[Federal Register Volume 78, Number 108 (Wednesday, June 5, 2013)]
[Proposed Rules]
[Pages 33790-33797]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13268]
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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; 12-Month 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 12-month petition findings.
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SUMMARY: We, the U.S. Fish and Wildlife Service (``Service''), announce
12-month 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). Based on our review, we find that delisting the U.S.
captive animals or U.S. captive-bred members of these species is not
warranted.
DATES: The findings announced in this document were made on June 5,
2013.
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)(B) of the Act (16 U.S.C. 1531 et seq.) requires
that, for any petition to revise the Federal Lists of Endangered and
Threatened Wildlife and Plants that contains substantial scientific or
commercial information that delisting the species may be warranted, we
make a finding within 12 months of the date of receipt of the petition.
In this finding, we will determine that the petitioned action is: (1)
Not warranted, (2) warranted, or (3) warranted, but the immediate
proposal of a regulation implementing the petitioned action is
precluded by other pending proposals to determine whether species are
endangered or threatened, and expeditious progress is being made to add
or remove qualified species from the Federal Lists of Endangered and
Threatened Wildlife and Plants. We must publish these 12-month findings
in the Federal Register.
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 entirety. We reopened the comment
period on the November 5, 1991, proposed rule to request information
and comments from the public on July 24, 2003 (68 FR 43706), and again
on November 26, 2003 (68 FR 66395).
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 reimport; 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) to govern certain
activities with U.S. captive-bred animals of these three species, as
described above. 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, 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.DC
2009)). The Court found that the rule for the three antelope species
violated section 10(c) of the Act by not providing the public an
opportunity to comment on activities being carried out with 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
[[Page 33791]]
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).
On June 29, 2010, we received two petitions, one dated June 29,
2010, from Nanci Marzulla, submitted on behalf of the Exotic Wildlife
Association (EWA), and one dated June 28, 2010, from Anna M. Seidmann
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). On
September 19, 2012, we published 90-day findings (77 FR 58084) on these
petitions indicating that the petitions presented substantial
information indicating that delisting the petitioned entities may be
warranted.
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 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 in
IUCN Redlist 2012a ; Newby and Wacher 2008 in IUCN Redlist 2012b; Newby
et al. 2008 in IUCN Redlist 2012c). All three species are listed under
the Act as endangered in their entirety (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 in
IUCN Redlist 2012a; Newby and Wacher 2008 in IUCN Redlist 2012b; Newby
et al. 2008 in IUCN Redlist 2012c; 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).
Evaluation of Listable Entities
Under section 3(16) of the Act, we may consider for listing any
species, which includes subspecies of fish, wildlife and plants, or any
distinct population segment (DPS) of vertebrate fish or wildlife that
interbreeds when mature (16 U.S.C. 1532(16)). Such entities are
considered eligible for separate listing status under the Act (and,
therefore referred to as listable entities) should we determine that
they meet the definition of an endangered species or threatened
species.
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. These
petitions raised questions regarding whether the Service has any
discretion to differentiate the listing status of specimens in
captivity from those in the wild.
The Service has not had an absolute policy or practice with respect
to this issue, but generally has included wild and captive animals
together when it has listed species. In the 2005 listing determination
for the scimitar-horned oryx (Oryx dammah), dama gazelle (Gazella
dama), and addax (Addax nasomaculatus) (70 FR 52319), the Service found
that a differentiation in the listing status of captive specimens of
these antelopes in the United States was not appropriate. On March 12,
1990, we published in the Federal Register (55 FR 9129) a final rule
reclassifying the
[[Page 33792]]
wild populations of chimpanzees as endangered, while captive
chimpanzees remained classified as threatened, and captive chimpanzees
within the United States continued to be covered by a special rule
allowing activities otherwise prohibited. SCI and EWA, in their
petitions to delist U.S. captive and U.S. captive-bred ``populations''
of scimitar-horned oryx, dama gazelle, and addax, asserted that the
treatment by the Service of chimpanzees in 1990 warrants similar
treatment now for these antelope species. In addition, in comments
dated May 7, 2013, SCI points to the Service's 90-day finding on a
petition to list plains bison as threatened. Because the Service had
not formally stated whether the current statute, regulations, and
policies applicable provide any discretion to differentiate the listing
status of specimens in captivity from those in the wild, we reviewed
the issues raised by these petitions and in the comments to ensure the
Act is implemented appropriately.
As discussed below, we find that the Act does not allow for
captive-held animals to be assigned separate legal status from their
wild counterparts on the basis of their captive state, including
through designation as a separate DPS \1\. It is also not possible to
separate out captive-held specimens for different legal status under
the Act by other approaches (see Other Potential Approaches for
Separate Legal Status).\2\
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\1\ As compared to populations that exist in the wild,
``captivity'' is defined as ``living wildlife[hellip] held in a
controlled environment that is intensively manipulated by man for
the purpose of producing wildlife of the selected species, and that
has boundaries designed to prevent animal [sic], eggs or gametes of
the selected species from entering or leaving the controlled
environment. General characteristics of captivity may include but
are not limited to artificial housing, waste removal, health care,
protection from predators, and artificially supplied food'' (50 CFR
17.3).
\2\ The analysis in this document addresses only situations
where it is not disputed that the specimens are members of a
wildlife species. This analysis does not address situations where
members of a species have been held in captivity for a sufficiently
long period that they have developed into a separate domesticated
form of the species, including where the domesticated form is
sufficiently distinct to be considered a separate taxonomic species
or subspecies (e.g., domesticated donkey vs. the African wild ass).
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Provisions of the Act
The legal mandate of section 4(a)(1) is to determine ``whether any
species is an endangered species or threatened species. . . .''
(emphasis added). In the Act, a ``species'' is defined to include any
subspecies and any DPS of a vertebrate animal, as well as taxonomic
species. Other than a taxonomic species or subspecies, captive-held
specimens (of a vertebrate animal species) would have to qualify as a
``distinct population segment . . . which interbreeds when mature'' to
qualify as a separate DPS.\3\ Nothing in the plain language of the
definitions of ``endangered species,'' ``threatened species,'' or
``species'' expressly indicates that captive-held animals can or cannot
have separate status under the Act on the basis of their state of
captivity. However, certain language in the Act is inconsistent with a
determination of separate legal status for captive-held animals.
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\3\ The Service has already found that the U.S. captive groups
of these three species may not meet the definition of ``population''
(70 FR 52310).
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Under section 4(c)(1), the agency is to specify for each species
listed ``over what portion of its range'' it is endangered or
threatened.\4\ ``Range,'' while not defined in the Act, consistently
has been interpreted as that general geographic area where the species
is found in the wild. Thus, a group of animals held solely in captivity
and analyzed as a separate listable entity has no ``range,'' separate
from that of the species to which it belongs, at least as that term has
been applied under the Act. The Service has consistently interpreted
``range'' in the Act as a geographic area where the species is found in
the wild.
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\4\ Even though the Service has taken the position in its draft
SPR policy (76 FR 76987) that the range information called for under
section 4(c)(1) is for information purposes, this statutory language
still informs the question of Congress' intent under the statute.
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As demonstrated in various species' listings at 50 CFR 17.11 and
17.12, information in the ``Historic Range'' column is the range of the
species in the wild. For none of these species does the ``range''
information include countries or geographic areas on the basis of where
specimens are held in captivity, even though the Service knows that
specimens of many of these species have long been held in facilities
outside their native range, including in the United States.
Also, in analyzing the ``present or threatened destruction,
modification, or curtailment of [a species'] habitat or range''
(emphasis added) (see section 4(a)(1)(A) of the Act), the Service has
traditionally analyzed habitat threats in the native range of wild
specimens and not included other geographic areas where specimens have
been moved to and are being held in captivity. We are not aware of any
Service listing decision where analysis of threats to the ``range'' has
included geographic areas outside the native range where specimens are
held in captivity.
In analyzing other threats to a species (see sections 4(a)(1)(B),
4(a)(1)(C), 4(a)(1)(D), and 4(a)(1)(E) of the Act), the Service has
also limited its analysis to threats acting upon wild specimens within
the native range of the species, and has not included analysis of
``threats'' to animals held in captivity except as those threats impact
the potential for the captive population to contribute to recovery of
the species in the geographic area where wild specimens are native.
Finally, the Service's 2011 draft policy on the meaning of the
phrase ``significant portion of its range'' (SPR) (76 FR 76987;
December 9, 2011) defines ``range'' as the ``general geographic area
within which that species can be found at the time the Fish and
Wildlife Service or National Marine Fisheries Service makes any
particular status determination. This range includes those areas used
throughout all or part of the species' life cycle, even if they are not
used regularly (e.g., seasonal habitats). Lost historical range is
relevant to the analysis of the status of the species, but it cannot
constitute a signficant portion of a species' range. The ``general
geographic area within which the species can be found'' is broad enough
to include geographic areas where animals have been moved by humans and
are being held in captivity beyond the geographic area in which
specimens are found in the wild. However, the Service has not applied
the definition in this manner in the past and does not intend to do so
in the future. SPR analyses have been and will be limited to geographic
areas where specimens are found in the wild.
In addition to the use of ``range'' in sections 4(a)(1) and
4(c)(1), the definitions of ``endangered species'' and ``threatened
species,'' found in section 3 of the Act, also discuss the role of the
species range in listing determinations. The Act defines an endangered
species as ``any species which is in danger of extinction throughout
all or a significant portion of its range,'' and a threatened species
as ``any species which is likely to become an endangered
species[hellip] throughout all or a significant portion of its range.''
As noted above, ``range'' has consistently been interpreted by the
Service as being the natural range of the species in the wild.\5\ For
all the reasons
[[Page 33793]]
discussed above, a group of animals held in captivity could not have
separate legal status under the Act because they have no ``range'' that
is separate from the range of the species in the wild to which they
belong as that term is used in the Act.
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\5\ See also Endangered Species Act: Hearings on H.R. 37, H.R.
470, H.R. 471, H.R. 1461, H.R. 1511, H.R. 2669, H.R. 2735, H.R.
3310, H.R. 3696, H.R. 3795, H.R. 4755, H.R. 2169 and H.R. 4758
Before the House Subcomm. on Fisheries and Wildlife Conservation and
the Environment, House Comm. on Merchant Marine and Fisheries, 93d
Cong. 198 (1973) (hereinafter 1973 Hearing on H.R. 37 and others)
(Letter from S. Dillon Ripley, Secretary of Smithsonian Institute,
to Chairman, House Comm. on Merchant Marine and Fisheries, April 23,
1973 (lauding H.R. 4758, the Administration's legislative proposal
that contained a definition of ``endangered species'' substantially
similar to the statutory definition eventually adopted by Congress
in the 1973 Act: ``In effect the bill offers a great deal of
flexibility by providing that a species may be placed on the list if
the Secretary determines that it is presently threatened with
extinction, not only in all of its natural range, but in a
significant part thereof, as well.'') (emphasis added)).
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Certain provisions in sections 9 and 10 of the Act show that what
Congress intended was that captive-held animals would generally have
the same legal status as their wild counterparts by providing certain
exceptions for animals held in captivity. Section 9(b)(1) of the Act
provides an exemption from certain section 9(a)(1) prohibitions for
listed animals held in captivity or in a controlled environment as of
the date of the species listing (or enactment of the Act), provided the
holding in captivity and any subsequent use is not in the course of a
commercial activity. Section 9(b)(2) of the Act provides an exemption
from all section 9(a)(1) prohibitions for raptors held in captivity or
in a controlled environment as of 1978 and their progeny. Section
10(a)(1)(A) of the Act allows permits to ``enhance the propagation or
survival'' of the species (emphasis added). This demonstrates that
Congress recognized the value of captive-holding and propagation of
listed specimens held in captivity, but intended that such specimens
would be protected under the Act, with these activities generally
regulated by permit.\6\ If captive-held specimens could simply be
excluded through the listing process, none of these exceptions and
permits would have been needed.
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\6\ See Endangered Species Conservation Act of 1972: Hearing on
S. 249, S. 3199 and S. 3818 Before the Senate Subcomm. on the
Environment, Senate Comm. on Commerce, 92nd Cong. 211-12 (1972)
(statement of Deborah Appel, Assistant to the Director for Public
Information, National Audubon Society) (endorsing S. 3199, a bill
considered by the Senate that contained similar language eventually
adopted by Congress in the purpose section of the 1973 Act, but
advising against a specific mandate requiring captive propagation
because``the capture of specimens for experiment in captive
propagation may in itself endanger the chances of some rare species
for survival in the wild.'').
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Purpose of the Act
Meaning of Section 2(b) of the Act
The full purposes of the Act, stated in section 2(b), are ``to
provide a means whereby the ecosystems upon which endangered species
and threatened species depend may be conserved [hereafter referred to
as the first purpose], to provide a program for the conservation of
such endangered species and threatened species [hereafter referred to
as the second purpose], and to take such steps as may be appropriate to
achieve the purposes of the treaties and conventions set forth in
subsection (a) of this section [hereafter referred to as the third
purpose]''. It has been stated, without explanation, that the language
of section 2(b) of the Act supports protecting only specimens that
occur in the wild. However, the purposes listed in section 2(b)
indicate that the three provisions are intended to have independent
meaning, with little to indicate that Congress' intent was to protect
only specimens of endangered or threatened species found in the wild.
The treaties and conventions under the third purpose are expressly
those listed in section 2(a)(4) of the Act, all of which are for the
protection of wildlife and plants, and none of which are limited to
protection of endangered or threatened specimens in the wild.\7\ The
first purpose calls for conservation of ecosystems, independent of
conservation of species themselves (which is separately listed as the
second purpose). This does focus on protection of native habitats
(those inhabited by the species in the wild in its native range), as it
is generally the ecosystems or habitats within which a species has
evolved that are those upon which it ``depends.'' However, the phrase
``upon which endangered species and threatened species depend''
indicates only that ecosystem (i.e., habitat) protection should be
focused on that used by endangered and threatened species, and does not
indicate that the sole focus of the Act is conservation of species
within their native ecosystems. Several provisions in the Act provide
authority to protect habitat, independent of authorities applicable to
protection and regulation of specimens of listed species themselves.
See, for example, section 5 (Land Acquisition), section 6 (Cooperation
With the States), section 7 (Interagency Cooperation), and section 8
(International Cooperation).
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\7\ Nor are these treaties and conventions limited to protection
of species listed as endangered or threatened under the Act.
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It is the second purpose under section 2(b) of the Act that speaks
to the conservation of species themselves that are endangered or
threatened. However, nothing in the language of the second purpose
indicates that conservation programs should be limited to specimens
located in the wild. The plain language of section 2(b) refers to
``species,'' with no distinction between wild specimens of the species
as compared to captive-held specimens of the species. Thus, nothing in
the plain language indicates that captive-held specimens should be
excluded from the Act's processes and protections that would contribute
to recovery (i.e., ``conservation'') of the entire taxonomic species.
It is true that the phrasing of the second purpose (``to provide a
program for the conservation of such endangered species and threatened
species'' (emphasis added)) links the second purpose of species
recovery to the first purpose of ecosystem (i.e., native habitat)
protection, thus making the goal of the statute recovery of endangered
and threatened species in their natural ecosystems. But there is
nothing in the phrasing to indicate that the specific provisions of the
statute for meeting this goal should be limited to specimens of the
species located within the ecosystems upon which they depend.
Separate Legal Status Is Inconsistent With Section 2(b)
The potential consequences of captive-held specimens being given
separate legal status under the Act on the basis of their captive
state, particularly where captive-held specimens would have no legal
protection while wild specimens are listed as endangered or
threatened,\8\ indicate that such separate legal status is not
consistent with the section 2(b) purpose of conserving endangered and
threatened species. Congress specifically recognized ``overutilization
for commercial, recreational, scientific, or educational purposes'' as
a potential threat that contributes to the risk of extinction for many
species. If captive-held specimens could have separate legal status
under the Act, the threat of overutilization would likely increase. For
example, the taxonomic species would potentially be subject to
increased take and trade in ``laundered'' wild-caught specimens to feed
U.S. or foreign market demand because protected wild specimens would be
generally indistinguishable from unprotected captive-held specimens.
Because there would be no restriction or regulation on the taking,
sale, import,
[[Page 33794]]
export, or transport in the course of commercial activities in
interstate or foreign commerce of captive specimens by persons subject
to U.S. jurisdiction, there would be a potential legal U.S. market in
captive-held endangered or threatened specimens and their progeny
operating parallel to any illegal U.S. market (or U.S. citizen
participation in illegal foreign markets) in wild specimens. With the
difficulty of distinguishing captive-held from wild specimens,
especially when they are broken down into their parts and products,
illegal wild specimens of commercial value could likely easily be
passed off as legal captive specimens and thus be traded as legal
specimens.
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\8\ If it were determined that captive-held animals can have
separate legal status on the basis of their captive state,
proponents of separate legal status could argue that these captive
specimens do not qualify as endangered or threatened species because
they do not face ``threats'' that create a substantial risk of
extinction to the captive specimens such as those faced by the wild
population (see Section 4: Listing Captive-held Specimens).
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If captive-held specimens could have separate legal status under
the Act, the taxonomic species would also potentially be subject to
increased take of animals from the wild and illegal transfer of wild
specimens into captivity. The United States is one of the world's
largest markets for wildlife and wildlife products.\9\ Poachers and
smugglers would have increased incentive to remove animals from the
wild and smuggle them into captive-holding facilities in the United
States for captive propagation or subsequent commercial use of either
live or dead specimens, because once in captivity there would be no Act
restrictions on use of the captive-held specimens or their offspring.
This would be a particular issue for foreign species where States
regulate native wildlife (and therefore captive-held domestic
endangered or threatened specimens would continue to be regulated under
State law), but often do not regulate use of nonnative wildlife. This
could be a particularly lucrative trade for poachers and smugglers
because many endangered and threatened species (particularly foreign
species) are at risk of extinction because of their high commercial
value in trade (as trophies or pets, or for their furs, horns, ivory,
shells, or medicinal or decorative use).
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\9\ See USFWS Office of Law Enforcement Annual Report for FY
2009 p. 7.
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Congress included the similarity-of-appearance provision in section
4(e) to allow the Service to regulate species under the Act where one
species so closely resembles an endangered or threatened species that
enforcement cannot distinguish between the protected and unprotected
species and this difficulty is a threat to the species. The Service's
only option in the cases of ``take'' described above would be to
complete separate similarity-of-appearance listings for captive-held
animals. A similarity-of-appearance listing under the Act for captive-
held specimens would make captive specimens subject to the same
restrictions as listed wild specimens.
Operation of Key Provisions of the Act
As described in the following subsections, operation of key
provisions in section 4 and section 7 of the Act also indicate that it
would not be consistent with Congressional intent or the purpose of the
Act to treat groups of captive-held specimens as separate listable
entities on the basis of their captive state.
Section 4: Listing Captive-Held Specimens
The section 4 listing process is not well suited to analyzing
threats to an entirely captive-held group of specimens that are
maintained under controlled, artificial conditions.
If wild populations and captive-held specimens could qualify as
separate listable entities, and it was determined that captive-held
specimens do not qualify as endangered or threatened, captive-held
specimens would receive no assistance or protection under the Act even
in cases where wild populations continue to decline, even to the point
of the species being extirpated in the wild, with the specimens in
captivity being the only remaining members of the species and survival
of the species being dependent on the survival of the captive-held
specimens. This would not be consistent with the purposes of the Act.
Groupings of captive-held specimens might not meet the definition
of endangered or threatened under the statutory factors because the
scope of the section 4 analysis for a captive-specimens listing would
be the conditions under which the captive-held specimens exist, not the
conditions of the members of the species in the wild, as the captive-
held members of the species and wild members of the species would be
under separate consideration for listing under the Act and therefore
under separate 5-factor analyses. Groupings of solely captive-held
specimens might not meet the definition of endangered (in danger of
extinction throughout all or a significant portion of their range) or
threatened (likely to become endangered within the foreseeable future)
when the conditions for individual specimens' survival are carefully
controlled under human management, especially for species that readily
breed in captivity, where breeding has resulted in large numbers of
genetically diverse specimens, or where there are no known
uncontrollable threats such as disease.
The majority of the the section 4(a)(1) factors would be difficult
to apply to captive-held specimens with a range independent of wild
specimens because they are not readily suited to evaluating specimens
held in captivity or might contribute to a determination that the
entity under consideration (separate groupings of captive -held
specimens) does not qualify as endangered or threatened. There may be
situations where only disease threats (factor C) and other natural or
manmade factors (factor E) would be applicable to consideration of
purely captive-held groups of specimens. The present or threatened
destruction, modification, or curtailment of habitat or range (factor
A) may not be a threat for a listable entity consisting solely of
captive-held specimens, because the physical environment under which
captive specimens are held is generally readily controllable and, in
many cases, optimized to ensure the physical health of the animal.
Overutilization (factor B) is unlikely to be a factor threatening the
continued existence of groups of captive-held specimens where both
breeding and culling are managed to ensure the continuation of stock at
a desired level based on ownership interest and market demand.
Predation (factor C) may rarely be a factor for captive-held specimens
because predators may be more readily controlled. Human management may
provide for all essential life functions, thereby eliminating selection
or competition for mates, food, water resources, and shelter.
It is unclear how the ``inadequacy of existing regulatory
mechanisms'' (factor D) would apply to captive-held specimens with a
range independent of wild specimens because this factor generally
applies in relationship to threats identified under the other factors.
Regulatory mechanisms applicable to wild specimens usually include
measures to protect natural habitat and laws that regulate activities
such as take, sale, and import and export. However, there might be no
regulatory mechanisms applicable when the group of specimens under
consideration is in captivity (except perhaps general humane treatment
or animal health laws).
Section 4: Delisting Captive-Held Specimens
If wild populations and groups of captive-held specimens could
qualify as separate listable entities, and because groupings of
captive-held specimens may not meet the definitions of endangered or
threatened under the statutory factors (as discussed above),
[[Page 33795]]
captive-held specimens currently listed as endangered or threatened
(because they were originally listed along with wild specimens as a
single listed entity) could be petitioned for, and might qualify for,
delisting. These specimens would therefore lose any legal protections
of the Act, even as wild populations continue to decline, including to
the point of extirpation in the wild. This likewise would not be
consistent with the purpose of the Act.
Section 4: Listing Effects on Wild Populations
If wild specimen populations and groups of captive-held specimens
could qualify as separate listable entities, and because the analysis
for determining legal status of wild populations would be separate from
the analysis for determining legal status of captive specimens, the
wild population would likely qualify for delisting in the event that
all specimens are lost from the wild (in other words, if they became
extinct in the wild), thereby removing both incentives and protections
for conservation of the species in the wild and the conservation of its
ecosystem.
Under the Service's standard section 4 process, both captive-held
and wild specimens of the species are members of the listed entity and
have legal status as endangered or threatened. In situations where all
specimens in the wild are gone, either because they are extirpated due
to threats or because, as a last conservation resort, the remaining
wild specimens are captured and moved into captivity, the species
remains listed until specimens from captivity can be reintroduced to
the wild and wild populations are recovered. However, if captive
specimens and wild populations could have separate legal status, once
all members of the wild population were gone from the wild, the wild
population could be petitioned for and would likely qualify for
delisting under 50 CFR 424.11(d)(1) as a ``species'' that is now
extinct. As shown above, the separate captive-held members of the
taxonomic species might not qualify for legal status as endangered or
threatened, due to the lack of ``threats'' that create a risk of
extinction to the viability of a sustainable, well-managed pool of
captive animals. With no listed entities and therefore no authority to
use funding or other provisions of the Act for the species, the Service
would lose valuable tools for recovery of the species to the wild. This
would clearly not be consistent with the purpose of the Act.
Section 7: Consultation
All Federal agencies have a legal obligation to ensure that their
actions are not likely to jeopardize the continued existence of
endangered and threatened species. This means that for separately
listed captive-held endangered or threatened specimens, any Federal
agency that is taking an action within the United States or on the high
seas that may affect the captive-held listed species arguably would
have a legal duty to consult with the Service. However, the section 7
consultation process is not well suited to analysis of adverse impacts
posed to a purely captive-held group of specimens given that such
specimens are maintained under controlled, artificial conditions.
Section 4: Designation of Critical Habitat
For any listed entity located within the United States or on the
high seas, we have a section 4 duty to designate critical habitat
unless such habitat is not prudent.\10\ Although it is appropriate not
to designate critical habitat for foreign species or to limit a
critical habitat designation to natural habitats for U.S. species when
a listing is focused on the species in the wild (even when some members
of the species may be held in captivity within the United States), it
is not clear how the Service would support not designating critical
habitat when the listed entity would consist entirely of captive-held
specimens (when the focus of captivity is within the United States). As
with the consultation process, the critical habitat designation duty is
not well suited for listings that consist entirely of captive-held
specimens, especially given the anomaly of identifying the physical and
biological features that would be essential to the conservation of a
species consisting entirely of captive animals in an artificial
environment. These complexities related to section 7 consultations and
designation of critical habitat indicate that Congress did not intend
the Service to treat groups of captive-held specimens as separate
listable entities on the basis of their captive state.
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\10\ Making a not determinable finding is also an option under
section 4(b)(6)of the statute, but only delays the requirement to
designate such critical habitat.
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Legislative History
Legislative history surrounding the 1978 amendment of the
definition of ``species'' in the Act indicates that Congress intended
designation of DPSes to be used for designation of wild populations,
not separation of captive-held specimens from wild members of the same
taxonomic species. The original (1973) definition of species was ``any
subspecies . . . and any other group of fish or wildlife of the same
species or smaller taxa in common spatial arrangement that interbreed
when mature'' (Pub. L. 93-205). In 1978, Congress amended the Act to
the Act's current definition of species, substituting ``distinct
population segment'' for ``any other group'' and ``common spatial
distribution'' following testimony on the inadequacy of the original
definition, such as the exclusion of one category of populations
commonly recognized by biologists: disjunct allopatric populations that
are separated by geographic barriers from other populations of the same
species and are consequently reproductively isolated from them
physically (See Endangered Species Act Oversight: Hearing Before Senate
Subcommittee on Resource Protection, Senate Committee on Environment
and Public Works, 95th Cong. 50 (July 7, 1977) (hereinafter 1977
Oversight Hearing) (letter from Tom Cade, Program Director, The
Peregrine Fund, to Director of the Service)). Although there was
discussion regarding population stocks and reproductive isolation
generally, particularly in association with development of the 1973
definition,\11\ discussions that provide additional context on the
scope of the definition of ``species'' show that Congress thought of
the population-based listing authority as appropriate for populations
that are distinct for natural and evolutionary reasons. For example,
one witness discussed ``species'' as associated with the concept of
geographic reproductive isolation and including characteristics of a
population's ability or inability to freely exchange genes in nature
(See 1977 Oversight Hearing at 50 (Cade letter)). There is no evidence
that Congress intended for the agency to use the authority to
separately list groups of animals that have been artificially separated
from other members of the species through human removal from the wild
and maintenance in a controlled environment. Examples in testimony for
which population-based listing authority would be appropriately used
were all for wild populations (See 1973 Hearing on H.R. 37 and others
at 307 (statement of Stephen Seater, Defenders of Wildlife); Endangered
Species Act of 1973: Hearings on S. 1592 and S. 1983 Before the Senate
Subcomm. on Environment, Senate Comm. on Commerce, 93d Cong. 98
[[Page 33796]]
(1973) (statement of John Grandy, National Parks and Conservation
Assoc.); Endangered Species Authorization: Hearings on H.R. 10883
Before the House Subcomm. on Fisheries and Wildlife Conservation and
the Environment, House Comm. on Merchant Marine and Fisheries, 95th
Cong. 560 (1978) (statement of Michael Bean, Environmental Defense
Fund)). No examples were given suggesting designation of captive-held
specimens as appropriate DPSes.
---------------------------------------------------------------------------
\11\ See 1973 Hearing on H.R. 37 and others p. 286 (statement of
John Grandy, National Parks and Conservation Assoc.) p. 307
(statement of Stephen Seater, Defenders of Wildlife), and pp. 299-
300 (statement of Tom Garrett, Friends of the Earth).
---------------------------------------------------------------------------
Other Potential Approaches for Separate Legal Status
In addition to separate designation as ``species,'' there are two
other approaches under which it could be argued that captive-held
specimens could be given separate legal status from their wild
counterparts: (1) Simply excluding captive-held members of the
taxonomic species, subspecies, or DPS listable entity from the Act's
protections, or (2) designating only wild members of the taxonomic
species as a DPS, with captive-held specimens not included in the DPS.
However, neither approach would be consistent with Congress' intent for
the Act.
One court has already determined that captive-held specimens of a
listable entity cannot simply be excluded when they are members of the
listable entity, and the Service agrees with the court's reasoning in
this case. The Service cannot exclude captive-held animals from a
listing once these animals are determined to be part of the species.
This case--Alsea Valley Alliance v. Evans--involved the listing of coho
salmon by the National Marine Fisheries Service (NMFS). NMFS's 1993
Hatchery Policy (58 FR 17573; April 5, 1993) stated that hatchery
populations could be included in the listing of wild members of the
same evolutionary significant unit (equivalent to a DPS), but only if
the hatchery fish were ``essential to recovery.'' In 1998, NMFS listed
only ``naturally spawned'' specimens when it listed an evolutionary
significant unit (ESU) of coho salmon (63 FR 42587; August 10, 1998).
This decision was challenged in court, and the Court found NMFS's
listing decision invalid because it excluded hatchery populations
(which are fish held in captivity) even though they were part of the
same DPS (or ESU) Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154
(D. Or. 2001). The Court held that ``Congress expressly limited the
Secretary's ability to make listing distinctions below that of
subspecies or a DPS of a species,'' which was the practical result of
excluding all hatchery specimens. NMFS subsequently changed its
Hatchery Policy in 2005, stating that all hatchery fish that qualify as
members of the ESU would be considered part of the ESU, would be
considered in determining whether the ESU should be listed as
endangered or threatened, and would be included in any listing under
the Act (70 FR 37204; June 28, 2005). NMFS's 2005 Hatchery Policy was
upheld by the Ninth Circuit Court in Trout Unlimited v. Lohn, 559 F. 3d
946 (2009).
For the same reasons as discussed earlier in this document, the
Service also cannot simply designate wild members of the taxonomic
species (or all wild members and those captive-held animals located
outside the United States) as a DPS, leaving all captive-held animals,
or captive-held animals located within the United States, unlisted.
Although this would avoid designating captive-held animals as a
separate DPS and would not technically be excluding animals that
otherwise have been found to be members of a DPS (and thereby avoid the
error the court found in the Alsea Valley Alliance v. Evans decision),
the result would be separate legal status and no legal protections for
captive-held specimens, and many of the same legal and conservation
consequences discussed above would occur. For these reasons, we also
find this outcome to be inconsistent with Congress' intent for the Act,
primarily as inconsistent with the purposes of the Act.
Additional Arguments in the Petitions Are Not Supported
SCI argues in its petition that the Service ``has a history of not
including non-native populations of a species when listing the native
populations as endangered or threatened.'' However, the SCI petition
fails to identify any Service policy or consistent practice regarding
listing decisions under the Act that exclude or separately designate
captive-held animals. The support cited by SCI in its petition is the
Service's listing of the Arkansas River shiner, but the listing of that
species is not relevant in considering SCI's petition for separate
status for captive animals. In the Arkansas River shiner listing (63 FR
64772; November 23, 1998), as well as listings of some other species of
fish with naturalized populations in the United States raised in later
comments by SCI, the Service was considering wild populations, not
animals held in captivity and under human control. Such wild
populations do not exist in human-controlled environments and are not
subject to human manipulation of their reproduction. Rather, they often
inhabit natural or modified natural ecosystems; are self-sustaining;
breed at will without human intervention; survive with little or no
human assistance; and are subject to the same processes that affect
native wild populations, including habitat loss or modification,
disease, predation, human take (regulated or not), and stochastic
events (floods, drought, hurricanes, fires, etc.). SCI and EWA appear
to concede that scimitar-horned oryx, addax, and dama gazelle occurring
in the United States, as well as animals occurring in other countries
outside the species' ranges, are held in captivity. In its petition,
EWA argues that the Service's 1990 listing for chimpanzees, the one
current listing where captive animals are designated as a separate DPS,
sets precedent for captive-held populations of widllife. The Service is
currently processing a petition to list the species Pan troglodytes as
endangered in its entirety. On September 1, 2011, we found that the
petition presented substantial information indicating that listing the
entire species as endangered may be warranted (76 FR 54423).
SCI and EWA also both argue on the basis of error--and citing to a
2007 memorandum issued by the Department of the Interior (DOI) Office
of the Solicitor (DOI 2007)--that the Service should find that only the
animals living in a significant portion of their range outside the
United States should be classified as endangered and that the species
are not endangered in the portion of their range that lies within the
United States. It is correct that, in 2007, the Solicitor issued a
legal opinion indicating that, based on use of the statutory term
``significant portion of its range,'' the Act allowed the Service to
list and apply the protections of the Act only in that portion of the
range where a species is found to be an endangered or threatened
species. But in May 2011, and following two adverse court decisions on
the agency's legal interpretation, the Solicitor withdrew this legal
opinion (see 76 FR 76987; December 9, 2011). Since withdrawal of this
legal opinion, the Service has published a draft policy that provides
its interpretation of the phrase ``significant portion of its range''
(see 76 FR 76987; December 9, 2011). In the draft policy, the Service
concluded that if a species is found to be endangered or threatened in
only a significant portion of its range, the entire species is to be
listed as endangered or threatened. Thus even if any one of the three
antelope species were found to be endangered in only a significant
portion of its range, as argued by SCI and EWA, the entire species
would still be listed
[[Page 33797]]
as endangered and the Act's protections would apply to the species in
its entirety. In their petitions, SCI and EWA note that all three
species qualify for endangered species status elsewhere outside the
United States. There was, therefore, no error on this basis in the 2005
listings of these three antelope species. Although this draft policy
has not yet been finalized, the Service is considering the
interpretations and principles contained in the draft policy as
nonbinding guidance when making individual listing determinations, such
as these 12-month findings. In addition, for the reasons provided
above, the Service could not distinguish between and assign separate
legal status to captive-held and wild members of a taxonomic species
through an SPR analysis.
Findings
Section 4(b)(3) of the Act and our regulations at 50 CFR 424.14
provide that a person may petition to add or remove a ``species'' (as
defined by the Act) from the Lists of Endangered or Threatened Wildlife
or Plants, or change the listed status of a ``species.'' For the
reasons given above, neither SCI nor EWA has petitioned to remove or
reclassify a grouping of members of the three antelope that qualify to
be designated as a separate ``species'' under the Act, and therefore
the petitioned actions are not warranted.
Based on the analysis above, it is the Service's conclusion that,
although the Act does not expressly address whether captive-held
specimens of wildlife can have separate legal status, the language,
purpose, operation, and legislative history of the Act, when considered
together, indicate that Congress did not intend for captive-held
specimens of wildlife to be subject to separate legal status on the
basis of their captive state.\12\ This includes designating groups of
captive-held specimens as separate DPSes, excluding captive-held
specimens during the listing of wild specimens of the same species, and
de facto creating separate listed and nonlisted entities by designating
one or more DPSes consisting of wild specimens and leaving captive
specimens unlisted. It also would include using the ``significant
portion of its range'' language in the definitions of ``endangered
species'' and ``threatened species'' to provide separate legal status
for captive-held specimens.
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\12\ The decision on whether captive-held specimens can have
separate legal status based on their captive state is a separate
issue from the role that such specimens should play during a status
review. The extent to which captive-held members of a species create
or contribute to threats to the species (for example, by fueling
trade) or the extent to which captive-held members of a species
remove or reduce threats to the species by contributing to the
conservation of the species (for example, by providing specimens for
population augmentation or reintroduction) is part of the five-
factor analysis under section 4(a)(1) of the Act, not a matter of
whether the members are part of the listable entity.
---------------------------------------------------------------------------
For the reasons given above, the U.S. captive, or U.S. captive-bred
specimens of, scimitar-horned oryx, dama gazelle, and addax, do not
qualify as separate ``species'' or otherwise qualify for separate legal
status under the Act. Therefore, we find that delisting the U.S.
captive, or U.S. captive-bred specimens of, scimitar-horned oryx, dama
gazelle, and addax, is not warranted. This determination is consistent
with our position on the status of U.S. captive-held members of these
three antelope species since the 2005 listing decision (70 FR 52319;
September 2, 2005). During the public comment periods on the proposed
rule to list these three species in their entirety (56 FR 56491, 68 FR
43706, and 68 FR 66395), the Service received several comments
indicating that it should list only wild specimens of the three
species. In the final rule, the Service noted these comments but stated
that ``it would not be appropriate to list captive and wild animals
separately'' (70 FR 52319; September 2, 2005).
In sum, on the basis of our determination under section 4(b)(3)(B)
of the Act, we conclude that removing the U.S. captive specimens or
U.S. captive-bred specimens of scimitar-horned oryx, dama gazelle, and
addax from the List of Endangered and Threatened Wildlife is not
warranted. Although these captive specimens remain listed as endangered
under the ESA, having these captive individuals listed under the ESA
does not necessarily ban the hunting of these individuals on game
ranches in the United States. We recognized at the time of listing the
species that allowing ranches to continue in their management efforts
for these species could help to ensure that a viable group of antelope
would be available for reintroduction purposes if conditions in the
species' native range improved. Therefore, we have been authorizing
well-managed ranches to conduct various management practices, including
limited hunting, through our Captive-Bred Wildlife Registration
regulation and permitting process. Since the current regulations went
into effect on April 4, 2012, we have approved 139 ranches to maintain
the species, of which 107 have been authorized to conduct limited hunts
to maintain viable herds on their ranches. We accomplished this effort
through use of a simple application process through which ranches
obtained the necessary permits.
We encourage interested parties to continue to gather data that
will assist with the conservation of the scimitar-horned oryx, dama
gazelle, and addax. If you wish to provide information regarding these
species, you may submit your information or materials to Janine Van
Norman, Chief, Branch of Foreign Species (see FOR FURTHER INFORMATION
CONTACT), at any time.
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: May 28, 2013.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-13268 Filed 6-4-13; 8:45 am]
BILLING CODE 4310-55-P