Endangered and Threatened Wildlife and Plants; 90-Day Findings on Petitions To Delist U.S. Captive Populations of the Scimitar-Horned Oryx, Dama Gazelle, and Addax, 58084-58086 [2012-23019]
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Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Proposed Rules
EPA has determined that this
proposed rule will not have
disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because it increases the level of
environmental protection for all affected
populations without having any
disproportionately high and adverse
human health or environmental effects
on any population, including any
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ODP and low or no GWP. The avoided
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and result in human health and
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List of Subjects in 40 CFR Part 82
Environmental protection,
Administrative practice and procedure,
Air pollution control, Reporting and
recordkeeping requirements.
Dated: September 11, 2012.
Lisa P. Jackson,
Administrator.
[FR Doc. 2012–23136 Filed 9–18–12; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–HQ–ES–2012–0077;
4500030115]
Endangered and Threatened Wildlife
and Plants; 90-Day Findings on
Petitions To Delist U.S. Captive
Populations of the Scimitar-Horned
Oryx, Dama Gazelle, and Addax
Fish and Wildlife Service,
Interior.
ACTION: Notice of 90-day petition
findings and initiation of status review.
AGENCY:
We, the U.S. Fish and
Wildlife Service (‘‘Service’’), announce
90-day findings on two petitions to
remove the U.S. captive-bred and U.S.
captive populations of three antelope
species, the scimitar-horned oryx (Oryx
dammah), dama gazelle (Gazella dama),
and addax (Addax nasomaculatus),
from the List of Endangered and
Threatened Wildlife as determined
under the Endangered Species Act of
1973, as amended (Act or ESA). Based
on our review, we find that the petitions
present substantial information
indicating that delisting the U.S. captive
animals or U.S. captive-bred members of
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SUMMARY:
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these species may be warranted.
Therefore, with the publication of this
notice, we are initiating a review of the
status of the U.S. captive members of
these species to determine if delisting
the U.S. captive specimens is warranted.
Based on the status review, we will
issue a 12-month finding on these two
petitions, which will address whether
the petitioned action is warranted, as
provided in section 4(b)(3)(B) of the Act.
DATES: The findings announced in this
document were made on September 19,
2012.
ADDRESSES: These findings are available
on the Internet at https://
www.regulations.gov at Docket Number
FWS–HQ–ES–2012–0077. Supporting
documentation we used in preparing
these findings is available for public
inspection, by appointment, during
normal business hours at the U.S. Fish
and Wildlife Service, 4401 North Fairfax
Drive, Room 420, Arlington, VA 22203.
Please submit any new information,
materials, comments, or questions
concerning these findings to the above
street address.
FOR FURTHER INFORMATION CONTACT:
Janine Van Norman, Chief, Branch of
Foreign Species, Endangered Species
Program, U.S. Fish and Wildlife Service,
4401 North Fairfax Drive, Room 420,
Arlington, VA 22203; telephone 703–
358–2171. If you use a
telecommunications device for the deaf
(TDD), call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Background
Section 4(b)(3)(A) of the Act (16
U.S.C. 1531 et seq.) requires that we
make a finding on whether a petition to
list, delist, or reclassify a species
presents substantial scientific or
commercial information indicating that
the petitioned action may be warranted.
We are to base this finding on
information provided in the petition,
supporting information submitted with
the petition, and information otherwise
available in our files. To the maximum
extent practicable, we are to make this
finding within 90 days of our receipt of
the petition, and publish our notice of
the finding promptly in the Federal
Register.
Our standard for substantial scientific
or commercial information within the
Code of Federal Regulations (CFR) with
regard to a 90-day petition finding is
‘‘that amount of information that would
lead a reasonable person to believe that
the measure proposed in the petition
may be warranted’’ (50 CFR 424.14(b)).
If we find that substantial scientific or
commercial information was presented,
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we are required to promptly conduct a
species status review, which we
subsequently summarize in our 12month finding.
Petition History
On June 29, 2010, we received two
petitions, one dated June 29, 2010, from
Nancie Marzulla, submitted on behalf of
the Exotic Wildlife Association (EWA),
and one dated June 28, 2010, from Anna
M. Seidman submitted on behalf of
Safari Club International and Safari
Club International Foundation (SCI).
The SCI petitioner requested that the
‘‘U.S. captive populations’’ of three
antelope species, the scimitar-horned
oryx (Oryx dammah), dama gazelle
(Gazella dama), and addax (Addax
nasomaculatus), be removed from the
Federal List of Endangered and
Threatened Wildlife (List) under the
Act. The SCI petitioner also requested
that we ‘‘correct the Endangered Species
Act listing of scimitar-horned oryx,
dama gazelle, and addax to specify that
only the populations in the portion of
their range outside of the United States
are classified as endangered.’’ The EWA
petitioner requested that the ‘‘U.S.
captive-bred populations’’ of these same
three species be removed from the List.
Both petitions indicated that removal or
delisting of the U.S. captive or U.S.
captive-bred individuals of these
species was warranted pursuant to 50
CFR 424.11(d)(3) because the Service’s
interpretation of the original data that
these species are endangered in their
entirety was in error. EWA’s petition
contained an additional ground for
recommending delisting of the ‘‘U.S.
captive-bred populations’’ of these
species on the basis that these
‘‘populations’’ have recovered pursuant
to 50 CFR 424.11(d)(2). Both petitions
clearly identified themselves as such
and included the requisite identification
information for the petitioners, as
required by 50 CFR 424.14(a).
Previous Federal Action(s)
Two subspecies of the dama gazelle,
the Mhorr gazelle (Gazella dama mhorr)
and Rio de Oro dama gazelle (G. d.
lozanoi) were listed as endangered in
their entirety, i.e. wherever found, on
June 2, 1970 (35 FR 8491). On
November 5, 1991, we published in the
Federal Register (56 FR 56491) a
proposed rule to list the scimitar-horned
oryx, addax, and dama gazelle as
endangered in their entireties. We reopened the comment period on the
proposed rule to request information
and comments from the public on June
8, 1992 (57 FR 24220), July 24, 2003 (68
FR 43706), and again on November 26,
2003 (68 FR 66395).
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Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Proposed Rules
On February 1, 2005 (70 FR 5117), we
announced a proposed rule and notice
of availability of a draft environmental
assessment to add new regulations
under the Act to govern certain
activities with U.S. captive-bred
scimitar-horned oryx, addax, and dama
gazelle, should they become listed as
endangered. The proposed rule covered
U.S. captive-bred live animals,
including embryos and gametes, and
sport-hunted trophies, and would
authorize, under certain conditions,
certain otherwise prohibited activities
that enhance the propagation or survival
of the species. The ‘‘otherwise
prohibited activities’’ were take; export
or re-import; delivery, receipt, carrying,
transport, or shipment in interstate or
foreign commerce, in the course of a
commercial activity; or sale or offering
for sale in interstate or foreign
commerce. In the proposed rule, we
found that the scimitar-horned oryx,
addax, and dama gazelle are dependent
on captive breeding and activities
associated with captive breeding for
their conservation, and that activities
associated with captive breeding within
the United States enhance the
propagation or survival of these species.
We accepted comments on this
proposed rule until April 4, 2005.
On September 2, 2005, we published
a final rule listing the scimitar-horned
oryx, addax, and dama gazelle as
endangered in their entirety (70 FR
52319). On September 2, 2005, we also
added a new regulation (70 FR 52310)
at 50 CFR 17.21(h) that excluded the
U.S. captive-bred animals of these three
species, as described above, from certain
prohibitions under the Act. The
promulgation of the regulation at 50
CFR 17.21(h) was challenged as
violating section 10 of the Act and the
National Environmental Policy Act (42
U.S.C. 4321 et seq.), first in both the
U.S. District Court for the Northern
District of California and the U.S.
District Court for the District of
Columbia, but then transferred and
consolidated in the U.S. District Court
for the District of Columbia (see Friends
of Animals v. Ken Salazar and Cary v.
Gould, 626 F. Supp. 2d 102 (D.D.C.
2009)). The Court found that the rule for
the three antelope species violated
section 10(c) of the Act by not providing
the public notice of and an opportunity
to comment on activities being carried
out with U.S. captive specimens of these
three antelope species. On June 22,
2009, the Court remanded the rule to the
Service for action consistent with its
opinion. To comply with the Court’s
order, we published a proposed rule on
July 7, 2011 (76 FR 39804), to remove
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the regulation at 50 CFR 17.21(h), thus
eliminating the exclusion for U.S.
captive-bred scimitar-horned oryx,
addax, and dama gazelle from certain
prohibitions under the Act. Under the
proposed rule, any person who intended
to conduct an otherwise prohibited
activity with U.S. captive-bred scimitarhorned oryx, addax, or dama gazelle
would need to qualify for an exemption
or obtain authorization for such activity
under the Act and applicable
regulations. On January 5, 2012, we
published a final rule (77 FR 431)
removing the regulation at 50 CFR
17.21(h).
As part of planned reintroduction
projects, captive-bred individuals of the
three antelope species have been
released into fenced, protected areas in
Tunisia, Morocco, and Senegal. These
animals may be released into the wild
when adequately protected habitat is
available. However, continued habitat
loss and wanton killing have made
reintroduction nonviable in most cases
(70 FR 52319).
For more information on the scimitarhorned oryx, dama gazelle, and addax,
see our final listing rule for these
species (70 FR 52319; September 2,
2005).
Species Information
The scimitar-horned oryx, dama
gazelle, and addax are each native to
several countries in northern Africa.
Although previously widespread in the
region, populations have been greatly
reduced primarily as a result of habitat
loss, uncontrolled killing, and the
inadequacy of regulatory mechanisms
(70 FR 52319). Estimated numbers of
individuals in the wild are extremely
low. The oryx is believed to be
extirpated in the wild, the addax
numbers fewer than 300, and the dama
gazelle numbers fewer than 500. All
three species are listed in Appendix I of
the Convention on International Trade
in Endangered Species of Wild Fauna
and Flora (CITES). The International
Union for Conservation of Nature
(IUCN) Red List categorizes the oryx as
‘‘extinct in the wild,’’ and the dama
gazelle and addax as ‘‘critically
endangered’’ (IUCN Species Survival
Commission (SSC) Antelope Specialist
Group 2008; Newby and Wacher 2008 in
IUCN Redlist 2012; Newby et al. 2008 in
IUCN Redlist 2012). All three species
are listed under the Act as endangered
in their entireties (see 50 CFR 17.11(h)).
The Sahara Sahel Interest Group
(SSIG) estimates that there are
approximately 4,000 to 5,000 scimitarhorned oryx, 1,500 addax, and 750
dama gazelle in captivity worldwide (70
FR 52319). These include at least 1,550
scimitar-horned oryx and 600 addax
held in managed breeding programs in
several countries around the world. We
are unaware of information indicating
numbers of dama gazelle currently held
in managed breeding programs. In
addition to individuals of these species
held in managed breeding programs,
captive individuals are held in private
collections and on private game farms
and ranches in the United States and the
Middle East (IUCN SSC Antelope
Specialist Group 2008; Newby and
Wacher 2008 in IUCN Redlist 2012;
Newby et al. 2008 in IUCN Redlist 2012;
70 FR 52310).
Standards for Evaluating Information
in the Petitions
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Section 4 of the Act (16 U.S.C. 1533)
and its implementing regulations at 50
CFR Part 424 set forth the procedures
for adding a species to, or removing a
species from, the Federal Lists of
Endangered and Threatened Wildlife
and Plants. A species may be
determined to be an endangered or
threatened species due to one or more
of the five factors described in section
4(a)(1) of the Act:
(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.
We must consider these same five
factors in delisting a species as they
relate to the definitions of endangered
and threatened species. We may delist
a species according to 50 CFR 424.11(d)
only if the best available scientific and
commercial data indicate that the
species is neither endangered nor
threatened for the following reasons:
(1) The species is extinct;
(2) The species has recovered and is
no longer endangered or threatened; or
(3) The best scientific or commercial
data available at the time the species
was classified, or the interpretation of
such data, were in error.
In considering a petition under
section 4(b)(3) of the Act, we generally
evaluate the information presented in
the petition, along with information
available in our files, on threats to the
species. But in this instance, first we
must evaluate whether SCI and EWA
have submitted valid petitions to add,
remove, or reclassify a ‘‘species’’ as that
term is defined in the Act. Our
evaluation is presented below.
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Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Proposed Rules
Evaluation of the Information in the SCI
and EWA Petitions
As previously mentioned, SCI
requests delisting of the ‘‘U.S. captive
populations’’ of the three antelope
species based on the assertion that the
Service committed ‘‘errors’’ in the
interpretation of the best scientific and
commercial data available at the time of
the 2005 determination to list the
scimitar-horned oryx, dama gazelle, and
addax as endangered in their entirety.
SCI also requests that we ‘‘correct the
Endangered Species Act listing of
scimitar-horned oryx, dama gazelle, and
addax to specify that only the
populations in the portion of their range
outside of the United States are
classified as endangered.’’ EWA
requests delisting of the U.S. captivebred populations of the three antelope
species on the basis that the Service’s
interpretation of the original data for the
listings was also in error, and in
addition asserts that captive-bred
animals of the three species that are
held in the United States are recovered.
Essentially, both petitioners request
separate designation, or legal status,
under the Act for captive animals held
within the United States from that of
members of the same taxonomic species
located in the wild or held in captivity
elsewhere around the world.
The Service completed its listing
determination for the three antelope
species in 2005. In that rulemaking
process, the Service found that a
differentiation in the listing status of
captive U.S. specimens of these
antelopes was not appropriate (70 FR
52319). While the Service does not have
an absolute policy or practice with
respect to whether it can differentiate
the listing status of captive and wild
specimens of the same species, we
generally have included wild and
captive animals together when listing
species. Nevertheless, petitioners assert
that the treatment by the Service of
chimpanzees in 1992 warrants similar
treatment now for these antelope
species. In that 1992 rulemaking, the
Service uplisted chimpanzees in the
wild to endangered, while retaining the
prior status of threatened for those in
captivity. That 1992 action preceded the
adoption by the Service and the
National Marine Fisheries Service of the
Distinct Population Segment (DPS)
Policy (61 FR 4722, February 7, 1996)
and case law that has developed under
the DPS Policy, such as the decision in
Alsea Valley v. Evans (161F. Supp. 2d
1154 (D.OR)). Nonetheless, because the
Service has no absolute policy or
practice as to whether it can
differentiate the listing status of wild
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and captive specimens of the same
species, a reasonable person could
conclude that the petitioned action may
be warranted.
www.regulations.gov and upon request
from the Branch of Foreign Species (see
FOR FURTHER INFORMATION CONTACT).
Finding
We find that the two petitions contain
substantial information that the
petitioned action may be warranted. It is
important to note that the ‘‘substantial
information’’ standard for a 90-day
finding is in contrast to the Act’s ‘‘best
scientific and commercial data’’
standard that applies to a 12-month
finding as to whether a petitioned action
is warranted. A 90-day finding is not a
status assessment of the species and
does not constitute a status review
under the Act. Our final determination
as to whether a petitioned action is
warranted is not made until we have
completed a thorough status review of
the captive antelopes covered by these
petitions, which is conducted following
a 90-day finding that a petition presents
substantial scientific or commercial
information indicating that the
petitioned action may be warranted
(‘‘substantial 90-day finding’’). Because
the Act’s standards for 90-day and 12month findings are different, as
described above, a substantial 90-day
finding does not necessarily mean that
the 12-month finding will conclude that
the Service has the discretion to treat
such specimens differently, or that the
petitioned action is warranted. It does,
however, mean that the Service will be
able to consider this question in more
depth and detail. In addition, the
Service will be able to consider the
question of the appropriate status of
U.S. captive members of the three
antelope species at the same time as it
considers the status of captive
chimpanzees in completing a separate
12-month finding on a petition to
eliminate the separate ESA
classification of captive and wild
chimpanzees. The substantial 90-day
finding on the chimpanzee petition was
published September 1, 2011 (76 FR
54423), and a document to reopen the
comment period was published
November 1, 2011 (76 FR 67401).
With this substantial 90-day finding,
we are initiating a rangewide status
review of the captive antelopes covered
by the petitions, and, once it is
completed, we will make a finding on
whether delisting the U.S. captive
specimens of any of these species is
warranted. This finding fulfills any
obligation under 16 U.S.C. 1533(b)(3)(A)
and the regulations at 50 CFR 424.14(b).
The primary authors of this notice are
the staff of the Branch of Foreign
Species (see FOR FURTHER INFORMATION
CONTACT).
References Cited
A complete list of references cited is
available on the Internet at https://
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Author
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: September 12, 2012.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2012–23019 Filed 9–18–12; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 600
[Docket No. 120425420–2420–01]
RIN 0648–BB92
Fisheries of the United States; National
Standard 1 Guidelines; Reopening of
Public Comment Period
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Advance notice of proposed
rulemaking; reopening of public
comment period.
AGENCY:
NMFS is reopening the
comment period on the Advance Notice
of Proposed Rulemaking (ANPR)
published on May 3, 2012, on potential
adjustments to the National Standard 1
Guidelines, one of 10 national standards
for fishery conservation and
management contained in Section 301
of the Magnuson-Stevens Fishery
Conservation and Management Act. The
current comment period is scheduled to
end on September 15, 2012. Because of
the importance of NS1 to U.S. fishery
management and the complexity of the
issues, NMFS feels reopening the
comment period will provide for a fuller
range of public input on the NS1
Guideline issues. The comment period
will close on October 12, 2012.
DATES: The comment period for the
ANPR was published on May 3, 2012
(77 FR 26238), and closed on September
15, 2012. The comment period will
reopen on September 16, 2012, and
remain open through October 12, 2012.
SUMMARY:
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]]>Agencies
[Federal Register Volume 77, Number 182 (Wednesday, September 19, 2012)]
[Proposed Rules]
[Pages 58084-58086]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23019]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2012-0077; 4500030115]
Endangered and Threatened Wildlife and Plants; 90-Day Findings on
Petitions To Delist U.S. Captive Populations of the Scimitar-Horned
Oryx, Dama Gazelle, and Addax
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition findings and initiation of status
review.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (``Service''), announce
90-day findings on two petitions to remove the U.S. captive-bred and
U.S. captive populations of three antelope species, the scimitar-horned
oryx (Oryx dammah), dama gazelle (Gazella dama), and addax (Addax
nasomaculatus), from the List of Endangered and Threatened Wildlife as
determined under the Endangered Species Act of 1973, as amended (Act or
ESA). Based on our review, we find that the petitions present
substantial information indicating that delisting the U.S. captive
animals or U.S. captive-bred members of these species may be warranted.
Therefore, with the publication of this notice, we are initiating a
review of the status of the U.S. captive members of these species to
determine if delisting the U.S. captive specimens is warranted. Based
on the status review, we will issue a 12-month finding on these two
petitions, which will address whether the petitioned action is
warranted, as provided in section 4(b)(3)(B) of the Act.
DATES: The findings announced in this document were made on September
19, 2012.
ADDRESSES: These findings are available on the Internet at https://www.regulations.gov at Docket Number FWS-HQ-ES-2012-0077. Supporting
documentation we used in preparing these findings is available for
public inspection, by appointment, during normal business hours at the
U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420,
Arlington, VA 22203. Please submit any new information, materials,
comments, or questions concerning these findings to the above street
address.
FOR FURTHER INFORMATION CONTACT: Janine Van Norman, Chief, Branch of
Foreign Species, Endangered Species Program, U.S. Fish and Wildlife
Service, 4401 North Fairfax Drive, Room 420, Arlington, VA 22203;
telephone 703-358-2171. If you use a telecommunications device for the
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.
SUPPLEMENTARY INFORMATION:
Background
Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires
that we make a finding on whether a petition to list, delist, or
reclassify a species presents substantial scientific or commercial
information indicating that the petitioned action may be warranted. We
are to base this finding on information provided in the petition,
supporting information submitted with the petition, and information
otherwise available in our files. To the maximum extent practicable, we
are to make this finding within 90 days of our receipt of the petition,
and publish our notice of the finding promptly in the Federal Register.
Our standard for substantial scientific or commercial information
within the Code of Federal Regulations (CFR) with regard to a 90-day
petition finding is ``that amount of information that would lead a
reasonable person to believe that the measure proposed in the petition
may be warranted'' (50 CFR 424.14(b)). If we find that substantial
scientific or commercial information was presented, we are required to
promptly conduct a species status review, which we subsequently
summarize in our 12-month finding.
Petition History
On June 29, 2010, we received two petitions, one dated June 29,
2010, from Nancie Marzulla, submitted on behalf of the Exotic Wildlife
Association (EWA), and one dated June 28, 2010, from Anna M. Seidman
submitted on behalf of Safari Club International and Safari Club
International Foundation (SCI). The SCI petitioner requested that the
``U.S. captive populations'' of three antelope species, the scimitar-
horned oryx (Oryx dammah), dama gazelle (Gazella dama), and addax
(Addax nasomaculatus), be removed from the Federal List of Endangered
and Threatened Wildlife (List) under the Act. The SCI petitioner also
requested that we ``correct the Endangered Species Act listing of
scimitar-horned oryx, dama gazelle, and addax to specify that only the
populations in the portion of their range outside of the United States
are classified as endangered.'' The EWA petitioner requested that the
``U.S. captive-bred populations'' of these same three species be
removed from the List. Both petitions indicated that removal or
delisting of the U.S. captive or U.S. captive-bred individuals of these
species was warranted pursuant to 50 CFR 424.11(d)(3) because the
Service's interpretation of the original data that these species are
endangered in their entirety was in error. EWA's petition contained an
additional ground for recommending delisting of the ``U.S. captive-bred
populations'' of these species on the basis that these ``populations''
have recovered pursuant to 50 CFR 424.11(d)(2). Both petitions clearly
identified themselves as such and included the requisite identification
information for the petitioners, as required by 50 CFR 424.14(a).
Previous Federal Action(s)
Two subspecies of the dama gazelle, the Mhorr gazelle (Gazella dama
mhorr) and Rio de Oro dama gazelle (G. d. lozanoi) were listed as
endangered in their entirety, i.e. wherever found, on June 2, 1970 (35
FR 8491). On November 5, 1991, we published in the Federal Register (56
FR 56491) a proposed rule to list the scimitar-horned oryx, addax, and
dama gazelle as endangered in their entireties. We re-opened the
comment period on the proposed rule to request information and comments
from the public on June 8, 1992 (57 FR 24220), July 24, 2003 (68 FR
43706), and again on November 26, 2003 (68 FR 66395).
[[Page 58085]]
On February 1, 2005 (70 FR 5117), we announced a proposed rule and
notice of availability of a draft environmental assessment to add new
regulations under the Act to govern certain activities with U.S.
captive-bred scimitar-horned oryx, addax, and dama gazelle, should they
become listed as endangered. The proposed rule covered U.S. captive-
bred live animals, including embryos and gametes, and sport-hunted
trophies, and would authorize, under certain conditions, certain
otherwise prohibited activities that enhance the propagation or
survival of the species. The ``otherwise prohibited activities'' were
take; export or re-import; delivery, receipt, carrying, transport, or
shipment in interstate or foreign commerce, in the course of a
commercial activity; or sale or offering for sale in interstate or
foreign commerce. In the proposed rule, we found that the scimitar-
horned oryx, addax, and dama gazelle are dependent on captive breeding
and activities associated with captive breeding for their conservation,
and that activities associated with captive breeding within the United
States enhance the propagation or survival of these species. We
accepted comments on this proposed rule until April 4, 2005.
On September 2, 2005, we published a final rule listing the
scimitar-horned oryx, addax, and dama gazelle as endangered in their
entirety (70 FR 52319). On September 2, 2005, we also added a new
regulation (70 FR 52310) at 50 CFR 17.21(h) that excluded the U.S.
captive-bred animals of these three species, as described above, from
certain prohibitions under the Act. The promulgation of the regulation
at 50 CFR 17.21(h) was challenged as violating section 10 of the Act
and the National Environmental Policy Act (42 U.S.C. 4321 et seq.),
first in both the U.S. District Court for the Northern District of
California and the U.S. District Court for the District of Columbia,
but then transferred and consolidated in the U.S. District Court for
the District of Columbia (see Friends of Animals v. Ken Salazar and
Cary v. Gould, 626 F. Supp. 2d 102 (D.D.C. 2009)). The Court found that
the rule for the three antelope species violated section 10(c) of the
Act by not providing the public notice of and an opportunity to comment
on activities being carried out with U.S. captive specimens of these
three antelope species. On June 22, 2009, the Court remanded the rule
to the Service for action consistent with its opinion. To comply with
the Court's order, we published a proposed rule on July 7, 2011 (76 FR
39804), to remove the regulation at 50 CFR 17.21(h), thus eliminating
the exclusion for U.S. captive-bred scimitar-horned oryx, addax, and
dama gazelle from certain prohibitions under the Act. Under the
proposed rule, any person who intended to conduct an otherwise
prohibited activity with U.S. captive-bred scimitar-horned oryx, addax,
or dama gazelle would need to qualify for an exemption or obtain
authorization for such activity under the Act and applicable
regulations. On January 5, 2012, we published a final rule (77 FR 431)
removing the regulation at 50 CFR 17.21(h).
Species Information
The scimitar-horned oryx, dama gazelle, and addax are each native
to several countries in northern Africa. Although previously widespread
in the region, populations have been greatly reduced primarily as a
result of habitat loss, uncontrolled killing, and the inadequacy of
regulatory mechanisms (70 FR 52319). Estimated numbers of individuals
in the wild are extremely low. The oryx is believed to be extirpated in
the wild, the addax numbers fewer than 300, and the dama gazelle
numbers fewer than 500. All three species are listed in Appendix I of
the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES). The International Union for Conservation of
Nature (IUCN) Red List categorizes the oryx as ``extinct in the wild,''
and the dama gazelle and addax as ``critically endangered'' (IUCN
Species Survival Commission (SSC) Antelope Specialist Group 2008; Newby
and Wacher 2008 in IUCN Redlist 2012; Newby et al. 2008 in IUCN Redlist
2012). All three species are listed under the Act as endangered in
their entireties (see 50 CFR 17.11(h)).
The Sahara Sahel Interest Group (SSIG) estimates that there are
approximately 4,000 to 5,000 scimitar-horned oryx, 1,500 addax, and 750
dama gazelle in captivity worldwide (70 FR 52319). These include at
least 1,550 scimitar-horned oryx and 600 addax held in managed breeding
programs in several countries around the world. We are unaware of
information indicating numbers of dama gazelle currently held in
managed breeding programs. In addition to individuals of these species
held in managed breeding programs, captive individuals are held in
private collections and on private game farms and ranches in the United
States and the Middle East (IUCN SSC Antelope Specialist Group 2008;
Newby and Wacher 2008 in IUCN Redlist 2012; Newby et al. 2008 in IUCN
Redlist 2012; 70 FR 52310).
As part of planned reintroduction projects, captive-bred
individuals of the three antelope species have been released into
fenced, protected areas in Tunisia, Morocco, and Senegal. These animals
may be released into the wild when adequately protected habitat is
available. However, continued habitat loss and wanton killing have made
reintroduction nonviable in most cases (70 FR 52319).
For more information on the scimitar-horned oryx, dama gazelle, and
addax, see our final listing rule for these species (70 FR 52319;
September 2, 2005).
Standards for Evaluating Information in the Petitions
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations at 50 CFR Part 424 set forth the procedures for adding a
species to, or removing a species from, the Federal Lists of Endangered
and Threatened Wildlife and Plants. A species may be determined to be
an endangered or threatened species due to one or more of the five
factors described in section 4(a)(1) of the Act:
(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.
We must consider these same five factors in delisting a species as
they relate to the definitions of endangered and threatened species. We
may delist a species according to 50 CFR 424.11(d) only if the best
available scientific and commercial data indicate that the species is
neither endangered nor threatened for the following reasons:
(1) The species is extinct;
(2) The species has recovered and is no longer endangered or
threatened; or
(3) The best scientific or commercial data available at the time
the species was classified, or the interpretation of such data, were in
error.
In considering a petition under section 4(b)(3) of the Act, we
generally evaluate the information presented in the petition, along
with information available in our files, on threats to the species. But
in this instance, first we must evaluate whether SCI and EWA have
submitted valid petitions to add, remove, or reclassify a ``species''
as that term is defined in the Act. Our evaluation is presented below.
[[Page 58086]]
Evaluation of the Information in the SCI and EWA Petitions
As previously mentioned, SCI requests delisting of the ``U.S.
captive populations'' of the three antelope species based on the
assertion that the Service committed ``errors'' in the interpretation
of the best scientific and commercial data available at the time of the
2005 determination to list the scimitar-horned oryx, dama gazelle, and
addax as endangered in their entirety. SCI also requests that we
``correct the Endangered Species Act listing of scimitar-horned oryx,
dama gazelle, and addax to specify that only the populations in the
portion of their range outside of the United States are classified as
endangered.'' EWA requests delisting of the U.S. captive-bred
populations of the three antelope species on the basis that the
Service's interpretation of the original data for the listings was also
in error, and in addition asserts that captive[hyphen]bred animals of
the three species that are held in the United States are recovered.
Essentially, both petitioners request separate designation, or
legal status, under the Act for captive animals held within the United
States from that of members of the same taxonomic species located in
the wild or held in captivity elsewhere around the world.
The Service completed its listing determination for the three
antelope species in 2005. In that rulemaking process, the Service found
that a differentiation in the listing status of captive U.S. specimens
of these antelopes was not appropriate (70 FR 52319). While the Service
does not have an absolute policy or practice with respect to whether it
can differentiate the listing status of captive and wild specimens of
the same species, we generally have included wild and captive animals
together when listing species. Nevertheless, petitioners assert that
the treatment by the Service of chimpanzees in 1992 warrants similar
treatment now for these antelope species. In that 1992 rulemaking, the
Service uplisted chimpanzees in the wild to endangered, while retaining
the prior status of threatened for those in captivity. That 1992 action
preceded the adoption by the Service and the National Marine Fisheries
Service of the Distinct Population Segment (DPS) Policy (61 FR 4722,
February 7, 1996) and case law that has developed under the DPS Policy,
such as the decision in Alsea Valley v. Evans (161F. Supp. 2d 1154
(D.OR)). Nonetheless, because the Service has no absolute policy or
practice as to whether it can differentiate the listing status of wild
and captive specimens of the same species, a reasonable person could
conclude that the petitioned action may be warranted.
Finding
We find that the two petitions contain substantial information that
the petitioned action may be warranted. It is important to note that
the ``substantial information'' standard for a 90-day finding is in
contrast to the Act's ``best scientific and commercial data'' standard
that applies to a 12-month finding as to whether a petitioned action is
warranted. A 90-day finding is not a status assessment of the species
and does not constitute a status review under the Act. Our final
determination as to whether a petitioned action is warranted is not
made until we have completed a thorough status review of the captive
antelopes covered by these petitions, which is conducted following a
90-day finding that a petition presents substantial scientific or
commercial information indicating that the petitioned action may be
warranted (``substantial 90-day finding''). Because the Act's standards
for 90-day and 12-month findings are different, as described above, a
substantial 90-day finding does not necessarily mean that the 12-month
finding will conclude that the Service has the discretion to treat such
specimens differently, or that the petitioned action is warranted. It
does, however, mean that the Service will be able to consider this
question in more depth and detail. In addition, the Service will be
able to consider the question of the appropriate status of U.S. captive
members of the three antelope species at the same time as it considers
the status of captive chimpanzees in completing a separate 12-month
finding on a petition to eliminate the separate ESA classification of
captive and wild chimpanzees. The substantial 90-day finding on the
chimpanzee petition was published September 1, 2011 (76 FR 54423), and
a document to reopen the comment period was published November 1, 2011
(76 FR 67401).
With this substantial 90-day finding, we are initiating a rangewide
status review of the captive antelopes covered by the petitions, and,
once it is completed, we will make a finding on whether delisting the
U.S. captive specimens of any of these species is warranted. This
finding fulfills any obligation under 16 U.S.C. 1533(b)(3)(A) and the
regulations at 50 CFR 424.14(b).
References Cited
A complete list of references cited is available on the Internet at
https://www.regulations.gov and upon request from the Branch of Foreign
Species (see FOR FURTHER INFORMATION CONTACT).
Author
The primary authors of this notice are the staff of the Branch of
Foreign Species (see FOR FURTHER INFORMATION CONTACT).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: September 12, 2012.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2012-23019 Filed 9-18-12; 8:45 am]
BILLING CODE 4310-55-P
