[Federal Register Volume 89, Number 59 (Tuesday, March 26, 2024)]
[Proposed Rules]
[Pages 20928-20939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05724]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2023-0151; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BG53
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Pygmy Three-Toed Sloth
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the pygmy three-toed sloth (Bradypus pygmaeus; hereafter ``pygmy
sloth''), an arboreal mammal species from Panama, as a threatened
species under the Endangered Species Act of 1973, as amended (Act).
This determination also serves as our 12-month finding on a petition to
list the pygmy sloth. After a review of the best available scientific
and commercial information, we find that listing the species is
warranted. Accordingly, we propose to list the pygmy sloth as a
threatened species with a rule issued under section 4(d) of the Act
(``4(d) rule''). If we finalize this rule as proposed, it will add this
species to the List of Endangered and Threatened Wildlife and extend
the Act's protections to the species.
DATES: We will accept comments received or postmarked on or before May
28, 2024. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by May 10, 2024.
ADDRESSES:
Written comments: You may submit comments by one of the following
methods:
[[Page 20929]]
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2023-0151,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-HQ-ES-2023-0151, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-HQ-ES-2023-0151.
FOR FURTHER INFORMATION CONTACT: Rachel London, Manager, Branch of
Delisting and Foreign Species, Ecological Services Program, U.S. Fish
and Wildlife Service, MS: ES, 5275 Leesburg Pike, Falls Church, VA
22041-3803; telephone 703-358-2171. Individuals in the United States
who are deaf, deafblind, hard of hearing, or have a speech disability
may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications
relay services. Individuals outside the United States should use the
relay services offered within their country to make international calls
to the point-of-contact in the United States. Please see Docket No.
FWS-HQ-ES-2023-0151 on https://www.regulations.gov for a document that
summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this species;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may be affecting the continued existence of the
species, which may include habitat destruction, modification, or
curtailment; overutilization; disease; predation; the inadequacy of
existing regulatory mechanisms, or other natural or manmade factors;
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species; and
(c) Existing regulations or conservation actions that may be
addressing threats to this species.
(3) Additional information concerning the historical and current
status of this species.
(4) Information on regulations that may be necessary and advisable
to provide for the conservation of the pygmy sloth and that we can
consider in developing a 4(d) rule for the species. In particular, we
seek information concerning the extent to which we should include any
of the section 9 prohibitions in the 4(d) rule or whether we should
consider any additional exceptions from the prohibitions in the 4(d)
rule.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act (16 U.S.C. 1533(b)(1)(A)) directs that determinations as to
whether any species is an endangered or a threatened species must be
made solely on the basis of the best scientific and commercial data
available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying 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. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Our final determination may differ from this proposal because we
will consider all comments we receive during the comment period as well
as any information that may become available after this proposal. Based
on the new information we receive (and, if relevant, any comments on
that new information), we may conclude that the species is endangered
instead of threatened, or we may conclude that the species does not
warrant listing as either an endangered species or a threatened
species. In addition, we may change the parameters of the prohibitions
or the exceptions to those prohibitions in the 4(d) rule if we conclude
it is appropriate considering comments and new information received.
For example, we may expand the prohibitions to include prohibiting
additional activities if we conclude that those additional activities
are not compatible with conservation of the species. Conversely, we may
establish additional exceptions to the prohibitions in the final rule
if we conclude that the activities would facilitate or are compatible
with the conservation and recovery of the species. In our final rule,
we will clearly explain our rationale and the basis for our final
decision, including why we made changes, if any, that differ from this
proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register at least 15 days before
[[Page 20930]]
the hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
On November 15, 2013, we received a petition from the Animal
Welfare Institute to add the pygmy sloth to the List of Endangered and
Threatened Wildlife. On June 9, 2014, we published in the Federal
Register (79 FR 32900) a 90-day finding that the petition presented
substantial scientific and commercial information indicating that the
petitioned action may be warranted; that document initiated a status
review for the pygmy sloth.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the pygmy sloth. The SSA team was composed of Service biologists, in
consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review in
listing actions under the Act, we solicited independent scientific
review of the information contained in the pygmy sloth SSA report. We
sent the SSA report to five independent peer reviewers and received
three responses. Results of this structured peer review process can be
found at https://www.regulations.gov at Docket No. FWS-HQ-ES-2023-0151.
In preparing this proposed rule, we incorporated the results of these
reviews, as appropriate, into the SSA report, which is the foundation
for this proposed rule.
Summary of Peer Reviewer Comments
As discussed above in Peer Review, we received comments from three
peer reviewers on the draft SSA report. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding the information contained in the SSA report. The
peer reviewers generally concurred with our methods and conclusions,
and provided additional information, clarifications, and suggestions,
including clarifications on terminology, additional literature on
phylogeny and diet, information on generation time, clarifications on
published correspondence, updates regarding the ongoing conservation
efforts for the pygmy sloth, clarification on the pygmy sloth's
inclusion in Appendix II of the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) (27 U.S.T. 1087),
and other editorial suggestions. No substantive changes to our analysis
and conclusions within the SSA report were deemed necessary, and peer
reviewer comments are addressed in version 1.1 of the SSA report
(Service 2023, entire).
I. Proposed Listing Determination
Background
The pygmy sloth, the smallest of the of four extant species of
three-toed sloths, is a tan-colored arboreal mammal species with a
near-white face and black stripes over the eyes. Adults weigh
approximately 3 kilograms (kg) (6.6 pounds (lb)) and measure about 500
millimeters (mm) (1.6 feet (ft)) in length. The species is most closely
related to the brown-throated three-toed sloth (B. variegatus;
hereafter ``brown-throated sloth''; Ruiz-Garcia et al. 2020, pp. 468-
470; Anderson and Handley 2001, pp. 9-15). The pygmy sloth was
originally separated taxonomically from the more widespread brown-
throated sloth (native to central America including mainland Panama and
northern South America) based on its consistently smaller size and
distinct skeletal structures (Anderson and Handley 2001, pp. 9-18).
Having only been described as a full species in 2001, there is little
detail available on the species' life history and habitat requirements.
Pygmy sloths are found only on the small Panamanian island Isla
Escudo de Veraguas (hereafter, ``Escudo''), which is 4.3 square
kilometers (km\2\) (1.7 square miles (mi\2\)) in area and lies about 18
kilometers (km) (11.2 miles (mi)) from the Panamanian mainland
(Anderson and Handley 2001, p. 5). About 2.5 percent of the island is
composed of red mangrove (Rhizophora mangle) thickets scattered along
the north coast, and the remainder of the island is a mixed species
tropical forest (Kaviar et al. 2012, pp. 1-3; Voirin 2015, p. 705;
Zoological Society of London (ZSL) 2017, p. 11). It is uncertain
whether sloths on Escudo are reliant on the mangroves or whether some
live entirely within the interior forest (Voirin 2015, p. 705). All
three-toed sloths are arboreal folivores; they consume leaves with
relatively low nutritional quality, necessitating physiological and
behavioral adaptations including limited movements and low muscle mass
(Anderson and Handley 2001, p. 2). Pygmy sloths have been observed
using at least 15 plant species (including mangroves) for food and
refuge, but it is not known which, if any, plant species they require
(Smith et al. 2021, unpaginated; Smith 2022, pers. comm.; Superina
2022, pers. comm.).
Few data exist specific to pygmy sloth reproduction and population
biology. Based on demographic data for three-toed sloths, it is
reasonable to conclude that an average generation time (or time between
birth of an individual and birth of its offspring) is approximately 6
to 10 years for pygmy sloths (Anderson and Handley 2002, p. 1051; Taube
et al. 2001, p. 184; Superina 2022, pers. comm.). Other three-toed
sloth species have only one offspring per pregnancy after gestation of
100-180 days (Benirschke 2008, p. 168; Taube 2001, p. 184). Longevity
and survivorship are little-known for three-toed sloths. Both genetic
data, although limited, and documentation of sloth movement into the
interior forest suggest that there is only a single population of the
species (ZSL 2017, p. 9; Voirin 2015, p. 705; Silva 2013, p. 138).
A thorough review of the taxonomy, life history, and ecology of the
pygmy sloth is presented in the SSA report (version 1.1; Service 2023,
pp. 1-8).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, we issued a final rule that revised 50 CFR 17.31 and 17.71
(84 FR 44753; hereinafter, ``the 2019 4(d) rule'') and ended the
``blanket rule'' option for application of section 9 prohibitions to
species newly listed as threatened after the effective date of those
regulatory revisions (September 26, 2019). Blanket rules had extended
the majority of the protections (all of the prohibitions that apply to
endangered species under
[[Page 20931]]
section 9 and additional exceptions to the prohibitions) to threatened
species, unless we issued an alternative rule under section 4(d) of the
Act for a particular species (i.e., a species-specific 4(d) rule). The
blanket rule protections continued to apply to threatened species that
were listed prior to September 26, 2019, without an associated species-
specific rule. Under the 2019 4(d) rule, the only way to apply
protections to a species newly listed as threatened is for us to issue
a species-specific rule setting out the protective regulations that are
appropriate for that species.
Our analysis for this decision applied the regulations that are
currently in effect, which include the 2019 revisions. However, we
proposed further revisions to these regulations on June 22, 2023 (88 FR
40742; 88 FR 40764). In case those revisions are finalized before we
make a final status determination for this species, we have also
undertaken an analysis of whether the decision would be different if we
were to apply those proposed revisions. We concluded that the decision
would have been the same if we had applied the proposed 2023
regulations. The analyses under both the regulations currently in
effect and the regulations after incorporating the June 22, 2023,
proposed revisions are included in our decision file.
The Act (16 U.S.C. 1531 et seq.) defines an ``endangered species''
as a species that is in danger of extinction throughout all or a
significant portion of its range, and a ``threatened species'' as a
species that is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range. The Act requires that we determine whether any species is an
endangered species or a threatened species because of any of the
following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
We considered the threats of habitat loss and degradation and
tourism and development, along with demographic factors of pygmy
sloths, and determined the foreseeable future to be approximately 30
years. This timeline for the foreseeable future is based on several
factors. The pygmy sloth generation time is estimated to be between 6
and 10 years, and similar species only have one offspring per
pregnancy. Thus, the demographic responses of the species to the
identified threats will materialize rapidly across just a few (<5)
generations. This determination of foreseeable future being 30 years
assumes enough time will pass for three to five generations of cohorts
to represent the population's resiliency to the identified threats.
Thirty years will also include time for climate change and development
to progress, as well as for conservation activities affecting Escudo to
develop. We are very confident in the predictions from our climate
models out to this time step. Although there is uncertainty in specific
rates and strengths of the impacts from development and tourism over
this time step, we are confident in the negative effects these threats
will have on pygmy sloth. We have information showing that nearby
coastal development plans are in place, roads providing access to the
coastlines are being built, and conservation capacity within the area
is limited. This information combined with demographics of this species
gives us confidence that within a 30-year future, these threats will
negatively impact the pygmy sloth. Therefore, based on the best
scientific and commercial data available, we conclude that over a
period of 30 years we can make reliable predictions that both the
future threats to the species and the species' response to those
threats are likely.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed
[[Page 20932]]
for listing as an endangered or threatened species under the Act.
However, it does provide the scientific basis that informs our
regulatory decisions, which involve the further application of
standards within the Act and its implementing regulations and policies.
To assess pygmy sloth viability, we used the three conservation
biology principles of resiliency, redundancy, and representation
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the
ability of the species to withstand environmental and demographic
stochasticity (for example, wet or dry, warm or cold years); redundancy
is the ability of the species to withstand catastrophic events (for
example, droughts, large pollution events); and representation is the
ability of the species to adapt to both near-term and long-term changes
in its physical and biological environment (for example, climate
conditions, pathogens). In general, species viability will increase
with increases in (or decrease with decreases in) resiliency,
redundancy, and representation (Smith et al. 2018, p. 306). Using these
principles, we identified the species' ecological requirements for
survival and reproduction at the individual, population, and species
levels, and described the beneficial and risk factors influencing the
species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time, which we then used to inform our regulatory decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket FWS-HQ-ES-
2023-0151 on https://www.regulations.gov.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
Based on the species' biology described above and in the SSA report
(version 1.1; Service 2023, pp. 1-8), the pygmy sloth requires food
plants, intact and connected forest habitats, and sufficient
conspecific individuals to find a mate. Threats to the sloth's
viability include the small extent (4.3 km\2\) of Escudo (as noted
above, pygmy sloths in the wild are found only on this one small island
in Panama), the naturally limited size of the species' single
population, direct and indirect impacts of tourism, habitat loss from
small-scale timber harvest, and habitat loss from sea-level rise and
erosion. Together, these threats make the pygmy sloth vulnerable to
random declines due to demographic stochasticity, environmental
catastrophes (e.g., storms), or both.
Threats
Small-scale but continuing harvest of red mangroves and interior
forest trees occurs on Escudo for construction of temporary huts used
by fishermen and for timber for tourism development in nearby regions
(Feller 2022, pers. comm.; ZSL 2017, p. 16). Continued forest loss
would eventually lead to a reduced pygmy sloth population, but the lack
of good information on pygmy sloth movements and densities, and their
relative reliance on mangrove versus interior forest, currently
prohibits determination of that threshold. Evidence from urban
populations of related species indicates three-toed sloth species may
be relatively resilient to life in small forest fragments (Service
2023, p. 6; Pool et al. 2016, pp. 26-30), but it is not clear whether
this extends to the pygmy sloth.
As the nearby coastal regions of the Bocas del Toro, Veraguas, and
Ngobe-Bugle provinces grow in popularity with local and especially
foreign tourists, so too has the volume of visits to Escudo and the
demand for infrastructure there (ZSL 2017, pp. 3, 17). Both Panamanians
and foreign investors are interested in developing the island and
nearby region for greater tourism commercialization (Smith 2021, pers.
comm.; Voirin 2021, pers. comm; Voirin 2015, pp. 706-707). Although
Panama has a mandatory environmental-impact-assessment process
(Gonzalez 2008, pp. 320-327), reviews are sometimes diminished by
demand for development (e.g., Gonzalez 2008, pp. 328-333) and often
initiated too late in a project's progression to revise plans or
prevent identified environmental harms (Jordan 2021, pers. comm.).
Consultations between government environmental authorities and
developers can be rapid and leave little room for adjustment of project
plans (Jordan 2021, pers. comm.).
Coastal development and construction of major roads and ports on
the nearby mainland has improved and will continue to improve
accessibility, making the trip to Escudo easier for many more people
(Smith 2021, pers. comm.; Voirin 2021, pers. comm.; Oberle and
Rodriguez 2020, entire; Bilbao 2017, unpaginated). While little is
known of the impacts of increased human presence on the island to pygmy
sloth behavior and ecology, increased tourism, particularly when
combined with inadequate regulatory mechanisms and enforcement, is
likely to lead to direct and indirect impacts on sloth viability
through up-close encounters, deforestation, habitat degradation,
increased litter and refuse, as well as the potential to increase the
introduction of pests, invasive species, and disease.
Desire for up-close or in-hand photos of pygmy sloths will likely
increase along with tourist visitation as global popularity of sloths
and demand for pet and zoo-housed sloths has grown tremendously (Voirin
2015, p. 706). The risk of sloths being illegally taken and smuggled
away from Escudo into domestic and international trade for personal and
commercial purposes is greater as more unregulated visitors reach the
island (Jordan 2021, pers. comm.; Voirin 2021, pers. comm.). This is
despite three-toed sloths rarely surviving more than several months in
captivity and a general lack of knowledge regarding husbandry
techniques for three-toed sloths (Voirin et al. 2014a, p. 2; Espinoza
and Cliffe 2013, p. 4; Raines 2005, p. 557).
While there is currently little legal international trade of the
species, there are several examples of known trade or attempts to trade
specimens of pygmy sloth. In 2013, 11 individuals were taken from the
wild with the intent to export to the United States for zoological
purposes, but the attempted export was stopped by protesters at the
Bocas del Toro Airport (Espinoza and Cliffe 2013, p. 4). These
individual pygmy sloths were soon after returned to Escudo, but at
least two died after reintroduction to the island (Superina 2022, pers.
comm.). Additionally, eight wild-sourced specimens of pygmy sloth
originating from Panama were legally exported from the United States to
Portugal for scientific purposes in 2015. In 2021, there was at least
one trade transaction of a specimen from China to the Netherlands, but
the involved specimen was recorded as a CITES pre-
[[Page 20933]]
Convention specimen, meaning the specimen was acquired (removed from
the wild or born in a controlled environment) before the date the
species was first included in the CITES Appendices (July 1, 1975), and
therefore we presume it to be a non-living specimen.
In general, Escudo and its surroundings have very limited
government presence or regulatory enforcement because of the remote
location and Escudo's semi-autonomous nature as an Indigenous-inhabited
territory that is administered by the Bocas del Toro province. While
smaller scale, Indigenous-led pygmy sloth tourism has been less
disruptive than the more industrial form (Voirin 2021, pers. comm.),
the permit requirements for tourists to visit the island are not
enforced (ZSL 2017, pp. 17-18). Small-scale tourist operations are also
likely to be outcompeted by larger organizations entering the market.
Although large-scale tourism has not yet reached Escudo as it has in
the surrounding archipelago, tourism is steadily increasing and tourist
boats arrive without notice and are reportedly damaging coral reefs and
sea turtle nesting grounds (Smith 2021, pers. comm.), indicative of at
least some operators' lack of concern for or knowledge about harm to
the island's ecology.
Finally, as sea levels rise due to global climate change, the
extent of the pygmy sloth's island habitats may be reduced
(Intergovernmental Panel on Climate Change (IPCC) 2019, pp. 6-13). Any
loss of habitat area on the already small island could reduce the
number of sloths supported on Escudo. Anecdotally, erosion has been
increasing on Escudo (Smith 2021, pers. comm.), although its extent is
not quantified, and it is not known whether this is due to sea-level
rise, storms, coastal deforestation, or other human-caused shoreline
disturbance.
Conservation Efforts and Regulatory Mechanisms
The Pygmy Sloth Conservation Project, established in 2011 by ZSL's
EDGE of Existence Program, is employing innovative and integrative
activities to support pygmy sloth and Escudo conservation (ZSL 2017,
entire). The project includes repeated population surveys, education of
Indigenous communities and schoolchildren regarding Escudo ecology and
the benefits of conservation, and cooperation with the Indigenous
government and local fishermen's association to develop a community-
based natural-resources-management program (ZSL 2017, pp. 19-27).
In June 2022, a workshop was held in collaboration with the
Ministry of Environment and the Ng[auml]be-Bugl[eacute] indigenous
authorities to develop a management plan for the conservation of the
pygmy sloth (Smith 2022, pers. comm.). The information generated by
this pygmy sloth conservation action plan is expected to also serve as
the basis for a future comprehensive management plan for Escudo, but as
of the publication of this proposed rule, that plan has not yet been
developed (Smith 2022, pers. comm.).
As of 2017, the national Ministry of the Environment could not
afford to visit Escudo independently (ZSL 2017, p. 18). Consequently,
there is no evidence available to the Service of enforcement of tourism
permit requirements or anti-littering and deforestation laws. Escudo is
designated as a protected area with management shared between the
national Ministry of the Environment and the local Indigenous council
(Voirin et al. 2014a, p. 5), but in 2012, the island was classified as
open to tourism, as well as scientific, entertainment, and cultural
development, so the benefits of the protected-area designation are
limited (Voirin 2015, pp. 706-707).
Pygmy sloths are included in CITES Appendix II, and international
trade in any specimen of the species requires inter alia a valid CITES
document that authorizes trade in the specimen to accompany the
specimen. CITES export permits may only be issued by the exporting
country's CITES Management Authority after a legal acquisition finding
is made by the exporting country's CITES Management Authority and a
non-detriment finding is made by the exporting country's CITES
Scientific Authority (for additional information about CITES
requirements, see 50 CFR part 23). On May 5, 2023, CITES Notification
No. 2023/057 notified all Parties to CITES that Panama has suspended
the issuance of all exports for specimens harvested from the wild for
commercial purposes, including the pygmy sloth, until scientific non-
detriment findings are completed (CITES 2023, unpaginated).
Current Condition
We assess the pygmy sloth's resiliency using two criteria: a
population-abundance criterion and a forest-extent criterion. We
incorporate the knowledge that the species has likely always been rare
by basing the population abundance criterion on detection of a
population decline in addition to considering absolute abundance, as
rarer species are at elevated risk of extinction even if the rarity is
natural (Flather and Sieg 2007, entire; Johnson 1998, entire). The
forest-extent criterion subsumes the pygmy sloth's requirements for
shelter, connectivity, and native food plants.
Considering these two resiliency criteria to account for the
species' demographic and habitat requirements, we determined thresholds
for high, medium, and low resiliency for the pygmy sloth. High
resiliency would indicate a high probability of population viability
with minimal to no declines in population size. Moderate resiliency
would indicate the species has experienced possible population
declines. Low resiliency would indicate low probability of population
viability with certain population decline.
While it is difficult to estimate the true size of the population
due to the challenge of detecting (and therefore counting) pygmy sloths
(Voirin 2015, p. 705), the most recent estimate of the total pygmy
sloth population size is 2,000-2,500 individuals, and the population is
estimated to be declining (Smith et al. 2022, unpaginated). The most
recently available population trend data from mangrove surveys in 2014-
2017 show no change in encounter rate of sloths, although the
uncertainty in abundance is large (ZSL 2017, p. 13). All estimates
indicate an extremely small number for an entire species (Smith et al.
2022, unpaginated).
Based on our assessment of deforestation from 2000-2020, only 0.11
percent of forested area in 2000 (totaling 3.95 km\2\) was deforested
by 2020 (data from Hansen et al. 2013, unpaginated; Service 2023, pp.
14-16). This assessment, however, is based on satellite data
(approximately 30 meters (m) resolution) and does not detect partial
clearings. While ground-based mapping of deforestation events shows
partial tree clearing has occurred on Escudo (ZSL 2017, p. 16) and a
recently published assessment indicates habitat degradation has
resulted in a continuing decline in the quality of pygmy sloth habitat
(Smith et al. 2022, unpaginated), our assessment indicates the forest
extent on Escudo remains mostly intact.
We assess that the pygmy sloth presently has moderate-to-high
resiliency, because the best available data indicate that pygmy sloth
abundance and the extent of habitat available on Escudo have not
considerably declined, but there remains substantial uncertainty in
these estimates.
With no captive individuals and only one wild population located on
an island less than 5 km\2\ in extent, the
[[Page 20934]]
pygmy sloth naturally has very low redundancy. Although very few large
cyclones and storms reach Escudo, it is seismically active, and loss of
the Escudo population would equate to global extinction.
With respect to representation, the isolation of a small number of
founder individuals when the pygmy sloth separated from the mainland
population of brown-throated sloths (likely around 9,000 years ago;
Anderson and Handley 2001, p. 4) would have created a natural genetic
bottleneck (a sharp decrease in a population's genetic diversity as a
result of a reduction in population size; Silva 2013, p. 138). Today,
genetic variation in the population is low (Silva et al. 2018, p.
1301), and because the pygmy sloth only inhabits Escudo, the habitats
it uses have little ecological variation. For these reasons, we
consider the pygmy sloth's ability to adapt to changing environments,
and thus its representation, to be naturally low.
Future Scenarios
Based on our assessment, we concluded that two important potential
threats to pygmy sloth viability in the future are: (1) increased
development and tourism around--and visitation to--the island, together
with the increased likelihood of illegal taking and trade in the
species, and (2) increased habitat loss and degradation caused by
deforestation and inundation of Escudo.
In the SSA report, we forecast the species' status under two
alternative future scenarios and six climate-change projections
(encompassing the uncertainty in sea-level-rise trajectories) to
determine how deforestation, the demand for sloths in the pet and
tourism market, and the potential for the already small extent of
Escudo to be further reduced by rising sea level would affect the
species. Specifically, our scenarios include ``status quo'' and
``improved conservation capacity'' alternatives to assess the potential
impacts of growing development and tourism. For each of these two
scenarios, we assessed six climate-change projections to help encompass
the uncertainty in sea-level-rise trajectories for the year 2050. This
is approximately 30 years from this proposed listing and would include
time for climate change and development to progress, as well as for
conservation activities affecting Escudo to grow. Based on studies from
other three-toed sloth species, this 30-year timeframe will include
around three to five generations of pygmy sloths (Anderson and Handley
2002, p. 1051).
Tourism and Development
A comprehensive understanding of the current and future conditions
of tourism on Escudo is currently lacking due to uncertainty in plans
for imminent coastal development and the inherent difficulty of
monitoring and enforcing regulations because of the remote nature of
the island and lack of funding for enforcement. Observational accounts
indicate that although large tourism operations are not currently
reaching Escudo, the amount of tourism arriving to the island is
increasing, and, if the planned development of the nearby remote
coastline occurs, tourism, including from large outfitters, will likely
increase in volume (Jordan 2021, pers. comm.; Smith 2021, pers. comm.;
Voirin 2021, pers. comm.).
International tourist visitation to Panama grew by 150 percent
between 2000 and 2008, and nature-based tourism is an increasing
portion of Panama's economy (Beaton and Hadzi-Vazkov 2017, pp. 23-29).
Tourism grew fast in the coastal and island regions of Bocas Del Toro
province (to which Escudo belongs) from the 1990s onwards, including
growing accessibility to vast stretches of beach and rainforest. For
instance, beginning in 2004 and continuing into at least 2017, a major
road was under construction from Santa Fe to the coastal city of
Calovebora in northern Veraguas province (Bilbao 2017, unpaginated).
The road's route is a major new access point to undeveloped areas
within easy boating distance of Escudo (Bilbao 2017, unpaginated).
Additionally, developers have for several years been amassing land
holdings in the regions near Escudo, and they may be planning for the
resale of lots for future homes and hotels (Jordan 2021, pers. comm).
As additional people move to and visit the region, the very strong
demand for sloths taken from the wild for tourists' ``sloth selfies''
or for sale into the pet trade (Greenfield 2020, unpaginated) will
likely impact pygmy sloths (Voirin 2021, pers. comm.; Jordan 2021,
pers. comm.). For example, other sloth species are illegally collected
from the wild in Colombia for hands-on tourism or illegal pet trade
(Gorder 2021, unpaginated; Moreno and Plese 2006, p. 12).
The General Law on Environment of the Republic of Panama (Article
23 of Law No. 41 (1998)) requires that public or private projects,
including tourism developments, be vetted through an environmental-
impact-assessment (EIA) process administered by the national Ministry
of the Environment (Gonzalez 2008, p. 324; Bethancourt 2000,
unpaginated). In practice, however, developers often do not file for an
EIA or do so very late in the project's progress, which makes
substantive changes to the project challenging (Jordan 2021, pers.
comm.). Consultations that do take place, particularly in remote
locations, are frequently cursory (Jordan 2021, pers. comm.).
By 2050 under the status quo alternative, if the lack of
environmental law enforcement capacity in the remote Escudo region (ZSL
2017, p. 18) continues, the limitations of Panama's EIA process are not
rectified, and the unplanned nature of regional development (Jordan
2021, pers. comm.) persists, modest to large declines in the species'
population are likely. These declines are likely due to the stresses of
increased visitation to Escudo (including up-close encounters), habitat
degradation, and illegal poaching to meet the demand for the pet and
zoo trade domestically and internationally.
If, on the other hand, the ongoing conservation efforts (see
Conservation Efforts and Regulatory Mechanisms, above) lead to improved
conservation capacity around Escudo, pygmy sloth population declines
would be less likely to occur. A future with improved conservation
capacity would include the regular presence of well-equipped
conservation officers from the national Ministry of the Environment or
Indigenous governments or both, and only sustainable, well-regulated
tourist visits to Escudo with no pygmy sloths captured or disturbed. A
completed management plan would include enforcement of specific
limitations on the volume and activities of tourists and others to
avoid pygmy sloth collection and deforestation. While ongoing work to
support pygmy sloth conservation (see Conservation Efforts and
Regulatory Mechanisms, above) indicates this is a possible future
scenario, given the historical and ongoing challenges of regulation and
enforcement on Escudo, this outcome is less likely than the status quo
scenario.
Loss of Habitat
Given its small island habitat, the pygmy sloth's viability is
sensitive to the potential for further reduction in the available areas
on Escudo, for example losses due to sea-level rise and deforestation.
To assess the impacts of sea-level rise, we used climate models
forecasting where land presently above water will be lost due to sea-
level rise. We used these data to project the extent of pygmy sloth
habitat expected to be lost under different climate-change
[[Page 20935]]
scenarios. Specifically, we included six alternative climate
trajectories defined by the (1) degree of greenhouse-gas emissions
reduction achieved (three representative concentration pathways (RCPs),
RCPs 2.6, 4.5, and 8.5) by 2050, and (2) two different rates of
Antarctic ice-sheet melting, an uncertain but potentially major
contributor to global sea-level rise (Kulp and Strauss 2018, p. 2; Kopp
et al. 2017, entire; Kopp et al. 2014, entire).
The RCPs are Intergovernmental Panel on Climate Change (IPCC)
scenarios that describe alternative future trajectories of greenhouse
gas emissions and that are used to drive climate-model projections in
response to higher or lower future emission rates (IPCC 2014, p. 8). In
the RCP names, the values 2.6, 4.5, and 8.5 refer to the rate at which
energy is trapped by Earth's atmosphere in watts per square meter
(m\2\) at the height of warming for the given scenario; thus, RCP 8.5
is a scenario indicating faster warming than RCP 4.5. RCP 8.5 is
considered a ``high-emission business as usual scenario,'' i.e.,
towards the upper end of what might occur without climate-change
mitigation policy (Riahi et al. 2011, p. 54). RCP 4.5 is based on a
lower-emissions future in which renewable energy, greater energy
efficiency, and carbon capture and storage are more widely implemented
(Thomson et al. 2011, p. 77). RCP 2.6 represents stringent cuts to
greenhouse gas emissions sufficient to limit warming to 2 degrees
Celsius ([deg]C) (van Vuuren et al. 2011, entire).
The extent of Escudo habitat inundated by 2050 ranged from 0.04
percent (RCP 2.6, no rapid West Antarctic melting) to 0.08 percent (RCP
8.5, rapid West Antarctic melting; Service 2023, p. 20). Even if we
assumed for the most pessimistic scenario (0.08 percent of the entire
island inundated) that the entirety of the inundated habitat was
concentrated within the 2.5 percent of the island that is mangrove
forests, only slightly more than 3 percent of the mangroves would be
inundated. However, although inundation is focused on coastal edges of
the island and includes some locations on the north coast where
mangroves grow, part of the inundation will occur outside the
mangroves, so the 3 percent figure is likely an overestimate. Moreover,
red mangroves can possibly keep pace with sea-level rise by growing
taller and accumulating peat beneath their stilt roots (Mckee et al.
2007, entire; Feller 2021, pers. comm.). The interior forest habitat is
more extensive than mangroves (ZSL 2017, p. 11) and, when compared to
estimates for mangrove forests, less interior forest habitat is
projected to be lost as a result of sea-level rise. Thus, we project
that loss of habitat due to sea-level rise will be at most 3 percent
across mangrove and interior forest habitats.
Deforestation presents a second potential cause of habitat loss and
degradation. Forecasting future rates of deforestation is difficult due
to the discrepancies between ground observations and satellite data of
deforestation, as well as the unknown impact that, if implemented,
development plans and potential subsequent tourism increases might have
on deforestation. Under a status quo future, deforestation may continue
as it occurs now, at low and consistent levels, or it may increase,
given the interest expressed by some Indigenous people in living on
Escudo and the expansion of tourism and associated infrastructure
development on the island. With improved conservation capacity,
including increased monitoring and enforcement of land use of the
island, we project that deforestation levels would be low.
Overall Future Resiliency, Redundancy, and Representation
Regardless of the climate-change scenario, if the conservation
capacity around Escudo does not improve (i.e., if it remains at the
status quo), the total resilience of the pygmy sloth is projected to
decline, likely falling into the moderate-to-low-resiliency category,
and potentially falling into the low-resiliency category. If
conservation capacity is improved around Escudo, we project that the
pygmy sloth's resiliency could improve despite the species' natural
rarity. However, high uncertainty exists in both current and future
resiliency due to the limited data available on population abundance,
rates of deforestation, and effects of tourism and development on the
species. Additionally, given the historical and current lack of
regulatory and enforcement capacity, outcomes under the improved-
conservation-capacity scenario, although possible, are less likely than
those under the status quo scenario.
Redundancy is not projected to change under any of the future
scenarios; we expect there to remain only the single Escudo population.
Representation may remain the same or may decrease if tourists arriving
at the relatively accessible island edge and beaches stress pygmy
sloths into retreating into the interior forest and reduce the habitat
types pygmy sloths use, further limiting the species' adaptive
potential.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative-effects analysis.
Determination of Pygmy Sloth's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of an endangered
species or a threatened species because of any of the following
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we determined that the future viability of the pygmy sloth
will be reduced as ongoing and future development on the mainland
nearest Escudo increases accessibility to the island, likely reducing
the pygmy sloth's resiliency, which along with its naturally low
redundancy and representation will likely compromise the security of
the species' continued existence within the foreseeable future.
The pygmy sloth is a narrow endemic species with a small population
and very limited range. Given the pygmy sloth's rarity and low genetic
diversity, the species has naturally low
[[Page 20936]]
representation and redundancy. While tourism and small-scale timber
harvest are ongoing in the species' range, the pygmy sloth is not
currently at risk of extinction because it maintains moderate-to-high
resiliency with a variety of age classes and evidence of reproduction,
and while it is naturally restricted to the very small island of
Escudo, its habitat requirements do not currently appear to be
limiting. Although the species currently is not at risk of extinction,
threats to the species are expected to increase in the foreseeable
future. Ongoing and anticipated development on the nearby mainland will
facilitate increased access to Escudo, increasing disturbance to pygmy
sloths through deforestation, up-close interactions, and illegal taking
and smuggling into domestic and international trade for personal and
commercial purposes. While there are regulatory mechanisms in place to
protect against these threats, enforcement in the species' relatively
remote range is limited and is likely inadequate to reduce the impacts
of increased tourism and deforestation. The current population of the
pygmy sloth is estimated to be declining, and the likely increase of
threats in the foreseeable future will reduce the species' viability to
a point that it is likely to lack sufficient resiliency,
representation, and redundancy for its continued existence to be
secure.
Thus, after assessing the best available information, we conclude
that the pygmy sloth is not currently in danger of extinction but is
likely to become in danger of extinction within the foreseeable future
throughout all of its range due to increased threats from tourism and
development that will likely lead to habitat loss and degradation
(Factor A), overutilization in a variety of forms from increasing human
interactions (Factor B), and the inadequacy of existing regulatory
mechanisms (Factor D).
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. The court in Center for Biological Diversity v. Everson,
435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of
the Final Policy on Interpretation of the Phrase ``Significant Portion
of Its Range'' in the Endangered Species Act's Definitions of
``Endangered Species'' and ``Threatened Species'' (hereafter ``Final
Policy''; 79 FR 37578, July 1, 2014) that provided if the Service
determines that a species is threatened throughout all of its range,
the Service will not analyze whether the species is endangered in a
significant portion of its range.
Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for pygmy sloth, we choose to address the
status question first--we consider information pertaining to the
geographic distribution of both the species and the threats that the
species faces to identify portions of the range where the species may
be endangered.
We evaluated the range of the pygmy sloth to determine if the
species is in danger of extinction now in any portion of its range. The
pygmy sloth is a narrow endemic that functions as a single, contiguous
population and occurs entirely within a 4.3 km\2\ island. Thus, there
is no biologically meaningful way to break this limited range into
portions, and the threats that the species faces affect the species
throughout its entire range. As a result, there are no portions of the
species' range where the species has a different biological status from
its rangewide biological status. Therefore, we conclude that there are
no portions of the species' range that warrant further consideration,
and the species is not in danger of extinction in any significant
portion of its range, and we determine that the species is likely to
become in danger of extinction within the foreseeable future throughout
all of its range. This does not conflict with the courts' holdings in
Desert Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d
1011, 1070-74 (N.D. Cal. 2018), and Center for Biological Diversity v.
Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017), because, in reaching
this conclusion, we did not apply the aspects of the Final Policy,
including the definition of ``significant'' that those court decisions
held to be invalid.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the pygmy sloth meets the Act's definition
of a threatened species. Therefore, we propose to list the pygmy sloth
as a threatened species in accordance with sections 3(20) and 4(a)(1)
of the Act.
Available Conservation Measures
The purposes of the Act are to provide a means whereby the
ecosystems upon which endangered species and threatened species depend
may be conserved, to provide a program for the conservation of such
endangered species and threatened species, and to take such steps as
may be appropriate to achieve the purposes of the treaties and
conventions set forth in the Act. Under the Act, a number of steps are
available to advance the conservation of species listed as endangered
or threatened species. As explained further below, these conservation
measures include: (1) recognition, (2) recovery actions, (3)
requirements for Federal protection, (4) financial assistance for
conservation programs, and (5) prohibitions against certain activities.
Recognition through listing results in public awareness, as well as
in conservation by Federal, State, Tribal, and local agencies, foreign
governments, private organizations, and individuals. The Act encourages
cooperation with the States and other countries and calls for recovery
actions to be carried out for listed species.
Section 7 of the Act is titled, ``Interagency Cooperation,'' and it
mandates all Federal action agencies to use their existing authorities
to further the conservation purposes of the Act and to ensure that
their actions are not likely to jeopardize the continued existence of
listed species or adversely modify critical habitat. Regulations
implementing section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat.
A Federal ``action'' that is subject to the consultation provisions
of section 7(a)(2) of the Act is defined in our implementing
regulations at 50 CFR 402.02 as all activities or programs of any kind
authorized, funded, or carried out, in whole or in part, by Federal
[[Page 20937]]
agencies in the United States or upon the high seas. With respect to
pygmy sloth, no known actions require consultation under section
7(a)(2) of the Act. Given the regulatory definition of ``action,''
which clarifies that it applies to activities or programs ``in the
United States or upon the high seas,'' the pygmy sloth is unlikely to
be the subject of section 7 consultations, because the entire life
cycle of the species occurs in terrestrial areas outside of the United
States and the species is unlikely to be affected by U.S. Federal
actions. Additionally, no critical habitat will be designated for the
species because, under 50 CFR 424.12(g), we will not designate critical
habitat within foreign countries or in other areas outside of the
jurisdiction of the United States.
Section 8(a) of the Act (16 U.S.C. 1537(a)) authorizes the
provision of limited financial assistance for the development and
management of programs that the Secretary of the Interior determines to
be necessary or useful for the conservation of endangered or threatened
species in foreign countries. Sections 8(b) and 8(c) of the Act (16
U.S.C. 1537(b) and (c)) authorize the Secretary to encourage
conservation programs for foreign listed species, and to provide
assistance for such programs, in the form of personnel and the training
of personnel.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the extent known at the time a
species is listed, specific activities that will not be considered
likely to result in violation of section 9 of the Act. To the extent
possible, activities that will be considered likely to result in
violation will also be identified in as specific a manner as possible.
The intent of this policy is to increase public awareness of the effect
of a proposed listing on proposed and ongoing activities within the
range of the species proposed for listing. Although most of the
prohibitions in section 9 of the Act apply to endangered species,
sections 9(a)(1)(G) and 9(a)(2)(E) of the Act also prohibit the
violation of any regulation issued under section 4(d) of the Act
pertaining to any threatened species of fish or wildlife, or threatened
species of plant, respectively. Section 9(g) additionally makes it
illegal to attempt to commit, to solicit another to commit, or to cause
to be committed any act prohibited under Section 9, including
violations of a 4(d) rule. Section 4(d) of the Act grants the Secretary
broad discretion to prohibit with respect to any threatened species any
act prohibited under Section 9(a)(1), in the case of fish or wildlife,
or section 9(a)(2), in the case of plants. Section 4(d) also directs
the Secretary to promulgate protective regulations that are necessary
and advisable for the conservation of threatened species. As a result,
we interpret our policy to mean that, when we list a species as a
threatened species, to the extent possible, we identify activities that
will or will not be considered likely to result in violation of the
protective regulations under section 4(d) for that species.
At this time, we are unable to identify specific activities that
would or would not be considered likely to result in violation of
section 9 of the Act beyond those included in the descriptions of
proposed prohibitions and exceptions we would establish by protective
regulation under section 4(d) of the Act (see II. Proposed Rule Issued
Under Section 4(d) of the Act, below).
We may issue permits to carry out otherwise prohibited activities
involving endangered and threatened wildlife species under certain
circumstances. Regulations governing permits for threatened species are
codified at 50 CFR 17.32, and general Service permitting regulations
are codified at 50 CFR part 13. With regard to threatened wildlife, a
permit may be issued for scientific purposes, to enhance the
propagation or survival of the species, for incidental take in
connection with otherwise lawful activities, for economic hardship, for
zoological exhibition, for educational purposes, and for special
purposes consistent with the purposes of the Act. The statute also
contains certain exemptions from the prohibitions, which are found in
sections 9 and 10 of the Act.
The Service may also register persons subject to the jurisdiction
of the United States through its captive-bred wildlife (CBW) program if
certain established requirements are met under the CBW regulations (see
50 CFR 17.21(g)). Through a CBW registration, the Service may allow a
registrant to conduct certain otherwise prohibited activities under
certain circumstances to enhance the propagation or survival of the
affected species, including take; export or re-import; delivery,
receipt, carriage, transport, or shipment in interstate or foreign
commerce in the course of a commercial activity; or sale or offer for
sale in interstate or foreign commerce. A CBW registration may
authorize interstate purchase and sale only between entities that both
hold a registration for the taxon concerned. The CBW program is
available for species having a natural geographic distribution not
including any part of the United States and other species that the
Service Director has determined to be eligible by regulation. The
individual specimens must have been born in captivity in the United
States.
Separate from its proposed listing as a threatened species, as a
CITES-listed species, all international trade of pygmy sloths by
persons subject to the jurisdiction of the United States must also
comply with CITES requirements pursuant to section 9, paragraphs (c)
and (g), of the Act and to 50 CFR part 23. Applicable wildlife import/
export requirements established under section 9, paragraphs (d), (e),
and (f), of the Act; the Lacey Act Amendments of 1981 (16 U.S.C. 3371
et seq.); and 50 CFR part 14 must also be met for pygmy sloth imports
and exports. Questions regarding whether specific activities with pygmy
sloths would constitute a violation of section 9 of the Act should be
directed to the Service's Division of Management Authority
([email protected]; 703-358-2104).
II. Proposed Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. The U.S. Supreme Court has noted that
statutory language similar to the language in section 4(d) of the Act
authorizing the Secretary to take action that she ``deems necessary and
advisable'' affords a large degree of deference to the agency (see
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in
the Act to mean the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary. Additionally, the second sentence of section 4(d) of the Act
states that the Secretary may by regulation prohibit with respect to
any threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence grants particularly broad
discretion to the Service when adopting one or more of the prohibitions
under section 9.
The courts have recognized the extent of the Secretary's discretion
under this
[[Page 20938]]
standard to develop rules that are appropriate for the conservation of
a species. For example, courts have upheld, as a valid exercise of
agency authority, rules developed under section 4(d) that included
limited prohibitions against takings (see Alsea Valley Alliance v.
Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington Environmental
Council v. National Marine Fisheries Service, 2002 WL 511479 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to [her] with regard to the permitted activities for those species.
[She] may, for example, permit taking, but not importation of such
species, or [she] may choose to forbid both taking and importation but
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this proposed 4(d) rule would promote
conservation of the pygmy sloth by ensuring that activities undertaken
with the species by any person under the jurisdiction of the United
States are also supportive of the conservation efforts undertaken for
the species in Panama, as well as under the CITES Appendix-II listing.
The provisions of this proposed rule are one of many tools that we
would use to promote the conservation of the pygmy sloth. This proposed
4(d) rule would apply only if and when we make final the listing of the
pygmy sloth as a threatened species.
As discussed above under Summary of Biological Status and Threats,
we have concluded that the pygmy sloth is likely to become in danger of
extinction within the foreseeable future primarily due to the impacts
that nearby development and subsequent increased tourism will have on
the species and its habitat. Under the proposed 4(d) rule, prohibitions
and provisions that apply to endangered wildlife under section 9(a)(1)
of the Act would help minimize threats that could cause further
declines in the species' status.
Provisions of the Proposed 4(d) Rule
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the pygmy
sloth's conservation needs. As discussed previously in Summary of
Biological Status and Threats, we have concluded that the pygmy sloth
is likely to become in danger of extinction within the foreseeable
future primarily due to the impacts that nearby development and
subsequent increased tourism will have on the species and its habitat.
Section 4(d) requires the Secretary to issue such regulations as she
deems necessary and advisable to provide for the conservation of each
threatened species and authorizes the Secretary to include among those
protective regulations any of the prohibitions that section 9(a)(1) of
the Act prescribes for endangered species. We find that, if finalized,
the protections, prohibitions, and exceptions in this proposed rule as
a whole satisfy the requirement in section 4(d) of the Act to issue
regulations deemed necessary and advisable to provide for the
conservation of the pygmy sloth.
The protective regulations we are proposing for the pygmy sloth
incorporate prohibitions from section 9(a)(1) to address the threats to
the species. The prohibitions of section 9(a)(1) of the Act, and
implementing regulations codified at 50 CFR 17.21, make it illegal for
any person subject to the jurisdiction of the United States to commit,
to attempt to commit, to solicit another to commit or to cause to be
committed any of the following acts with regard to any endangered
wildlife, unless they are otherwise authorized or permitted: (1) import
into, or export from, the United States; (2) take within the United
States, within the territorial sea of the United States, or on the high
seas; (3) possess, sell, deliver, carry, transport, or ship, by any
means whatsoever, any such wildlife that has been taken illegally; (4)
deliver, receive, carry, transport, or ship in interstate or foreign
commerce, by any means whatsoever and in the course of commercial
activity; or (5) sell or offer for sale in interstate or foreign
commerce. Certain exceptions to these prohibitions apply to employees
or agents of the Service, the National Marine Fisheries Service, other
Federal land management agencies, and State conservation agencies.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. This
protective regulation would provide for the conservation of the pygmy
sloth by including all of these prohibitions because the pygmy sloth is
at risk of extinction within the foreseeable future and putting these
prohibitions in place would help to decrease synergistic, negative
effects from other ongoing or future threats.
As discussed above under Summary of Biological Status and Threats,
deforestation, tourism and development around Escudo, and collection
for tourism, pet, and zoo demand are affecting the status of the pygmy
sloth. Prohibiting take (which applies to take within the United
States, within the territorial sea of the United States, or upon the
high seas) would indirectly contribute to conservation of the species
in its range country of Panama by helping to prevent attempts to
captive-breed the species to establish a domestic market for trade of
pygmy sloths. Collection of the species for tourism, zoo, and pet
demand poses an ongoing threat to the species due to its limited range
and small population size. Further regulating import and export to,
from, and through the United States and foreign commerce by persons
subject to the jurisdiction of the United States could deter breeding
and demand for the species and help conserve the species by eliminating
the United States as a potential market for illegally collected and
traded pygmy sloths.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise-prohibited activities, including those described above. The
regulations that govern permits for threatened wildlife state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species. These include permits
issued for the following purposes: for scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act (50 CFR
17.32).
There are other standard exceptions to the prohibitions included in
the proposed 4(d) rule for the pygmy sloth (see Proposed Regulation
Promulgation, below), and the statute also contains certain exemptions
from the prohibitions, which are found in sections 9 and 10 of the Act.
If the species-specific 4(d) rule is finalized as proposed, the import
exemption for threatened wildlife listed in Appendix II of CITES (50
CFR 17.8; section 9(c)(2) of the Act) would not apply to this species.
A threatened species import permit under 50 CFR 17.32 would be required
for the importation of all specimens of pygmy sloth. Further, as noted
above, we may also authorize certain activities associated with
conservation breeding
[[Page 20939]]
under CBW registrations. We recognize that captive breeding of wildlife
can support conservation, for example by producing animals that could
be used for reintroductions. We are not aware of any captive-breeding
programs of pygmy sloths for this purpose. The proposed 4(d) rule would
apply to all live pygmy sloths and dead pygmy sloth parts and products
and supports conservation management efforts for pygmy sloths in the
wild in Panama.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (42 U.S.C. 4321 et seq.) need not be prepared
in connection with listing a species as an endangered or threatened
species under the Endangered Species Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244).
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Branch of Delisting and Foreign Species (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Branch
of Delisting and Foreign Species.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.11, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by adding an entry for ``Sloth, pygmy three-toed''
in alphabetical order under MAMMALS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
Mammals
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Sloth, pygmy three-toed.......... Bradypus pygmaeus.. Wherever found..... T [Federal Register
citation when
published as a
final rule]; 50
CFR 17.40(v).\4d\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.40 by adding paragraph (v) to read as follows:
Sec. 17.40 Special rules--mammals.
* * * * *
(v) Pygmy three-toed sloth (Bradypus pygmaeus).
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to the pygmy three-toed sloth. Except as
provided under paragraph (v)(2) of this section and Sec. Sec. 17.4 and
17.5, it is unlawful for any person subject to the jurisdiction of the
United States to commit, to attempt to commit, to solicit another to
commit, or cause to be committed, any of the following acts in regard
to this species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (c)(4) for
endangered wildlife.
(iii) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(iv) Conduct activities as authorized by a captive-bred wildlife
registration under Sec. 17.21(g) for endangered wildlife.
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-05724 Filed 3-25-24; 8:45 am]
BILLING CODE 4333-15-P