creating strong private-public partnerships; and (e)

developing stronger legal disincentives for unlawful take. The State

wildlife agencies have committed to implementation of the CA regardless

of the listing status of the species.

Service Response: The Service acknowledges the conservation

benefits of the CA and the lead role of the State wildlife agencies in

the conservation and recovery of wildlife species within their

respective States. Through implementation of the CA there should be

many positive benefits to jaguar conservation. However, the efforts

under the CA are based on voluntary participation and it will take time

to realize these benefits to the level in which the jaguar is no longer

in danger of extinction through all or a portion of its range. As long

as the species' status meets the regulatory definition of endangered,

the Service has the statutory responsibility to list the species based

on biological considerations and analysis of threats. The CA developed

to this point in time will serve as the template for those protections

that will be necessary for the conservation and recovery of the species

subsequent to its listing.

Issue 22: Texas Parks and Wildlife Department evaluated the status

of the jaguar in that State and determined that, due to habitat

fragmentation, there was no longer any potential for the jaguar to

exist in Texas. Therefore, Texas Parks and Wildlife stated there was

neither the need to federally list nor to develop a CA for the jaguar

in Texas.

Service Response: Extirpation of a species from an area lends

evidence to a determination that a species' conservation status has

declined range wide and that listing is appropriate.

Issue 23: The Act has not been reauthorized, therefore, the Act is

no longer extant. Also, we live in a democracy. Do the majority of the

people want the jaguar listed? Another commenter stated that there is

no need for endangered species listings. They are a waste of time and

money and are based on pseudo-science.

Service response: Although Congress has not reauthorized the Act,

it continues to appropriate funds for its implementation. The Service,

by authority of the Secretary of the Interior, is still responsible for

implementing the Act. According to the Act, listing decisions are based

on the best scientific and commercial information available.

Summary of the Opinions of Independent Peer Reviewers

Three independent reviewers were contacted by the Service during

the comment period in order to obtain their comments, data, and

opinions regarding the pertinent scientific or commercial data and

assumptions relating to taxonomy, population status, and biological and

ecological information on the jaguar. The reviewers were E. Lendell

Cockrum (University of Arizona), David S. Maehr (Endangered Cats

Recovery Team), and Michael E. Tewes (Caesar Kleberg Wildlife Research

Institute, Texas A&M University). Responses were received from two of

the three reviewers.

One reviewer stated that because they are secretive, the status of

the jaguar in the United States is based largely on speculation. While

some of this speculation suggests some low level of reproduction may

have occurred in parts of the Southwest, it is more likely that most of

these animals represented dispersers or only sporadic breeders. Such a

pattern is to be expected at the fringe of a species' range where

habitat conditions, by definition, are sub-optimal relative to the

center of its range. That does not mean such

[[Page 39154]]

individuals are unimportant. They occupy habitat that serves as a

buffer to zones of regular reproduction, and they are potential

colonizers of vacant range. Such areas are important to maintaining

normal demographics and allowing for the possibility of range expansion

as environmental conditions improve.

Because knowledge of jaguar distribution and ecology involves much

speculation, there is no way to ascertain key elements of its habitat.

However, every effort should be made to describe the ecology of jaguars

in northern Mexico in order to understand where some of the records

originated and how individuals are finding their way to and from the

United States. Corridors and other patches of forest cover may indeed

be critical to the jaguar's continuance and possible range expansion in

the United States. Work must begin on describing jaguar habitat

requirements and dispersal characteristics through sign surveys and,

eventually, telemetry studies of the breeding population closest to the

United States. Enlisting the owners of significant tracts of private

land supporting endangered cats will be essential to jaguar

conservation if not all potential jaguar habitat is already on public

land that can be managed for them. Involving property owners very early

in the process will pay tremendous dividends down the road. Jaguar

recovery has much to gain from ranch owners in the southwest.

Another reviewer commented that wide-ranging, large carnivores such

as the jaguar travel long distances within their home range and often

use a wide variety of habitats. Simple occurrence of a jaguar in a

particular habitat does not necessarily convey information about the

quality of that particular habitat type. Because there are no

ecological studies indicating habitat preferences of jaguars within the

United States, an accurate description of important habitats would be

almost impossible.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, the Service has determined that the jaguar should be

classified as an endangered species in the United States. Procedures

found at section 4(a)(1) of the Act and regulations implementing the

listing provisions of the Act (50 CFR part 424) were followed. A

species may be determined to be endangered or threatened due to one or

more of the five factors described in section 4(a)(1). These factors

and their application to the jaguar (Panthera onca) are as follows:

A. The present or threatened destruction, modification, or

curtailment of its habitat or range. Clearing of habitat, destruction

of riparian areas, and fragmentation or blocking of corridors may

prevent jaguars from recolonizing previously inhabited areas. Although

there is currently no known resident population of jaguars in the

United States, wanderers from Mexico may cross the border and take up

residency in available habitat. (See Issue 10 for further information.)

B. Overutilization for commercial, recreational, scientific, or

educational purposes. In Arizona, the jaguar's gradual decline was

concurrent with predator control associated with the settlement of land

and the development of the cattle industry (Brown 1983, U.S. Fish and

Wildlife Service 1990). Lange (1960) summarized the jaguar records from

Arizona known up to that time. Between 1885 and 1959, the reports

consisted of 45 jaguars killed, 6 sighted, and 2 recorded by evidence

such as tracks and/or droppings.

Brown (1991) related that the accumulation of all known records

indicated a minimum of 64 jaguars were killed in Arizona after 1900.

When plotted at 10-year intervals, records of jaguars reported killed

in Arizona and New Mexico between 1900 and 1980 demonstrated a

``decline characteristic of an over-exploited resident population''

(Brown 1983). Brown (1983) argued that if the jaguars killed during

this period originated in Mexico, the numbers of killings should not

suggest a pattern but should rather be irregular and erratic.

Bailey (1905) listed seven reports of jaguars killed in Texas

between 1853 and 1903. Schmidly (1983) reported another jaguar shot in

Mills County in 1904. Taylor (1947) mentioned a jaguar killed near

Lyford, Willacy County, in 1912. Brown (1991) indicated jaguars were

common in Texas until 1870. The last reports from Texas were of

individuals killed in 1946 (San Benito, Cameron County) and 1948

(Kleburg County). Nowak (1975) identified killing of jaguars for

commercial sale of their furs as a factor in the extermination of a

substantial resident population in central Texas during the late 19th

century.

Although the demand for jaguar pelts has diminished, it still

exists along with the business of illegal hunting of jaguars. In 1992,

Arizona Game and Fish Department personnel infiltrated a ring of

wildlife profiteers. That operation resulted in the March 1993, seizure

of three jaguar specimens, of which one was allegedly taken from the

Dos Cabezas Mountains in Arizona in 1986. Two of the specimens had been

covertly purchased from the suspects. During the investigation, several

ties to Mexico jaguar hunting were discovered. Hounds bred and trained

in the United States were sold to Mexican nationals for the purpose of

hunting jaguars. Also, Mexican nationals prosecuted by the Service in

1989 for illegally importing jaguar pelts into the United States were

continuing the practice of providing jaguar hunts in Mexico (Terry B.

Johnson, Arizona Game and Fish Department, in litt., 1993).

C. Disease or predation. The Service is unaware of any known

diseases or predators that threaten the jaguar at this time.

D. The inadequacy of existing regulatory mechanisms.

State Regulations

Jaguars are being considered for inclusion on the Arizona Game and

Fish Department's list of ``Wildlife of Special Concern,'' and were

included on its previous list of ``Threatened National Wildlife of

Arizona.'' In general, violations of Arizona Game and Fish Laws

(Arizona Game and Fish Department 1991) are class 2 misdemeanors. The

Arizona Game and Fish Commission may, through criminal prosecution,

seek to recover a maximum of $750 for each endangered species

unlawfully taken, wounded, or killed. Special depredation permits may

be issued for jaguars.

Under the California Code of Regulations, it is prohibited to

import, transport, or possess jaguars. According to California Fish and

Game Code, Section 12011, such acts carry a maximum penalty of a

$30,000 fine, 1 year in jail, or both.

In Louisiana the jaguar receives no official protection from the

State (Fred Kimmel, Louisiana Department of Wildlife and Fisheries,

pers. comm., 1993).

In New Mexico, the jaguar is considered a ``restricted species'' on

the State's list of endangered species and subspecies. It is unlawful

to take, possess, transport, export, process, sell, or offer for sale a

jaguar in New Mexico. Violations are a misdemeanor and, upon

conviction, a person shall be fined $1,000 and imprisoned from 30 days

to 1 year.

The jaguar is listed as threatened by the State of Texas. It is

unlawful to take, possess, transport, export, process, sell or offer

for sale, or ship jaguars in Texas. However, some of the above actions

may be allowed for zoological gardens, and scientific, commercial, and

propagation

[[Page 39155]]

purposes with the proper permits. A first violation of the regulations

or a permit is a Texas Parks and Wildlife Code C misdemeanor which

carries a fine of $25 to $500 (Capt. Harold Oates, Texas Parks and

Wildlife, pers. comm., 1994).

In summary, although some States provide limited protection to the

jaguar, illegal taking continues to occur. None of the State penalties

for illegal taking are as stringent as the $50,000 fine and/or 1 year

in jail provided for endangered species under the Act. Thus, listing

the species under the Act results in protective measures beyond those

provided by the States.

Federal Protection

Prior to this final rule, the jaguar was listed under the Act as an

endangered species only from Mexico southward to include Central and

South America. It was not listed in the United States. Jaguars which

may have occurred in, or immigrated into, the United States were not

protected by the Act.

On July 1, 1975, the jaguar was included in Appendix I of CITES.

CITES is a treaty established to prevent international trade that may

be detrimental to the survival of plants and animals. Generally, both

import and export permits are required from the importing and exporting

countries before an Appendix I species may be shipped, and Appendix I

species may not be exported for primarily commercial purposes. CITES

permits may not be issued if the export will be detrimental to the

survival of the species or if the specimens were not legally acquired.

However, CITES does not prohibit the act of taking, possessing, or

transporting a jaguar within the United States and its territories.

The subspecies Panthera onca veraecrucis, with historical range in

Texas and eastern Mexico, is designated by the United States government

as a peripheral animal of concern in a provisional list for the Annex

of the Convention on Nature Protection and Wildlife Preservation in the

Western Hemisphere (Nowak, pers. comm., 1992). Panthera onca

arizonensis is not so designated. This Convention, as implemented by

Sections 2 and 8(A) of the Act, does not require the protection of

species listed. Therefore, neither P. o. veraecrucis nor P. o.

arizonensis are currently protected.

E. Other natural or manmade factors affecting its continued

existence. M-44 ejector devices with cyanide capsules are used by the

Animal Plant and Health Inspection Service, Animal Damage Control and

may be of threat to the jaguar (Terry B. Johnson, Arizona Game and Fish

Department, in litt., 1993). Jaguars may also be victims of traps

targeting other predators such as bears and cougars.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by this species in determining to make this rule

final. Based on this evaluation, the preferred action is to list the

jaguar (Panthera onca) as endangered throughout its range. The lack of

protection under the Act for jaguars in the United States was due to an

uncorrected technicality, rather than to any scientific information

that jaguars do not require protection. A decision to take no action

would exclude the jaguar in the United States from needed protection

pursuant to the Act. A decision to extend only threatened status would

not adequately express the drastic distributional decline of the

species and the continued jeopardy of any individuals in the United

States. Therefore, no action or listing as threatened would be contrary

to the intent of the Act.

Critical Habitat

Section 4(a)(3) of the Act, as amended, requires that, to the

maximum extent prudent and determinable, the Secretary propose critical

habitat at the time the species is proposed to be endangered or

threatened. The Service finds that designation of critical habitat is

not prudent for this species. The Service's regulations (50 CFR

424.12(a)(1)) state that designation of critical habitat is not prudent

when one or both of the following situations exist: (1) The species is

threatened by taking or other human activity, and identification of

critical habitat can be expected to increase the degree of such threat

to the species; or (2) such designation of critical habitat would not

be beneficial to the species.

As discussed in factor ``B'' above, a primary threat to the jaguar

in the United States is from taking. Jaguars are still in demand for

hunts and as trophies and pelts. A jaguar in Arizona was hunted and

killed in 1986 approximately 1 year after it was known to be in the

area and photographs confirmed another jaguar in New Mexico during

1996. Publication of detailed critical habitat maps and descriptions in

the Federal Register would likely make the species more vulnerable to

activities prohibited under section 9 of the Act. In addition, since

the primary threat to the species in the United States is direct taking

rather than habitat destruction, designation of critical habitat would

not lessen, and may increase, the primary threat to the jaguar.

Appropriate parties and landowners have been notified of the location

and importance of protecting this species' habitat. Identification of

this species' habitat preferences will be addressed through the

recovery process. Therefore, it is not prudent to designate critical

habitat for the jaguar.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

practices. Recognition through listing encourages and results in

conservation actions by Federal, State, and private agencies, groups,

and individuals. The Act provides for possible land acquisition and

cooperation with the States and authorizes recovery plans for all

listed species. The protection required of Federal agencies and the

prohibitions against taking and harm are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened and with respect to its critical

habitat, if any is being designated. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

part 402. Section 7(a)(4) requires Federal agencies to confer

informally with the Service on any action that is likely to jeopardize

the continued existence of a proposed species or result in destruction

or adverse modification of proposed critical habitat. If a species is

subsequently listed, section 7(a)(2) requires Federal agencies to

ensure that activities they authorize, fund, or carry out are not

likely to jeopardize the continued existence of such a species or to

destroy or adversely modify its critical habitat. If a Federal action

may affect a listed species or its critical habitat, the responsible

Federal agency must enter into consultation with the Service. Federal

actions that may affect the jaguar include clearing of habitat known to

have been occupied by jaguars and trapping or animal control activities

targeting the jaguar or other large predators.

The Act and its implementing regulations set forth a series of

general trade prohibitions and exceptions that apply to all threatened

wildlife. The prohibitions, codified at 50 CFR 17.21 and 17.31, in

part, make it illegal for any person subject to the jurisdiction of the

United States to take (includes harass,

[[Page 39156]]

harm, pursue, hunt, shoot, wound, kill, trap, or collect; or to attempt

any of these), import or export, ship in interstate commerce in the

course of commercial activity, or sell or offer for sale in interstate

or foreign commerce any listed species. It is also illegal to possess,

sell, deliver, carry, transport, or ship any such wildlife that has

been taken illegally. Certain exceptions apply to agents of the Service

and State conservation agencies.

The prohibitions of section 9 will not apply to jaguars which were

held in captivity or a controlled environment on December 28, 1973, or

the date of this publication, provided that such holding and any

subsequent holding of such jaguars was not in the course of a

commercial activity. For clarification, the pre-Act date is the date of

publication of the final rule listing the species; the jaguar will have

two pre-Act dates depending upon its origin. The Service considers

jaguars currently held in captivity in the United States to of

originated from parental stock outside of the United States and, thus,

their pre-Act date is December 28, 1973. Jaguars legally obtained in

the United States from the wild could be considered to be pre-Act if

obtained on or prior to the date of this rulemaking and not held in the

course of a commercial activity.

Permits may be issued to carry out otherwise prohibited activities

involving endangered wildlife species under certain circumstances.

Regulations governing permits are at 50 CFR 17.22. Such permits are

available for scientific purposes, to enhance the propagation or

survival of the species, and/or for incidental take in connection with

otherwise lawful activities. Requests for copies of the regulations

regarding listed wildlife and inquiries about prohibitions and permits

may be addressed to the Service's Southwest Regional Office, P.O. Box

1306, Albuquerque, New Mexico, 87103 (505/248-6666).

It is the policy of the Service (59 FR 34272) to identify to the

maximum extent practicable those activities that would or would not

constitute a violation of section 9 of the Act at the time of listing.

The intent of this policy is to increase public awareness of the effect

of listing on proposed or ongoing activities. The Service believes

that, based on the best available information, the following actions

will not result in a violation of section 9, provided these activities

are carried out in accordance with any existing regulations and permit

requirements:

1. Normal ranching activities, except predator control targeting

large cats which results in inadvertent trapping or mortality of a

jaguar.

2. Habitat clearing, except in areas where jaguars are known to

exist or have been known to exist.

3. Fencing or other property delineation.

4. If, when using dogs to tree mountain lions, a jaguar is

inadvertently chased and/or treed by the dogs, so long as the dogs are

called off upon realization that a jaguar is being chased.

The following activities would likely violate section 9 of the Act:

1. Any activity specifically prohibited by the Act (e.g., shooting,

hunting, trapping, etc.)

2. Intentional clearing or destruction of habitat known to be

occupied by jaguars.

3. Any activities that fall within the definition of harass and

harm. The Service has defined the terms harass and harm as follows:

Harass means an intentional or negligent act or omission which creates

the likelihood of injury to wildlife by annoying it to such an extent

as to significantly disrupt normal behavior patterns which include, but

are not limited to, breeding, feeding, or sheltering. Harm has been

defined as an act which actually kills or injures wildlife. Such acts

may include significant habitat modification or degradation when it

actually kills or injures wildlife by significantly impairing essential

behavioral patterns including breeding, feeding or sheltering.

4. Predator control activities targeting large cats that trap,

kill, or otherwise injure jaguars.

Contacts have been identified to assist the public in determining

whether a particular activity would be prohibited under section 9 of

the Act. In Arizona, contact the Field Supervisor in Phoenix (see

ADDRESSES section). In California, contact the Field Supervisor,

Carlsbad Field Office, 2730 Loker Avenue West, Carlsbad, California

92008 (619/431-9440). In Louisiana, contact the Field Supervisor,

Lafayette Field Office, 825 Kaliste Saloom, #102, Lafayette, Louisiana

70508 (318/264-6630). In New Mexico, contact the Supervisor, Ecological

Services Field Office, 2105 Osuna Road NE., Albuquerque, New Mexico

87113 (505/761-4525). In Texas, contact the Supervisor, Ecological

Services Field Office, 10711 Burnet Road, Suite 200, Hartland Bank

Building, Austin, Texas 78758 (512/490-0057).

National Environmental Policy Act

The Service has determined that Environmental Assessments and

EIS's, as defined under the authority of the National Environmental

Policy Act of 1969, need not be prepared in connection with regulations

adopted pursuant to section 4(a) of the Act, as amended. A notice

outlining the Service's reasons for this determination was published in

the Federal Register on October 25, 1983 (48 FR 49244).

Required Determinations

The Service has examined this regulation under the Paperwork

Reduction Act of 1995 and found it to contain no information collection

requirements.

References Cited

A complete list of all references cited herein is available on

request from the Field Supervisor, Arizona Ecological Services Field

Office (see ADDRESSES section).

Author: The primary authors of this final rule are William Austin

and Bruce Palmer of the Arizona Ecological Services Field Office (see

ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Section 17.11(h) is amended by revising the entry for ``Jaguar''

under MAMMALS in the List of Endangered and Threatened Wildlife to read

as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

[[Page 39157]]

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate

------------------------------------------------------ population where Critical Special

Historic range endangered or Status When listed habitat rules

Common name Scientific name threatened

--------------------------------------------------------------------------------------------------------------------------------------------------------

Mammals

* * * * * * *

Jaguar.......................... Panthera onca...... U.S.A. (AZ, CA, LA, NM, Entire........... E............ 5, 622 NA NA

TX), Mexico, Central

and South America.

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: July 14, 1997.

John G. Rogers,

Acting Director, Fish and Wildlife Service.

[FR Doc. 97-19208 Filed 7-21-97; 8:45 am]

BILLING CODE 4310-55-P