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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]

# AGENCY: 

Fish and Wildlife Service, Interior.

# ACTION: 

Notice of determination.

# 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/​      ( print 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, Cha                                        vez 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                           ( print 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 Lo                                        pez Gonza                                        lez 2005, Brown and Lo                                        pez Gonza                                        lez 2000, Brown and Lo                                        pez Gonza                                        lez 2001, Carrillo                     *et al.*                     2007, Cavalcanti 2008, Ceballos                     *et al.*                     2006, Cha                                        vez and Ceballos 2006, Cha                                        vez                     *et al.*                     2007a, Cha                                        vez                     *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, Nu                                        xntilde;ez                     *et al*. 2002, Oropeza Herna                                        ndez                     *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 Comisio                                        n Nacional de a                                        reas 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:                          ( print 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]

BILLING CODE S