[Federal Register Volume 78, Number 108 (Wednesday, June 5, 2013)]
[Proposed Rules]
[Pages 33790-33797]
From the Federal Register Online via the Government Publishing 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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