American Alligator in the Columbus Zoo in Ohio. Photograph Attribution: By Postdlf, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=2073819

March 15, 2021

Pamela Hall Scruggs, Chief

Division of Management Authority

U.S. Fish and Wildlife Service

5275 Leesburg Pike, MS: IA

Falls Church, VA 22041–3803

Re: Endangered and Threatened Wildlife and Plants; Regulations Pertaining to the American Alligator (Alligator mississippiensis); [Docket No. FWS–HQ–IA–2021–0004; FF09A30000–212–FXIA16710900000] RIN 1018–BF60

Dear Ms. Scruggs:

The Environmental Review Workshop (http://www.envreview.org/) has reviewed the above-proposed rule change and has identified the following issues on which we would appreciate further comment or clarification.

1)    The petition is primarily based on the assumption that an administrative error occurred in framing the 1986 proposal to update the American alligator’s conservation status and the trade regulations for hides, meat, or any other alligator part. This update required that under 50 CFR § 17.42(a)(2)(ii)(B) “Any hide, meat or other part may be sold or otherwise transferred only in accordance with the laws and regulations of the State in which the taking occurs and the State in which the sale or transfer occurs. As the FWS did not explain the 1987 Final Rule, it is impossible to determine the rationale for the change. This may have been an error as contended by the petitioner. Another logical explanation is that it was designed to bring hide transactions under the same framework as that applied to other American alligator products. Please explain why the FWS in supporting the petition tacitly supports the contention that an error was made in revising the legislation. Is there any evidence to support this?

2)    In your decision that the petitioned change is necessary and advisable, you indicate that the more restrictive rules that are the basis for the current petition are rendered void due to the Supremacy Clause of the U.S. Constitution. However, under the ESA Section 6f, ‘Any State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this Act or in any regulation which implements this Act but not less restrictive than the prohibitions so defined.’ On this basis, the rationale for citing a violation of the Supremacy Clause is unclear. The ESA allows for State and tribal regulations to be more restrictive than those in the ESA (but not less). So if the original legislation is more restrictive than the ESA, where is the Supremacy Clause violation? We would appreciate further clarification from the FWS on this issue.

3)    We have several concerns, based on the scientific literature, that future threats to alligator populations are not adequately considered in the assessment of the petition. For example:

• Genetic diversity in the species is low and suggests a relatively recent post-glacial recovery in the population without genetic diversification. Could low diversity decrease the ability of the species to adapt to rapid environmental change? This vulnerability is of particular concern related to recent, rapid climate change. https://pubmed.ncbi.nlm.nih.gov/12461811/

• Rapid temperature increases will likely shift the viable habitat range northwards. Southern habitats may become unusable, and there is no guarantee that available habitat is accessible at the current northern limits for alligator distribution to allow northward expansion. https://nri.tamu.edu/publications/peer-reviewed-publications/2018/genetic-consequences- and-management-implications-of-climate-change-for-the-american-alligator-alligatormississippiensis/

• Alligator sex ratios are temperature-dependent. In the face of rapid environmental temperature changes, skewed sex ratios may reduce alligator populations’ resilience to climate change. https://royalsocietypublishing.org/doi/full/10.1098/rspb.2020.0210

• Alligators are vulnerable to seawater infiltration associated with sea-level rise and storm-associated flooding. These effects may increase with climate change. https://pubmed.ncbi.nlm.nih.gov/29776996/#:~:text=American%20alligator%20(Alligator%20mississippiensis)%20habitats,saltwater%20intrusion%20into%20freshwater%20habitats . The combination of low genetic diversity, temperature-driven sex-determination, and habitat range shifts point to increased future vulnerability for alligator populations. If so, is this a reasonable time to loosen trade restrictions for alligator products, and will regulations that currently promote the sustainable take of alligators be adequate in the future? We would appreciate your response to these points.

4)    The American alligator has the ESA classification “threatened due to similarity of appearance.” Regulation of American alligator harvest and trade in the animals, their skins, and products made from them is, therefore, part of an effort to prevent the illegal take and trafficking of endangered “look-alike” reptiles. This rationale for regulation still holds even if American alligator populations are robust. In the background for the assessment, the FWS states: ‘Although it can be difficult to identify the species in products manufactured from crocodilian species, and this situation can pose a problem for law enforcement, over the more than 30 years that the provision in question has been in place, we have no reason to believe that this provision at 50 CFR 17.42(a)(2)(ii)(B) has added to the conservation benefits provided by other provisions in the current American alligator 4(d) rule. Further, the first phrase in the sentence at 50 CFR 17.42(a)(2)(ii)(B) pertaining to “the laws and regulations of the State or Tribe in which the taking occurs” is largely redundant, as it restates what is already stated earlier in 50 CFR 17.42(a)(2)(ii).’ The statement ‘we have no reason to believe’ is vague. Are there any data available to support this statement? Is the FWS confident that relaxation in regulations will not lead to increased take and trade of other crocodilians? Will there be any long-term monitoring to assess the effects of a regulatory change if it occurs?

5)    The FWS also states in the background section: ‘The conditional language in 50 CFR 17.42 (a)(2)(ii)(B) may be inhibiting interstate commerce that has developed since the American alligator was first reclassified under the Act and which provides funding to support crocodilian conservation and helps States and Tribes address threats to these populations. Confusion caused by this provision concerning the interaction between Federal, State, and Tribal rules and regulations could deter protection of American alligator habitat, upsetting regulatory protocols that have been in place for decades, and thereby undermining the conservation of this and other crocodilian species under section 4(d) of the Act.’ Given that the 1987 Final rule has been in place for over three decades, can the FWS point to any information suggesting that confusion has arisen from the rule during this time that has inhibited interstate commerce or deterred habitat protection?

When responses to these comments are available, please email them to us at This email address is being protected from spambots. You need JavaScript enabled to view it..

Sincerely,

David Ellerby, Ph.D.

Sr. Reviewer (Associate in Massachusetts)

Sydney James, B.S.

Reviewer (Associate in Massachusetts)

Environmental Review Workshop

(Environmental Review, Inc., a 501(c)(3) nonprofit public benefit organization)

1792 Rogers Avenue

San Jose, California  95112