[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.
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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 http://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
http://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]
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