[Federal Register Volume 77, Number 182 (Wednesday, September 19, 2012)]
[Proposed Rules]
[Pages 58084-58086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23019]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-ES-2012-0077; 4500030115]


Endangered and Threatened Wildlife and Plants; 90-Day Findings on 
Petitions To Delist U.S. Captive Populations of the Scimitar-Horned 
Oryx, Dama Gazelle, and Addax

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition findings and initiation of status 
review.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (``Service''), announce 
90-day findings on two petitions to remove the U.S. captive-bred and 
U.S. captive populations of three antelope species, the scimitar-horned 
oryx (Oryx dammah), dama gazelle (Gazella dama), and addax (Addax 
nasomaculatus), from the List of Endangered and Threatened Wildlife as 
determined under the Endangered Species Act of 1973, as amended (Act or 
ESA). Based on our review, we find that the petitions present 
substantial information indicating that delisting the U.S. captive 
animals or U.S. captive-bred members of these species may be warranted. 
Therefore, with the publication of this notice, we are initiating a 
review of the status of the U.S. captive members of these species to 
determine if delisting the U.S. captive specimens is warranted. Based 
on the status review, we will issue a 12-month finding on these two 
petitions, which will address whether the petitioned action is 
warranted, as provided in section 4(b)(3)(B) of the Act.

DATES: The findings announced in this document were made on September 
19, 2012.

ADDRESSES: These findings are available on the Internet at 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]
BILLING CODE 4310-55-P