[Federal Register Volume 76, Number 130 (Thursday, July 7, 2011)]
[Proposed Rules]
[Pages 39804-39807]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16982]




Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R9-IA-2010-0056; 96300-1671-0000-R4]

RIN 1018-AX29

Endangered and Threatened Wildlife and Plants; Removal of the 

Regulation That Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, 

and Dama Gazelle From Certain Prohibitions

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 

revise the regulations that implement the Endangered Species Act (Act). 

This action would eliminate the exclusion of U.S. captive-bred live 

wildlife and sport-hunted trophies of three endangered antelopes--

scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and 

dama gazelle (Gazella dama)--from certain prohibited activities, such 

as take and export, under the Act. This proposed change to the 

regulations is in response to a court order that found that the rule 

for these three species violated section 10(c) of the Act. These three 

antelope species remain listed as endangered under the Act, and a 

person would need to qualify for an exemption or obtain an 

authorization under the current statutory and regulatory requirements 

to conduct any prohibited activities.

DATES: We will consider comments received or postmarked on or before 

August 8, 2011.

ADDRESSES: You may submit comments by one of the following methods:

     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments on Docket No. FWS-R9-


[[Page 39805]]

     U.S. mail or hand-delivery: Public Comments Processing, 

Attn: FWS-R9-IA-2010-0056; Division of Policy and Directives 

Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203.

    We will not accept e-mails or faxes. We will post all comments on 

http://www.regulations.gov. This generally means that we will post any 

personal information you provide us (see the Public Comments section at 

the end of SUPPLEMENTARY INFORMATION for further information about 

submitting comments).

FOR FURTHER INFORMATION CONTACT: Robert R. Gabel, Chief, Division of 

Management Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax 

Drive, Suite 212, Arlington, VA 22203; telephone 703-358-2093; fax 703-

358-2280. If you use a telecommunications device for the deaf (TDD), 

call the Federal Information Relay Service (FIRS) at 800-877-8339.



    On September 2, 2005 (70 FR 52319), the Service determined that the 

scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and 

dama gazelle (Gazella dama) were endangered throughout their ranges 

under the Act (16 U.S.C. 1531 et seq.). The numbers of these species of 

antelopes in the wild have declined drastically in the deserts of North 

Africa over the past 50 years. The causes of decline are habitat loss 

(desertification, permanent human settlement, and competition with 

domestic livestock), regional military activity, and uncontrolled 

killing. No sightings of the scimitar-horned oryx had been reported 

since the late 1980s, and the species may now be extinct in the wild. 

Remnant populations of the addax may still exist in remote desert 

areas, but probably fewer than 600 occur in the wild. Only small 

numbers of dama gazelle are estimated to occur in its historical range, 

with recent estimates of fewer than 700 in the wild. Captive-breeding 

programs operated by zoos and private ranches have increased the number 

of these antelopes, while genetically managing their herds and 

providing founder stock necessary for reintroduction. The Sahelo-

Saharan Interest Group (SSIG) of the United Nations Environment Program 

estimated that there are 4,000-5,000 scimitar-horned oryx, 1,500 addax, 

and 750 dama gazelle in captivity worldwide, many of which are held in 

the United States.

    Thus, on September 2, 2005 (the same date that we listed the three 

antelopes as endangered), the Service added a new regulation (70 FR 

52310) at 50 CFR 17.21(h) to govern certain activities with U.S. 

captive-bred animals of these three species. For live antelopes, 

including embryos and gametes, and sport-hunted trophies of these three 

species, the regulation authorized certain otherwise prohibited 

activities that enhance the propagation or survival of the species. 

These activities include take; export or re-import; delivery, receipt, 

carrying, transport or shipment in interstate or foreign commerce in 

the course of a commercial activity; and sale or offer for sale in 

interstate or foreign commerce.

    Captive-breeding programs have played a role in the conservation of 

the scimitar-horned oryx, addax, and dama gazelle, and we found that 

activities associated with captive breeding within the United States 

enhance the propagation or survival of the species by managing the 

species to ensure genetic integrity and diversity, serving as 

repositories for surplus animals, and facilitating the movement of 

specimens between breeding facilities. Some U.S. captive-breeding 

facilities allow sport hunting of surplus captive-bred animals, which 

generates revenue to support the operations and may relieve hunting 

pressure on wild populations.

    In the September 2, 2005, rule at 70 FR 52310, we published the 

final rule that found that the regulatory framework we were 

establishing at 50 CFR 17.21(h) met the standards for both enhancing 

the propagation and enhancing the survival of U.S captive-bred 

scimitar-horned oryx, addax, and dama gazelle as shown by the findings 

for each of the criteria found at 50 CFR 17.22(a)(2) for endangered 

species permits. We found that 50 CFR 17.21(h) protects populations in 

the wild, ensures appropriate management of U.S. captive-bred 

specimens, and encourages continued captive breeding and management of 

these species. In addition, we made the required findings under section 

10(d) of the Act. We also determined that the rulemaking process that 

amended 50 CFR 17.21 by adding a new paragraph (h) satisfied the 

requirements for notification and opportunity for public comment under 

section 10(c). Therefore, persons who wished to engage in specified 

otherwise prohibited activities with U.S. captive-bred scimitar-horned 

oryx, addax, and dama gazelle, when such activities meet the criteria 

of 50 CFR 17.21(h), could do so without obtaining an individual 

endangered species permit.

Proposed Removal of 50 CFR 17.21(h)

    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 in the United States District Court for the 

District of Columbia (see Friends of Animals, et al., v. Ken Salazar, 

Secretary of the Interior and Rebecca Ann Cary, et al., v. Rowan Gould, 

Acting Director, Fish and Wildlife Service, et al., 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. On June 22, 2009, the Court 

remanded the rule to the Service for action consistent with its 


    To comply with the Court's order, the Service proposes to remove 

the regulation at 50 CFR 17.21(h) and eliminate the exemption for U.S. 

captive-bred scimitar-horned oryx, addax, and dama gazelle from certain 

prohibitions under the Act. Any person who wishes 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 current statutes or 


Required Determinations

    Regulatory Planning and Review--Executive Order 12866: The Office 

of Management and Budget (OMB) has determined that this rule is not 

significant under Executive Order 12866 (E.O. 12866). OMB bases its 

determination upon the following four criteria.

    (a) Whether the rule will have an annual effect of $100 million or 

more on the economy or adversely affect an economic sector, 

productivity, jobs, the environment, or other units of government.

    (b) Whether the rule will create inconsistencies with other Federal 

agencies' actions.

    (c) Whether the rule will materially affect entitlements, grants, 

user fees, loan programs, or the rights and obligations of their 


    (d) Whether the rule raises novel legal or policy issues.

    Regulatory Flexibility Act: Under the Regulatory Flexibility Act 

(as amended by the Small Business Regulatory Enforcement Fairness Act 

(SBREFA) of 1996), whenever a Federal agency is required to publish a 

notice of rulemaking for any proposed or final rule, it must prepare 

and make available for public comment a regulatory flexibility analysis 

that describes the effect of the rule on small entities (i.e., small 

businesses, small organizations,

[[Page 39806]]

and small government jurisdictions) (5 U.S.C. 601 et seq.). However, no 

regulatory flexibility analysis is required if the head of an agency 

certifies that the rule would not have a significant economic impact on 

a substantial number of small entities. Thus, for a regulatory 

flexibility analysis to be required, impacts must exceed a threshold 

for ``significant impact'' and a threshold for a ``substantial number 

of small entities.'' See 5 U.S.C. 605(b). SBREFA amended the Regulatory 

Flexibility Act to require Federal agencies to provide a statement of 

the factual basis for certifying that a rule would not have a 

significant economic impact on a substantial number of small entities.

    The U.S. Small Business Administration (SBA) defines a small 

business as one with annual revenue or employment that meets or is 

below an established size standard. We expect that the majority of the 

entities involved in taking, exporting, re-importing, and selling in 

interstate or foreign commerce of these three endangered antelopes 

would be considered small as defined by the SBA.

    This proposed rule would require individuals and captive-breeding 

operations of the three endangered antelopes to apply for authorization 

and pay an application fee of $100-$200 and apply for a permit when 

conducting certain otherwise prohibited activities. The regulatory 

change is not major in scope and would create only a modest financial 

or paperwork burden on the affected members of the general public.

    We, therefore, certify that this rule would not have a significant 

economic effect on a substantial number of small entities as defined 

under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A 

Regulatory Flexibility Analysis is not required. Accordingly, a Small 

Entity Compliance Guide is not required.

    Small Business Regulatory Enforcement Fairness Act: This proposed 

rule is not a major rule under 5 U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. This proposed rule:

    a. Would not have an annual effect on the economy of $100 million 

or more. This rule proposes to remove the regulation that excludes U.S. 

captive-bred scimitar-horned oryx, addax, and dama gazelle from certain 

prohibitions of the Act. If finalized, individuals and captive-breeding 

operations would need to qualify for an exemption or obtain endangered 

species permits or other authorization to engage in certain otherwise 

prohibited activities. This proposed rule would not have a negative 

effect on this part of the economy. It will affect all businesses, 

whether large or small, the same. There is not a disproportionate share 

of benefits for small or large businesses.

    b. Would not cause a major increase in costs or prices for 

consumers; individual industries; Federal, State, tribal, or local 

government agencies; or geographic regions. This rule would result in a 

small increase in the number of applications for permits or other 

authorizations to conduct otherwise prohibited activities with these 

three endangered antelope species.

    c. Would not have significant adverse effects on competition, 

employment, investment, productivity, innovation, or the ability of 

U.S.-based enterprises to compete with foreign-based enterprises.

    Unfunded Mandates Reform Act: Under the Unfunded Mandates Reform 

Act (2 U.S.C. 1501, et seq.):

    a. This proposed rule would not significantly or uniquely affect 

small governments. A Small Government Agency Plan is not required.

    b. This proposed rule would not produce a Federal requirement of 

$100 million or greater in any year and is not a ``significant 

regulatory action'' under the Unfunded Mandates Reform Act.

    Takings: Under Executive Order 12630, this rule would not have 

significant takings implications. A takings implication assessment is 

not required. This proposed rule is not considered to have takings 

implications because it allows individuals to obtain authorization for 

otherwise prohibited activities with these three endangered antelopes 

when issuance criteria are met.

    Federalism: This proposed revision to part 17 does not contain 

significant Federalism implications. A Federalism Assessment under 

Executive Order 13132 is not required.

    Civil Justice Reform: Under Executive Order 12988, the Office of 

the Solicitor has determined that this proposed rule does not unduly 

burden the judicial system and meets the requirements of subsections 

3(a) and 3(b)(2) of the Order.

    Paperwork Reduction Act: The Office of Management and Budget 

approved the information collection in part 17 and assigned OMB Control 

Numbers 1018-0093 and 1018-0094. This proposed rule does not contain 

any new information collections or recordkeeping requirements for which 

OMB approval is required under the Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). We may not conduct or sponsor and a person is not 

required to respond to a collection of information unless it displays a 

currently valid OMB control number.

    National Environmental Policy Act (NEPA): The Service has 

determined that this proposed rule is a regulatory change that is 

administrative and legal in nature. As such, the proposed rule is 

categorically excluded from further NEPA review as provided by 43 CFR 

46.210(i), of the Department of the Interior Implementation of the 

National Environmental Policy Act (73 FR 6129269 (October 15, 2008)). 

No further documentation will be made.

    Government-to-Government Relationship with Tribes: Under the 

President's memorandum of April 29, 1994, ``Government-to-Government 

Relations with Native American Tribal Governments'' (59 FR 22951) and 

512 DM 2, we have evaluated possible effects on federally recognized 

Indian Tribes and have determined that there are no effects.

    Energy Supply, Distribution or Use: On May 18, 2001, the President 

issued Executive Order 13211 on regulations that significantly affect 

energy supply, distribution, and use. This proposed rule would not 

significantly affect energy supplies, distribution, and use. Therefore, 

this action is a not a significant energy action and no Statement of 

Energy Effects is required.

    Clarity of this Regulation: 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 


    (a) Be logically organized;

    (b) Use the active voice to address readers directly;

    (c) Use clear language rather than jargon;

    (d) Be divided into short sections and sentences; and

    (e) 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 the ADDRESSES section. 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.

Public Comments

    You may submit your comments and materials concerning this rule by 

one of the methods listed in the ADDRESSES section. We will not accept 

comments sent by e-mail or fax or to an address not listed in the 

ADDRESSES section.

    We will post your entire comment--including your personal 

identifying information--on http://

[[Page 39807]]

www.regulations.gov. If you provide personal identifying information in 

your written comments, 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.

    Comments and materials we receive, as well as supporting 

documentation we used in preparing this proposed rule, will be 

available for public inspection on http://www.regulations.gov, or by 

appointment, during normal business hours, at the U.S. Fish and 

Wildlife Service; Division of Management Authority; 4401 N. Fairfax 

Drive, Suite 212; Arlington, VA 22203; telephone, (703) 358-2093.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 

recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    For the reasons given in the preamble, we propose to amend part 17, 

subchapter B of chapter I, title 50 of the Code of Federal Regulations, 

as follows:


    1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

Sec.  17.21  [Amended]

    2. Amend Sec.  17.21 by removing paragraph (h).

    Dated: January 25, 2011.

Eileen Sobeck,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 2011-16982 Filed 7-6-11; 8:45 am]