[Federal Register Volume 78, Number 113 (Wednesday, June 12, 2013)]
[Proposed Rules]
[Pages 35201-35217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14007]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R9-ES-2010-0086; 4500030115]
RIN 1018-AZ52


Endangered and Threatened Wildlife and Plants; Listing All 
Chimpanzees as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to list all 
chimpanzees (Pan troglodytes) as endangered under the Endangered 
Species Act of 1973, as amended (Act). We are taking this action in 
response to a petition to list the entire species, whether in the wild 
or in captivity, as endangered under the Act. This proposal constitutes 
our 12-month finding on the petition and announces our finding that 
listing all chimpanzees as endangered is warranted. This document also 
serves as our 5-year

[[Page 35202]]

review of the species. If we finalize this rule as proposed, we would 
eliminate the separate classification of captive and wild chimpanzees 
under the Act and extend the Act's protections to captive chimpanzees 
in the United States. In addition, we propose to amend the special rule 
for primates to remove chimpanzees from the rule. If the listing of all 
chimpanzees as endangered is finalized, the provisions of the special 
rule can no longer be applied to captive chimpanzees. We seek comments 
from the public on this proposed rule.

DATES: We will consider comments and information received or postmarked 
on or before August 12, 2013. Comments submitted electronically using 
the Federal eRulemaking Portal (see ADDRESSES, below) must be received 
by 11:59 p.m. Eastern Time on the closing date.
    We must receive requests for public hearings, in writing, at the 
address shown in FOR FURTHER INFORMATION CONTACT by July 29, 2013.

ADDRESSES: You may submit information by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R9-ES-2010-0086, 
which is the docket number for this rulemaking. You may submit a 
comment by clicking on ``Comment Now!'' If your comments will fit in 
the provided comment box, please use this feature of http://www.regulations.gov, as it is most compatible with our comment review 
procedures. If you attach your comments as a separate document, our 
preferred file format is Microsoft Word. If you attach multiple 
comments (such as form letters), our preferred format is a spreadsheet 
in Microsoft Excel.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R9-ES-2010-0086; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested under SUPPLEMENTARY INFORMATION for more 
information).

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: 

Executive Summary

I. Purpose of the Regulatory Action

    We are proposing to list all chimpanzees, whether in the wild or in 
captivity, as endangered under the Endangered Species Act of 1973, as 
amended (Act). We have determined 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 distinct population segment (DPS). It 
is also not possible to separate out captive-held specimens for 
different legal status under the Act by other approaches. Therefore, we 
are proposing to eliminate the separate classification of chimpanzees 
held in captivity and list the entire species, wherever found, as 
endangered under the Act.

II. Major Provision of the Regulatory Action

    If adopted as proposed, this action will eliminate separate 
classifications for wild and captive chimpanzees under the Act. All 
chimpanzees, whether in the wild or in captivity, will be listed as one 
entity that is endangered in the List of Endangered and Threatened 
Wildlife at 50 CFR 17.11(h). This action will also remove the 
chimpanzee and paragraph (c)(3) from the special rule for primates, 
found at 50 CFR 17.40(c), extending the Act's protections to all 
chimpanzees.

Background

    Section 4(b)(3)(B) of the Endangered Species Act (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 listing the 
species may be warranted, we make a finding within 12 months of the 
date of receipt of the petition (``12-month finding''). In this 
finding, we determine whether the petitioned action is: (a) Not 
warranted, (b) warranted, or (c) warranted, but 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.
    In this document, we announce that listing all chimpanzees, whether 
in the wild or in captivity, as endangered is warranted, and are 
proposing to revise the entry of this species in the Federal List of 
Endangered and Threatened Wildlife. Additionally, this action, if 
finalized as proposed, will eliminate a special rule under section 4(d) 
of the Act that exempts captive chimpanzees in the United States from 
the general prohibitions of the Act.
    Prior to issuing a final rule on this proposed action, we will take 
into consideration all comments and any additional information we 
receive. Such information may lead to a final rule that differs from 
this proposal. All comments and recommendations, including names and 
addresses of commenters, will become part of the administrative record.

Petition History

    On March 16, 2010, we received a petition dated the same day, from 
Meyer Glitzenstein & Crystal on behalf of The Humane Society of the 
United States, the American Association of Zoological Parks and 
Aquariums, the Jane Goodall Institute, the Wildlife Conservation 
Society, the Pan African Sanctuary Alliance, the Fund for Animals, 
Humane Society International, and the New England Anti-Vivisection 
Society (hereafter referred to as ``petitioners'') requesting that 
captive chimpanzees (Pan troglodytes) be reclassified as endangered 
under the Act. The petition clearly identified itself as such and 
included the requisite identification information for the petitioners, 
as required by 50 CFR 424.14(a). The petition contained information on 
what the petitioners reported as potential threats to the species from 
habitat loss, poaching and trafficking, disease, and inadequate 
regulatory mechanisms. In a September 15, 2010, letter to Katherine 
Meyer, we responded that we were required to complete a significant 
number of listing and critical habitat actions, including complying 
with court orders and court-approved settlement agreements, that 
required nearly all of our listing and critical habitat funding for 
fiscal year 2010. We also stated that we anticipated making an initial 
finding during fiscal year 2011, as to whether the petition contained 
substantial information indicating that the action may be warranted.
    On October 12, 2010, we received a letter from Anna Frostic, Staff 
Attorney with the Humane Society of the United States, on behalf of the 
petitioners clarifying that the March 16, 2010, petition was a petition 
to list the entire species (Pan troglodytes) as endangered,

[[Page 35203]]

whether in the wild or in captivity, pursuant to the Act. We 
acknowledged receipt of this letter in a letter to Ms. Frostic dated 
October 15, 2010.

Previous Federal Actions

    On October 19, 1976, we published in the Federal Register a rule 
listing the chimpanzee and 25 other species of primates under the Act 
(41 FR 45990); the chimpanzee and 13 of the other primate species were 
listed as threatened. The chimpanzee was found to be threatened based 
on (1) Commercial logging and clearing of forests for agriculture and 
the use of arboricides; (2) capture and exportation for use in research 
labs and zoos; (3) diseases, such as malaria, hepatitis, and 
tuberculosis contracted from humans; and (4) ineffectiveness of 
existing regulatory mechanisms. We simultaneously issued a special rule 
that the general prohibitions provided to the threatened species would 
apply except for live animals of these species held in captivity in the 
United States on the effective date of the rulemaking, progeny of such 
animals, or the progeny of animals legally imported into the United 
States after the effective date of the rulemaking.
    On November 4, 1987, we received a petition from the Humane Society 
of the United States, World Wildlife Fund, and Jane Goodall Institute, 
requesting that the chimpanzee be reclassified from threatened to 
endangered. On March 23, 1988 (53 FR 9460), we published in the Federal 
Register a finding, in accordance with section 4(b)(3)(A) of the Act, 
that the petition had presented substantial information indicating that 
the requested reclassification may be warranted and initiated a status 
review. We opened a comment period, which closed July 21, 1988, to 
allow all interested parties to submit comments and information.
    On December 28, 1988 (53 FR 52452), we published in the Federal 
Register a finding that the requested reclassification was warranted 
with respect to chimpanzees in the wild. This decision was based on the 
petition and subsequent supporting comments that dealt primarily with 
the status of the species in the wild and not with the viability of 
captive populations. We did not propose reclassification of captive 
chimpanzees. We found that the special rule exempting captive 
chimpanzees in the United States from the general prohibitions may 
encourage propagation, providing surplus animals and reducing the 
incentive to remove animals from the wild. On February 24, 1989 (54 FR 
8152), we published in the Federal Register a proposed rule to 
implement such reclassification. Following publication of the proposed 
rule, we opened a 60-day comment period to allow all interested parties 
to submit comments and information.
    On March 12, 1990, we published in the Federal Register (55 FR 
9129) a final rule reclassifying the wild populations of the 
chimpanzees as endangered. The captive chimpanzees remained classified 
as threatened, and those within the United States continued to be 
covered by the special rule allowing activities otherwise prohibited.
    On September 1, 2011, we published in the Federal Register a 
finding that the March 16, 2010, petition (discussed above under 
``Petition History'') presented substantial scientific or commercial 
information indicating that the requested action may be warranted, and 
we initiated a status review (76 FR 54423).
    On November 1, 2011, we published in the Federal Register a notice 
correcting an incorrect Docket Number given under the ADDRESSES section 
of the September 1, 2011, petition finding. We also gave notice that we 
were making the large volume of supporting documents submitted with the 
petition available to the public. To allow the public adequate time to 
review the supporting documents, we extended the period of time for 
submitting information to January 30, 2012 (74 FR 67401).

5-Year Review

    Section 4(c)(2)(A) of the Act requires that we conduct a review of 
listed species at least once every 5 years. A 5-year review is 
conducted to ensure that the classification of a listed species is 
appropriate. Section 4(c)(2)(B) requires that we determine on the basis 
of this review: (1) Whether a species no longer meets the definition of 
endangered or threatened and should be removed from the List 
(delisted); (2) whether a species more properly meets the definition of 
threatened and should be reclassified from endangered to threatened; or 
(3) whether a species more properly meets the definition of endangered 
and should be reclassified from threatened to endangered. This 12-month 
finding serves as our 5-year review of this species.

Information Requested

    We intend that any final action resulting from this proposed rule 
be based on the best scientific and commercial data available. 
Therefore, we seek comments and information on this proposed rule, 
particularly but not limited to:
    (1) Information on taxonomy, distribution, habitat selection, diet, 
and population abundance and trends of this species.
    (2) Information on the effects of habitat loss and changing land 
uses on the distribution and abundance of this species and its 
principal food sources over the short and long term.
    (3) Information on whether changing climatic conditions are 
affecting the species, its habitat, or its prey base.
    (4) Information on the effects of other potential threat factors, 
including live capture and collection, domestic and international 
trade, predation by other animals, and diseases of this species.
    (5) Information on management programs for chimpanzee conservation, 
including mitigation measures related to conservation programs, and any 
other private or governmental conservation programs that benefit this 
species.
    (6) Information relevant to whether any populations of this species 
may qualify as distinct population segments.
    (7) Information on captive breeding and domestic trade of this 
species in the United States.
    (8) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which 
are:
    (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.
    Please include sufficient information with your submission (such as 
full references) to allow us to verify the information you provide. 
Submissions merely stating support for or opposition to the action 
under consideration without providing supporting information, although 
noted, will not be considered in making a determination. Section 
4(b)(1)(A) of the Act directs that determinations as to whether any 
species is an endangered or threatened species must be made ``solely on 
the basis of the best scientific and commercial data available.''
    You may submit your information concerning this proposed rule by 
one of the methods listed in ADDRESSES. If you submit information via 
http://www.regulations.gov, your entire submission--including any 
personal identifying information--will be posted on the Web site. If 
your submission is

[[Page 35204]]

made via hardcopy that includes personal identifying information, you 
may request at the top of your document that we withhold this personal 
identifying information from public review. However, we cannot 
guarantee that we will be able to do so. We will post all hardcopy 
submissions on http://www.regulations.gov.

Public Hearing

    At this time, we do not have a public hearing scheduled for this 
proposed rule. The main purpose of most public hearings is to obtain 
public testimony or comment. In most cases, it is sufficient to submit 
comments through the Federal eRulemaking Portal, described above in the 
ADDRESSES section. If you would like to request a public hearing for 
this proposed rule, you must submit your request, in writing, to the 
person listed in FOR FURTHER INFORMATION CONTACT by the date specified 
above in DATES.

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.
    The Service was petitioned to list all chimpanzees, whether in the 
wild or in captivity, as endangered. Essentially, this request is to 
eliminate the separate classification of captive chimpanzees from 
chimpanzees located in the wild. This petition 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. The example set by the separate 
chimpanzee listings was used as support for two petitions the Service 
received in 2010 to delist U.S. captive and U.S. captive-bred members 
of three antelope species in the United States. In the 2005 listing 
determination for the scimitar-horned oryx (Oryx dammah), dama gazelle 
(Gazella dama), and addax (Addax nasomaculatus) (70 FR 52310, September 
2, 2005), the Service found that a differentiation in the listing 
status of captive specimens of these antelopes in the United States was 
not appropriate. The petitioners, Exotic Wildlife Association, Safari 
Club International, and Safari Club International Foundation, asserted 
that the treatment by the Service of chimpanzees in 1990 warrants 
similar treatment now for these antelope species. Because the Service 
has not formally stated whether the current statute, regulations, and 
applicable policies 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 to ensure the Act is implemented 
appropriately.
    As discussed below, we find that the Act does not allow for 
captive[hyphen]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 distinct population segment (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).
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    \1\ As compared to populations that exist in the wild, 
``captivity'' is defined as ``living wildlife . . . 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).
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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.\2\ 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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    \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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    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.\3\ ``Range,'' while not defined in the Act, consistently 
has been interpreted as that general geographical 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 geographical area where the 
species is found in the wild.
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    \3\ 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

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``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 Service or National Marine 
Fisheries Service (NMFS) 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 habitat). Lost historical range in relevant to the analysis of 
the status of the species, but it cannot consitutute a significant 
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. 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 . . . 
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.\4\ For all the reasons 
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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    \4\ 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.\5\ 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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    \5\ 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.\6\ 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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    \6\ 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

[[Page 35206]]

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,\7\ 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, 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.
---------------------------------------------------------------------------

    \7\ 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).
---------------------------------------------------------------------------

    If captive-held specimens could have separate legal status under 
the Act, the taxonomic species would 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.\8\ 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).
---------------------------------------------------------------------------

    \8\ See USFWS Office of Law Enforcement Annual Report for FY 
2009 p. 7.
---------------------------------------------------------------------------

    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 sections 4 and 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-specimen listing would be 
the conditions under which the captive-held specimen exists, 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 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

[[Page 35207]]

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).
    That the section 4 process is not well suited to listings of 
entirely captive specimens is demonstrated by the previous listing 
action for the chimpanzee. The chimpanzee was originally listed in its 
entirety as a threatened species (41 FR 45990; Oct. 19, 1976). On March 
12, 1990 (55 FR 9129), the Service reclassified wild populations of 
chimpanzees as a separate endangered species, noting that wild 
populations had declined due to massive habitat destruction, excessive 
hunting and capture by people, and lack of effective national and 
international controls. But the final reclassification rule never 
analyzed whether the newly designated DPS consisting of chimpanzees 
``wherever found in captivity'' separately met the definition of a 
threatened species based on the five factors found in section 4(a)(1) 
of the Act. Instead, the rule discussed estimated numbers of animals in 
captivity and known captive-breeding programs, stating in response to a 
comment that some chimpanzee breeding groups were being managed in the 
United States with the objective of achieving self-sustainability. The 
five-factor analysis in both the proposed and final listing rules 
considered only information applicable to wild populations and within 
the taxanomic species' native range.

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), 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.\9\ 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

[[Page 35208]]

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

    \9\ 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 a DPS to be used for wild vertebrate 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) (here after 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,\10\ 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 (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 vertebrates 
as a DPS.
---------------------------------------------------------------------------

    \10\ 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 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 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 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 as a DPS, leaving all captive[hyphen]held animals unlisted. 
Although this would avoid designating captive[hyphen]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.
    Now that we have determined that all chimpanzees, including captive 
and wild animals, should be considered as a single listable entity 
under the Act, we will next assess the status of the species and 
determine if the species meets the definition of endangered or 
threatened under the Act. In 1990, we determined that chimpanzees in 
the wild are endangered. This analysis considers new information in 
light of that previous determination and includes the extent to which 
captive-held chimpanzees create or contribute to threats to the species 
or remove or reduce threats to the species by

[[Page 35209]]

contributing to the conservation of the species.

Species Information

Taxonomy and Species Description

    In 1990, when the wild populations of chimpanzees were reclassified 
to endangered, only three subspecies were recognized. Since that time, 
the correct taxonomic labeling for chimpanzees has been debated and 
includes the use of a two-subspecies system, a four-subspecies system, 
and the use of the species level without subspecific designations 
(Carlsen et al. 2012, p. 5; Morgan et al. 2011, p. 7; Plumptre et al. 
2010, p. 2; Ghobrial et al. 2010, p. 2; Oates et al. 2008, 
unpaginated). Today, four subspecies are commonly recognized and 
include the Central African chimpanzee (Pan troglodytes troglodytes), 
East African chimpanzee (P. t. schweinfurthii), West African chimpanzee 
(P. t. verus), and Nigeria-Cameroon chimpanzee (P. t. ellioti) (Morgan 
et al. 2011, p. 7; Oates et al. 2008, unpaginated).
    Characteristics of the chimpanzee include an opposable thumb and 
prominent mouth. The skin on a chimpanzee's face, ears, palms, and 
soles of the feet are bare, whereas the rest of the body is covered 
with brown to black hair. Arms extend beyond the knees. This species 
walks ``on all four'' but are able to walk on just their legs for more 
than a kilometer (0.6 miles (mi)) (WWF n.d., unpaginated). The male 
stands over 1.2 meters (m) (4 feet (ft)) tall and weighs 59 kilograms 
(kg) (130 pounds (lb)); the female is closer to 0.9 m (3 ft) tall and 
weighs under 45 kg (100 lb) (AZA 2000, p. 1).
    Chimpanzees live in social communities that range from 5 to 150 
individuals (Oates et al. 2008, unpaginated). A male dominance 
hierarchy forms the core of the community. Males work together to 
defend a home range and will occasionally attack and kill individuals 
from another community (Lonsdorf 2007, pp. 72, 74). These communities 
do not move around in a group like gorillas or monkeys, but rather 
spend most of their time in subgroups called parties (Pusey et al. 
2007, p. 626; Plumptre et al. 2003, p. 9). Members of a community may 
join, or leave, at any time and parties may change frequently in size 
and composition depending on presence of receptive females, food 
availability, and activity of the party (Lonsdorf 2007, p. 72; Lehmann 
and Boesch 2004, p. 207; Humle 2003, p. 17; Plumptre et al. 2003, p. 
9).
    Males remain in the community in which they were born; however, 
once females become sexually mature, between the ages of 9 and 13, they 
leave the community to join a new one (Humle 2003, p. 16). Chimpanzees 
are slow breeders; females do not give birth until they are 12 years of 
age or older and only have one infant every five or six years. Infants 
are weaned around four years old, and stay with their mothers until 
they are about eight to ten years old (Lonsdorf 2007, p. 72; Kormos 
2003, p. 1; Plumptre et al. 2003, pp. 8, 10, 13). The relationship 
between the mother and her offspring is critical; young may not survive 
being orphaned, even after they are weaned (Lonsdorf 2007, p. 72).

Essential Needs of the Species

    The chimpanzee lives in a variety of moist and dry forest habitats 
including savanna woodlands, mosaic grassland forests, and tropical 
moist forests (Oates et al. 2008, unpaginated; Pusey et al. 2007, p. 
626; GRASP 2005a, p. 6; Butynski 2003, p. 6). In general, chimpanzees 
need large areas to provide sufficient resources for feeding, nesting, 
and shelter (Carter 2003b, p. 158). However, home ranges may vary 
depending on the quality of habitat and community size; competition for 
food and predation risk may also play a role. Home ranges average 12.5 
km\2\ (8 mi\2\), but can range from 5-400 km\2\ (3-249 mi\2\) (Oates et 
al. 2008, unpaginated; Humle 2003, pp. 17-18).
    Chimpanzees are omnivores; half their diet is ripe fruit, but they 
also feed on leaves, bark, stems, insects, and mammals, including red 
colobus (Procolobus spp.), black-and-white colobus (Colobus guereza) 
and red-tailed guenons (Cephalophus monticola). Diets vary seasonally 
and between populations, depending on food availability and habitat 
type (Oates et al. 2008, unpaginated; Pusey et al. 2007, p. 626; Humle 
2003, pp. 13-14; Watts and Mitani 2002, p. 7).
    Chimpanzees build arboreal nests in which they sleep at night and 
may rest during the day (Plumptre et al. 2003, p. 10; Humle 2003, p. 
15). Nests are constructed by preparing a foundation of solid side 
branches, bending, breaking, and interweaving side branches crosswise, 
then bending smaller twigs in a circle around the rim. Chimpanzees 
exhibit strong preferences for certain tree species for nesting, 
independent of their availability in the habitat. Choice of nesting 
sites is variable across populations and communities of chimpanzees and 
is dependent on habitat structure, resource distribution, predation 
levels, and human disturbance. Chimps can be deterred from nesting in 
certain areas where human habitation is concentrated. As a result, 
human presence influences nesting behavior and can put chimpanzees at 
risk of predators, since habitats where they relocate nests to avoid 
humans may not provide sufficient protection (Humle 2003, pp. 15-16).

Range and Population

    Historically, this species may have spanned most of Equatorial 
Africa, from Senegal to southwest Tanzania, ranging over 25 countries 
(Butynski 2003, p. 6). Today, the chimpanzee has been lost from Benin, 
Togo, and Burkina Faso. The species now occurs in a wide but 
discontinuous distribution over 22 countries in an area approximately 
2,342,000 square kilometers (km\2\) (904,000 square miles (mi\2\)) 
(Carlsen et al. 2012, p. 5; Oates et al. 2008, unpaginated; Kormos and 
Boesch 2003, p. 1; Butynski 2003, p. 6).
    Chimpanzees are thought to have numbered in the millions at the 
beginning of the 20th Century, although there are no hard data to 
support this. Chimpanzee populations are believed to have declined by 
66 percent, from 600,000 to 200,000 individuals before the 1980s 
(Kormos and Boesch 2003, p. 1). Since the 1980s, estimates for the 
chimpanzee have varied, but in general have increased over the past 
three decades (See Table 1) (Oates 2006, pp. 102-104; Butynski 2003, p. 
10). Using the latest population estimates for each subspecies, the 
chimpanzee, today, totals between 294,800 and 431,100 individuals; 
although we note that this estimate does not factor in a recent 90 
percent decline in the chimpanzee population of C[ocirc]te d'Ivoire 
(see below). The range countries and most recent population estimates 
for each subspecies are outlined in Table 2.

[[Page 35210]]

[GRAPHIC] [TIFF OMITTED] TP12JN13.002

[GRAPHIC] [TIFF OMITTED] TP12JN13.003

    The increase in the chimpanzee population estimates is believed to 
be a result of the difficulty in producing accurate estimates and the 
availability of new information, rather than an actual increase in 
chimpanzee numbers (Oates 2006, p. 104). Accurate data is lacking for 
most of the chimpanzee populations. Few areas have been adequately 
surveyed; some chimpanzee populations survive at densities too low for 
accurate detection; survey methods lack precision to enable 
extrapolation to large areas of potential habitat; some surveys are 
outdated; and in many cases estimates are simply best guesses (Morgan 
et al. 2011, p. 9; Plumptre et al. 2010, pp. 5, 7, 9, 31, 41; Campbell 
et al. 2008, p. 904; Oates 2006, p. 102; Tutin et al. 2005, p. 6; GRASP 
2005a, p. 7; Butynski 2003, p. 5; Kormos and Bakarr 2003, p. 29;).
    Despite the appearance of an increase in chimpanzee numbers, 
experts agree that chimpanzee populations are declining (Plumptre et 
al. 2010, p. 1; Greengrass 2009, pp. 77, 80-82; Kabasawa 2009, p. 37; 
Campbell et al. 2008, pp. 903-904; Oates et al. 2008, unpaginated; 
Oates 2006, p. 110; Tutin 2005, p. 2; GRASP 2005a, p. 3; Kormos and 
Boesch 2003, p. 2; Butynski 2003, p. 11; Nishida et al. 2001, pp. 45-
46). Data to support a declining trend comes from nationwide surveys of 
Gabon, C[ocirc]te d'Ivoire, and Tanzania, data from long-term 
chimpanzee research sites, a questionnaire survey of great ape field 
researchers, and the expansion and increasing intensity of threats 
(Junker et al. 2012, p. 3; Plumptre et al. 2010, p. 8; Oates 2006, pp. 
105-106; Nishida et al. 2001, p. 45; Campbell et al. 2008, pp. 903-904; 
Tutin et al. 2005, p. 32). One of the greatest documented losses of 
chimpanzees comes from a 2007 survey of C[ocirc]te d'Ivoire which found 
a 90 percent decline in chimpanzees since the last survey conducted in 
1989-1990, indicating a significant loss of chimpanzees from a country 
once thought to be one of the final strongholds of the western 
chimpanzee (Campbell et al. 2008, p. 903). Many remaining populations 
are now small, isolated, and face serious threats (Oates 2006, pp. 104, 
110). Furthermore, the chimpanzee has already been extirpated from 
three countries. Due to the high risk of extinction for populations 
under 600 individuals (Oates 2006, p. 108), the chimpanzee could be 
extirpated from an additional four countries: Nigeria, Senegal, Ghana, 
and Guinea-Bissau (Carlsen et al. 2012, p. 5; Butynski 2003, p. 11; 
Kormos and Boesch 2003, p. 3).
    In addition to wild populations, chimpanzees are held in captivity 
in several countries around the world, including African countries and 
the United States. We do not have detailed information on the number, 
subspecies, or the location of captive chimpanzees. However, we did 
find information indicating that 70 chimpanzees are

[[Page 35211]]

living in sanctuaries in Cameroon and Nigeria (Morgan et al. 2011, p. 
9). Approximately 171 chimpanzees are living in sanctuaries throughout 
West Africa; another 478 chimpanzees in the region are known to be held 
outside of sanctuaries (e.g., homes or hotels) (Kormos and Boesch 2003, 
p. 4). Within the United States, approximately 2,000 chimpanzees are in 
captivity (ChimpCare 2013, unpaginated; Ross et al. 2008, p. 1,487).

Summary of Threats

    Threats to the chimpanzee have intensified and expanded since 1990, 
when wild populations of the chimpanzee were listed as endangered. 
Across its range, high deforestation rates are destroying, degrading, 
and fragmenting forests the chimpanzee needs to support viable 
populations and provide food and shelter. Widespread poaching, capture 
for the pet trade, and outbreaks of disease are removing individuals 
needed to sustain viable populations; recovery from the loss of 
individuals is more difficult given the slow reproductive rates of 
chimpanzees. These actions are exacerbated by an increasing human 
population, the expansion of settlements, and increasing pressure on 
natural resources to meet the needs of the growing population (Morgan 
et al. 2011, p. 10; Plumptre et al. 2010, p. 2; Kabasawa 2009, p. 37; 
Campbell et al. 2008, p. 903; Lonsdorf 2007, p. 72; Unti 2007a, p. 4; 
Unti 2007b, p. 5; Bennett 2006, p. 885; Tutin et al. 2005, p. 1; GRASP 
2005a, p. 3; Kormos 2003, pp. ix, 1; Kormos and Boesch 2003, p. 4; 
Nisbett et al. 2003, p. 97; Walsh et al. 2003, pp. 611-612; Carter et 
al. 2003, p. 38).
    Deforestation, with consequent access and disturbance by humans, 
remains a major factor in the decline of chimpanzee populations across 
their range. Although some large forest blocks remain, commercial 
logging and the conversion of forests to agricultural land continue to 
severely reduce and fragment chimpanzee habitat (Morgan et al. 2011, 
pp. 12, 18, 19, 26, 31; Plumptre et al. 2010, p. 2; Oates et al. 2008, 
unpaginated; Unti 2007a, p. 4; Unti 2007b, p. 5; CBFP 2006, p. 16; Fa 
et al. 2006, p. 498; Tutin et al. 2005, pp. 1, 2, 10, 12, 14-17, 21-23; 
Humle 2003, p. 150; Carter et al. 2003, p. 38; Duvall et al. 2003, p. 
47; Gippoliti et al. 2003, p. 57; Hanson-Alp et al. 2003, p. 83; 
Herbinger et al. 2003, pp. 106, 109; Kormos et al. 2003b, p. 71; Kormos 
et al. 2003c, p. 151; Magnuson et al. 2003, p. 113; Nisbett et al. 
2003, pp. 95, 97; Oates et al. 2003, p. 129; Walsh et al. 2003, p. 613; 
Parren and Byler 2003, p. 135). As the human population and economic 
development have increased, pressure on forest resources has also 
increased. This increasing pressure has led to uncontrolled legal and 
illegal forest conversion within and outside of protected areas (e.g., 
national parks and forest reserves), leaving them destroyed and 
fragmented (Greengrass 2009, pp. 77, 80; Campbell et al. 2008, p. 903; 
CBFP 2006, pp. 16, 33; Nasi et al. 2006, p. 14; Carter et al. 2003, p. 
38; Duvall et al. 2003, p. 47; Herbinger et al. 2003, p. 109; Magnuson 
et al. 2003, p. 113; Oates et al. 2003, p. 129; Parren and Byler 2003, 
pp. 135, 137).
    The natural protection once afforded to chimpanzees by large blocks 
of suitable habitat, isolated from human activities, is disappearing 
due to logging activity. Much of the chimpanzee's range is already 
allocated to logging concessions, and logging operations, both legal 
and illegal, are expanding (Morgan et al. 2011, pp. 12, 26; Laporte et 
al. 2007, p. 1451; Morgan and Sanz 2007, pp. 3, 5; CBFP 2006, p. 29; 
Hewitt 2006, p. 43; Nasi et al. 2006, p. 14; Tutin 2005, pp. 2, 4, 12, 
30, 32; Kormos et al. 2003a, p. 29). Heavy pressures on timber 
resources have led to cutting cycles that occur too frequently in an 
area to allow for proper regrowth, resulting in rapid degradation of 
forests (Parren and Byler 2003, p. 135). In addition to clearing 
forests, logging operations often create a network of roads for 
transporting timber. These roads provide greater access to forests that 
were once inaccessible, facilitate the establishment of human 
settlements, and are accompanied by further deforestation from the 
conversion of forests to agriculture (Junker et al. 2012, p. 7; Morgan 
et al., 2011, p. 12; Plumptre et al. 2010, p. 2; Greengrass 2009, p. 
80; Laporte et al. 2007, p. 1451; Hewitt 2006, p. 44; Duvall 2003, p. 
143; Oates et al. 2003, p. 129; Parren and Byler 2003, pp. 133, 137-
138).
    Human population growth and agricultural expansion have destroyed 
and fragmented forests across the range of the chimpanzee and are two 
of the greatest threats to chimpanzee survival. Plantations and farms 
have been established in suitable chimpanzee habitat, including within 
protected areas (Plumptre et al. 2010, p. 9; Greengrass 2009, p. 80; 
Unti 2007a, p. 4; Unti 2007b, p. 5; Tutin et al. 2005, p. 20; Duvall 
2003, p. 143; Gippoliti et al. 2003, pp. 55, 57; Hanson-Alp et al. 
2003, p. 83; Humle 2003, p. 147; Kormos et al. 2003b, p. 63; Magnuson 
et al. 2003, p. 113; Parren and Byler 2003, p. 138). In West Africa, 
most unreserved forests have been converted to cultivation (Parren and 
Byler 2003, p. 138). Agricultural practices are largely unsustainable 
and are encroaching into additional forested areas (Parren and Byler 
2003, p. 133).
    Chimpanzees are highly adaptive and occur in a variety of habitats, 
including primary, secondary, and regenerating forests, logged forests, 
and plantations; they have even been found living in close proximity to 
humans. However, the loss, or even the degradation, of the chimpanzee's 
traditional habitat can affect their survival by impacting its food 
resources, behavior, susceptibility to disease, and abundance and 
distribution, (Morgan and Sanz 2007, p. 1; Carter et al. 2003, p. 36; 
Hanson-Alp et al. 2003, p. 83; Kormos and Boesch 2003, p. 18; Nisbett 
et al. 2003, p. 97; Parren and Byler 2003, p. 137).
    Although chimpanzees feed on a wide variety of foods, their energy 
requirements, as large primates with large home ranges, predispose them 
to a reliance on high-energy fruits (Greengrass 2009, p. 81). Removal, 
or lowering the quality, of habitat through logging activity or 
establishment of agricultural lands destroys the structure and 
composition of the forest, eliminating essential food sources, which 
can affect sociability, condition of individuals, and female 
reproductive success, and increase vulnerability to diseases or 
parasites and infant and juvenile mortality (Greengrass 2009, pp. 81-
82). Even in areas with lower levels of logging where essential food 
sources were unaffected, chimpanzee densities have declined 
significantly and remained low for years. Clear-cutting results in 
total habitat loss, and because of severe soil erosion, the potential 
for future forest regeneration is also lost (Parren and Byler 2003, pp. 
137-138).
    The loss or reduction of food sources and the noise and disturbance 
from logging activity can cause chimpanzee communities to abandon their 
home range to find a new home range with sufficient resources and less 
human activity. These chimpanzees may enter another community's 
territory which can lead to further competition for resources and 
conflict that can lead to death. As habitat is lost or fragmented and 
chimpanzee populations are forced into smaller forest fragments, lethal 
interactions with other chimpanzees may increase. Furthermore, 
chimpanzees may be cautious about reinhabiting previous home ranges 
where they were displaced by humans (Morgan et al. 2011, p. 12; 
Lonsdorf 2007, p. 74; Carter et al. 2003, p. 36; Parren and Byler 2003, 
pp. 137-138). If the displacement of chimpanzees forces them into 
suboptimal habitat, they may not have sufficient protection from

[[Page 35212]]

predators, especially at night (Humle 2003, pp. 15-16).
    The loss or reduction of food sources due to expanding logging, 
agriculture, and human settlements into chimpanzee habitat has also 
resulted in increased conflicts between humans and chimpanzees 
(Tacugama Sanctuary 2013, unpaginated; Unti 2007b, p. 5; Tweheyo et al. 
2005, pp. 237-238, 244; Herbinger et al. 2003, p. 106; Humle 2003, p. 
147; Kormos et al. 2003b, p. 71; Naughton-Treves et al. 1998, pp. 597, 
600). Lack of sufficient wild food and an increase in farming and human 
presence have increased the occurrence of crop raiding to supplement 
their diet. Crop raiding can cause substantial losses to farmers, 
reduce the tolerance of humans to chimpanzee presence, and increase 
killing chimpanzees to protect valuable crops or in retaliation for the 
destruction of crops (Tacugama Chimpanzee Sanctuary 2013, unpaginated; 
Oates et al. 2008, unpaginated; Bennett et al. 2006, p. 885; Tweheyo et 
al. 2005, p. 245; Duvall 2003, p. 144; Carter et al. 2003, p. 36; 
Gippoliti et al. 2003, p. 57; Humle 2003, pp. 147, 150; Parren and 
Byler 2003, p. 138; Naughton-Treves 1998, p. 597).
    Unsustainable hunting for the bushmeat trade is one of the major 
causes of the decline in chimpanzees, and continues to be a major 
threat to the survival of chimpanzees in protected and unprotected 
areas (Ghobrial et al. 2011, pp. 1, 2, 11; Morgan et al. 2011, p. 10; 
Hicks et al. 2010, pp. 1, 3, 6, 11; Plumptre et al. 2010, p. 2; 
Kabasawa 2009, p. 37; Campbell et al. 2008, p. 903; Oates et al. 2008, 
unpaginated; Lonsdorf 2007, p. 74; Unti 2007b, p. 5; Tutin et al. 2005, 
pp. 1, 10-23, 27-28; Herbinger et al. 2003, p. 109; Humle 2003, p. 17; 
Kormos and Boesch 2003, pp. 2, 14, 16, 19; Kormos et al. 2003b, p. 63; 
Kormos et al. 2003c, p. 151; Magnuson et al. 2003, pp. 111, 113; 
Nisbett et al. 2003, p. 95; Oates et al. 2003, pp. 123, 129; Nishida et 
al. 2001, p. 47; Bowen-Jones 1998, p. 12). Growth in the human 
population in Africa has increased the demand for wild animal meat, or 
bushmeat. Expansion of logging activities, including the construction 
of logging roads, has facilitated a significant market, much of it 
illegal, for commercial bushmeat to meet this demand (Amati et al. 
2009, p. 6; Kabasawa 2009, pp. 50-51; AV Oates et al. 2008, 
unpaginated; Fa et al. 2006, pp. 503, 506; Magazine 2003, p. 7; Kormos 
et al. 2003c, p. 151; Walsh et al. 2003, p. 613; Nishida et al. 2001, 
p. 47; Bowen-Jones 1998, pp. 1, 11). Logging roads and vehicles provide 
access to the forests and a means to export meat to markets and cities. 
Logging operations are accompanied by an onslaught of workers who are 
encouraged to hunt to provide for their own needs and commercial 
hunters who operate in forests to supply the needs of forestry workers 
and to trade outside of the forested areas (Plumptre et al. 2010, p. 2; 
Kormos et al. 2003c, p. 151; Nisbett et al. 2003, p. 95; Walsh et al. 
2003, p. 613; Nishida et al. 2001, p. 47; Bowen-Jones 1998, p. 1). 
Furthermore, bushmeat trade is also an important livelihood and the 
primary source of protein for humans in much of the chimpanzee's range 
(Abwe and Morgan 2008, p. 26; Fa et al. 2006, p. 507; Bennett et al. 
2006, p. 885; Kormos et al. 2003c, p. 155; Wilkie and Carpenter 1999, 
p. 927).
    The intensity of hunting chimpanzees varies by country and region 
(Kormos et al. 2003c, pp. 151-152). Religious, traditional, and 
familial taboos against the killing of chimpanzees and the consumption 
of their meat exist in many areas (Hicks et al. 2010, p. 9; Plumptre et 
al. 2010, p. 2; Greengrass 2009, p. 81; Kabasawa 2009, p. 51; Unti 
2007a, p. 4; Carter et al. 2003, pp. 31, 38; Duvall et al. 2003, p. 47; 
Gippoliti et al. 2003, pp. 55, 57; Humle 2003, p. 18; Kormos and Boesch 
2003, pp. 10, 13; Kormos et al. 2003b, pp. 63, 71; Kormos et al. 2003c, 
pp. 152, 154; Nisbett et al. 2003, p. 95; Oates et al. 2003, p. 129; 
Waller and Reynolds 2001, p. 135; Bowen-Jones 1998, pp. 19, 27). 
However, these areas may be hunted by people from surrounding areas 
where there is demand for chimpanzee meat (Kormos et al. 2003b, p. 72). 
Furthermore, these traditions and beliefs are not necessarily being 
passed down to younger generations and cannot be relied on to protect 
chimpanzees in the future (Hicks et al. 2010, p. 9; Unti 2007a, p. 4; 
Oates et al. 2003, p. 129).
    Despite the high demand for bushmeat, primates do not represent the 
majority of animals killed for the bushmeat trade (AV Magazine 2003, p. 
7; Magnuson et al. 2003, p. 113; Walsh et al. 2003, p. 613; Nishida et 
al. 2001, p. 47; Bowen-Jones 1998, p. 1). In fact, studies have found 
that chimpanzee meat makes up only a small fraction of the meat found 
in markets; estimates from different regions have ranged from 0.01 to 3 
percent (Kabasawa 2009, p. 38; Fa et al. 2006, p. 502; Herbinger et al. 
2003, p. 106; Kormos and Boesch 2003, p. 2; Kormos et al. 2003c, pp. 
151-152). However, because the sale of ape meat is often hidden and the 
meat may be eaten in villages and never make it to markets, the 
proportion of chimpanzee meat in bushmeat markets could be greater than 
reported (Kabasawa 2009, p. 38; Kormos et al. 2003c, pp. 151-152; 
Bowen-Jones 1998, pp. 21-11). Hunting pressure even at a low level is 
enough to result in the local extirpation of large chimpanzee 
populations. Low population densities and slow reproductive rates 
prevent chimpanzees from recovering easily from the loss of several 
individuals (Oates et al. 2008, unpaginated; Fa et al. 2006, p. 503; AV 
Magazine 2003, p. 7; Duvall et al. 2003, p. 47; Herbinger et al. 2003, 
p. 106; Kormos and Boesch 2003, p. 2; Kormos et al. 2003c, pp. 151, 
153; Nisbett et al. 2003, p. 95; Magnuson et al. 2003, p. 113; Bowen-
Jones 1998, p. 13).
    Threats to the chimpanzee from habitat loss and commercial hunting 
have been exacerbated by civil unrest that has occurred in several 
chimpanzee range countries (Plumptre et al. 2010, pp. 4-5; Campbell et 
al. 2008, p. 903; CBFP 2006, p. 16; Hanson-Alp et al. 2003, p. 85; 
Nisbett et al. 2003, pp. 89, 95; Draulans and Van Krunkelsven 2002, pp. 
35-36). During civil conflict, many people, including refugees, 
military groups, and rebels take shelter in interior forests and 
protected areas (Plumptre et al. 2010, p. 4; CBFP 2006, p. 16). The 
presence of soldiers and displaced refugees increases the number of 
people that rely on bushmeat for protein. Not only do soldiers hunt, 
but they also supply locals with weapons and ammunition to hunt them 
(Plumptre et al. 2010, p. 5; Hanson-Alp et al. 2003, p. 85; Draulans 
and Van Krunkelsven 2002, pp. 35-36;). Civil unrest has contributed to 
a significant loss of wildlife, including chimpanzees (Campbell et al. 
2008, p. 903; Hanson-Alp et al. 2003, p. 85).
    Capture of live chimpanzees for the international pet trade has 
been one of the major causes of the decline in chimpanzees. Today, 
illegal capture and smuggling of chimpanzees continue for the pet trade 
across Africa and, to some extent, the international market (Ghobrial 
et al. 2010, pp. 1, 2, 11; Kabasawa 2009, pp. 37, 48-49; Oates et al. 
2008, unpaginated; Carter 2003b, p. 157; Kormos and Boesch 2003, p. 4; 
Nisbett et al. 2003, p. 95). A recent increase in orphaned chimpanzees 
has been attributed to the growing bushmeat crisis. Killing a mother 
with an infant earns twice the income for the hunter; the mother's body 
is sold in the bushmeat trade while the infant enters the pet trade 
(Kabasawa 2009, p. 50; Carter 2003b, p. 157). Furthermore, hunters have 
found a lucrative market for pet chimpanzees with military personnel, 
police, government officials, and traditional chiefs (Hicks et al. 
2010, p. 8; Draulans and Van Krunkelsven 2002, pp. 35-36). The 
intensity of trade differs among countries, but is

[[Page 35213]]

reportedly a substantial problem in The Democratic Republic of the 
Congo, C[ocirc]te d'Ivoire, Sierra Leone, Ghana, and Guinea (Hicks et 
al. 2010, pp. 3, 6, 11; Plumptre et al. 2010, p. 2; Unit 2007, p. 5; 
Unti 2007a, p. 4; Hanson-Alp et al. 2003, p. 84; Herbinger et al. 2003, 
p. 106; Kormos et al. 2003b, p. 72; Magnuson et al. 2003, p. 113). It 
is not possible to determine how many wild chimpanzees are captured for 
the pet trade, but the number of chimpanzees in sanctuaries indicates 
it is a significant problem. Since 2000, the number of chimpanzees in 
African sanctuaries has increased 59 percent (Kabasawa 2009, pp. 37, 
50).
    The petitioners assert that the exploitation of chimpanzees in the 
United States' entertainment and pet industries is seen around the 
world and misleads the public into believing chimpanzees are well 
protected in the wild and make good pets, further fueling the demand 
for chimpanzees. Studies suggest a link between seeing chimpanzees 
portrayed in the media and misperceptions about the species' status in 
the wild. This misperception may also affect conservation efforts (Ross 
et al. 2011, pp. 1, 4-5; Schroepfer et al. 2011, pp. 6-7; Ross 2008a, 
pp. 25-26; Ross et al. 2008b, p. 1487). However, we did not find 
evidence that this situation was a significant driver in the status of 
the species.
    The effects of the pet trade are particularly devastating to wild 
populations because the mother and other family members may be killed 
to capture an infant. Researchers estimate that as many as 10 
chimpanzees may be killed for every infant that enters the pet trade. 
Furthermore, the infant is likely to die of malnutrition, disease, or 
injury (Hicks et al. 2010, p. 8; Kabasawa 2009, p. 49; Lonsdorf 2007, 
p. 74; Carter 2003b, p. 157; Hanson-Alp et al. 2003, p. 84; Kormos and 
Boesch 2003, p. 4). The loss of even just a few individuals from a 
population can have devastating effects due to the slow reproductive 
rate of chimpanzees. Because so many chimpanzees may be killed to 
secure an infant, the pet trade has a significant draining effect on 
remaining populations, and threatens the survival of wild chimpanzees 
(Kabasawa 2009, p. 49; Carter 2003b, p. 157; Magnuson et al. 2003, p. 
113).
    Historically, wild chimpanzees were captured and exported to meet a 
significant demand for chimpanzees in biomedical research in countries 
around the world, significantly impacting chimpanzee distribution and 
abundance (Unti 2007a, p. 4; Unti 2007b, p. 5; Kormos et al. 2003b, p. 
72). A substantial number of countries do not permit or conduct 
research on chimpanzees and the international research community is no 
longer seeking access to wild chimpanzees (Hicks 2011, pers. comm.; 
Unti 2007a, p. 4; Unti 2007b, p. 5). Although some biomedical research 
on captive chimpanzees continues in the United States and Gabon, in the 
United States, there is a decreasing scientific need for chimpanzee 
studies due to the emergence of non-chimpanzee models and technologies 
(Institute of Medicine 2011, pp. 5, 66-67).
    As previously stated, chimpanzees are held in captivity in several 
countries around the world, including African countries and the United 
States. Chimpanzees in captivity are bred and sold as pets, used in the 
entertainment industry (e.g., movies, television, and advertisements), 
exhibited in hotels and roadside shows, used as party entertainment or 
animal encounters, displayed in zoos, and used for biomedical research. 
It is thought that self-sustaining breeding groups of captive 
chimpanzees provide surplus animals for research and other purposes, 
thereby reducing the demand for wild individuals. Given that threats to 
the chimpanzee have expanded and intensified, and capture for the 
illegal pet trade continues to be a major threat to remaining 
chimpanzee populations, it does not appear that the availability of 
captive chimpanzees has reduced any threats to the species.
    National laws exist within all range countries to protect 
chimpanzees. In general, hunting, capture, possession, and commercial 
trade of chimpanzees are prohibited. Laws also protect chimpanzee 
habitat, including the establishment of protected areas, in many of the 
range countries. However, as evidenced by the continuing and increasing 
habitat destruction and hunting and trading of this species, even 
within protected areas, these laws are not often enforced. A lack of 
resources, limited training, limited personnel, lack of basic 
logistical support, corrupt officials, and weak legislation prevent 
government agencies charged with the protection of wildlife and forest 
management from providing effective protection. Furthermore, penalties 
for violations are not adequate to serve as a deterrent (Ghobrial et 
al. 2010, pp. 1, 2, 11; Hicks et al. 2010, pp. 8-9; Kabsawa 2009, p. 
39; Laporte et al. 2009, p. 1451; Unti 2007a, pp. 4, 6, 8, 10-11; Unti 
2007b, pp. 6-10; Bennett et al. 2006, p. 885; AV Magazine 2003, p. 7; 
Carter 2003a, p. 52; Carter 2003b, p. 157; Carter et al. 2003, pp. 31, 
32, 38; Duvall et al. 2003, p. 47; Hanson-Alp et al. 2003, p. 79, 87; 
Herbinger et al. 2003, pp. 100, 106; Kormos and Boesch 2003, p. 6; 
Kormos et al. 2003b, p. 64; Kormos et al. 2003c, p. 155; Magnuson et 
al. 2003, p. 112; Nisbett et al. 2003, pp. 90, 95; Oates et al. 2003, 
pp. 123, 125).
    The chimpanzee is also protected under the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES), an international agreement between governments to ensure that 
the international trade of CITES-listed plant and animal species does 
not threaten species' survival in the wild. Under this treaty, CITES 
Parties (member countries or signatories) regulate the import, export, 
and reexport of specimens, parts, and products of CITES-listed plant 
and animal species. Trade must be authorized through a system of 
permits and certificates that are provided by the designated CITES 
Management Authority of each CITES Party. With the exception of Angola, 
all chimpanzee range countries are Parties to CITES.
    The chimpanzee is listed in Appendix I of CITES. An Appendix-I 
listing includes species threatened with extinction whose trade is 
permitted only under exceptional circumstances, which generally 
precludes commercial trade. The import of an Appendix-I species 
generally requires the issuance of both an import and export permit. 
Import permits for Appendix-I species are issued only if findings are 
made that the import would be for purposes that are not detrimental to 
the survival of the species and that the specimen will not be used for 
primarily commercial purposes (CITES Article III(3)). Export permits 
for Appendix-I species are issued only if findings are made that the 
specimen was legally acquired and trade is not detrimental to the 
survival of the species, and if the issuing authority is satisfied that 
an import permit has been granted for the specimen (CITES Article 
III(2)).
    Based on CITES trade data from 1990-2011, obtained from United 
Nations Environment Programme-World Conservation Monitoring Center 
(UNEP-WCMC) CITES Trade Database, there has been significant legal 
trade of chimpanzees and their parts, and products worldwide. However, 
legal trade in wild specimens, including live animals, bones, 
scientific specimens, and hair has been limited. Trade of these wild 
specimens for commercial purposes was reported for 14 live specimens, 
121 scientific specimens, and 10 skulls. From 2002-2011, exports and 
re-exports of wild specimens from the United States have numbered 8 
scientific specimens for scientific purposes. Imports of wild specimens 
into the United States have been limited

[[Page 35214]]

and have included hairs, scientific specimens, a skull, and one 
unspecified specimen for personal, scientific, educational, and medical 
purposes.
    As human settlements expand and populations of chimpanzees and 
their habitat are reduced, interactions between chimpanzees and humans 
or human waste increases, leading to greater risks of disease 
transmission. A close genetic relationship allows for easy transmission 
of infectious diseases between chimpanzees and humans (Plumptre et al. 
2010, p. 2; Oates et al. 2008, unpaginated; Lonsdorf 2007, p. 73; Tutin 
et al. 2005, p. 29; Formenty et al. 2003, p. 169; Huijbregts et al. 
2003, p. 437). Rural communities that share the same habitat as 
chimpanzees have no access to health care and are not vaccinated 
against diseases that can spread through ape populations and result in 
high mortality rates. Additionally, exposure to humans through 
conservation and research activities, such as habituation, ecotourism, 
and reintroductions can also increase the risk of disease transmission 
(Plumptre et al. 2010, p. 2; K[ouml]ndgen et al. 2008, p. 260; Oates et 
al. 2008, unpaginated; Tutin et al. 2005, p. 29; Huijbregts et al. 
2003, p. 437; Nishida et al. 2001, p. 48).
    Disease transmission is a major threat to remaining populations of 
the central and eastern chimpanzees (Morgan et al. 2011, p. 10; 
Plumptre et al. 2010, p. 2; GRASP 2005a, p. 7; Tutin et al. 2005, p. 2; 
Leendertz et al. 2004, p. 451; Walsh et al. 2003, p. 612). Repeated 
epidemics of Ebola virus have resulted in dramatic declines in ape 
populations in C[ocirc]te d'Ivoire, Gabon, Democratic Republic of the 
Congo, and the Republic of Congo (Plumptre et al. 2010, p. 2; 
K[ouml]ndgen et al. 2008, p. 261; Oates et al. 2008, unpaginated; Tutin 
et al. 2005, p. 29; Leendertz et al. 2004, p. 451; Huijbregts et al. 
2003, pp. 437, 441; Walsh et al. 2003, pp. 612-613; Formenty et al. 
2003, pp. 169-172). Other infectious diseases have resulted in the 
death of chimpanzees at Gombe, Mahale, and Ta[iuml] national parks 
(Rudicell et al. 2010, pp. 1, 10; Oates et al. 2008, unpaginated; 
K[ouml]ndgen et al. 2008, pp. 260-262; Williams et al. 2008, pp. 766, 
768-770; Leendertz et al. 2004, pp. 451-452; Nishida et al. 2001, p. 
48).
    Once a chimpanzee population has been reduced, whether by hunting, 
capture for the pet trade, or disease, its ability to recover is 
limited due to very slow reproductive rates and complex social behavior 
(Plumptre et al. 2010, p. 1; Kabasawa 2009, p. 49; Bennett et al. 2006, 
p. 885; Tutin et al. 2005, p. 32; Kormos et al. 2003c, pp. 151, 155; 
Wilkie and Carpenter 1999, p. 927;). Even low levels of hunting can 
have a devastating effect on the population. The loss of reproductive-
age female chimpanzees can be particularly devastating, further 
reducing the population's ability to recover from the loss (Carter 
2003b, p. 157; Kormos et al. 2003b, p. 72). The occurrence of 
chimpanzees at low densities coupled with slow reproductive rates can 
lead to the rapid extinction of even large populations (Oates et al. 
2008, unpaginated; Kormos and Boesch 2003, p. 2).
    The current threats to the chimpanzee, as described above, are not 
likely to improve in the future, resulting in a continuing decline of 
chimpanzee populations. Threats to this species are driven by the needs 
of an expanding human population. Within the range countries of the 
chimpanzee, the human population is expected to continue to increase 
and will inevitably increase the pressures on natural resources. 
Therefore, impacts to remaining populations of chimpanzees, as 
described above, from deforestation, hunting, commercial trade, and 
disease are likely to continue or even intensify (Morgan et al. 2011, 
p. 10 Plumptre et al. 2010, pp. 50, 71; Fitzherbert et al. 2008, pp. 
538-539, 544; Oates et al. 2008, unpaginated; CBFP 2006, p. 33; Fa et 
al. 2006, p. 506; Hewitt 2006, pp. 44, 48-49; Nasi et al. 2006, p. 14; 
Carter et al. 2003, p. 38; Duvall 2003, p. 145; Parren and Byler 2003, 
p. 137; Nishida et al. 2001, p. 45; Wilkie and Carpenter 1999, pp. 927-
928).
    Continuing threats acting on chimpanzee populations, coupled with 
the species' inability to recover from population reductions, will 
likely lead to the loss of additional populations. Chimpanzees could be 
lost from an additional three countries due to threats acting on 
populations that fall below what is considered the minimum for a viable 
population (Carlsen et al. 2012, p. 5; Butynski 2003, p. 11; Kormos and 
Boesch 2003, p. 3). Many remaining populations are small and isolated, 
putting them at an increased risk of extinction (Morgan et al. 2011, p. 
12).
    Many management plans have been developed to conserve the 
chimpanzee (e.g., Morgan et al. 2011; Plumptre et al. 2010; GRASP 
2005a; GRASP 2005b; Tutin et al. 2005; Kormos and Boesch 2003; Kormos 
et al. 2003). These plans lay out goals and research needs to address 
the threats faced by chimpanzees. Development of forest management 
plans with the goal of sustainable forestry practices has increased 
(Hewitt 2006, p. 43; Nasi et al. 2006, pp. 17-19). However, 
implementation of these management plans faces challenges, and the 
effect of these plans has yet to be determined. There is no evidence 
that management plans have reduced threats to the species. Chimpanzees 
are found in numerous protected areas. In some cases, these areas 
provide adequate protection and support substantial populations of 
chimpanzees. Unfortunately, many protected areas have weak or 
nonexistent management with poor law enforcement and are illegally 
logged, converted to agricultural lands, and hunted (Campbell et al. 
2011, p. 1). Furthermore, we have no evidence that enforcement of 
legislation to protect chimpanzees and their habitat, including 
protected areas, will improve.

Finding

    Section 4 of the Act (16 U.S.C. 1533) and implementing regulations 
(50 CFR part 424) set forth procedures for adding species to, removing 
species from, or reclassifying species on the Federal Lists of 
Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of 
the Act, a species may be determined to be endangered or threatened 
based on any of the following five factors:
    (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.
    In considering whether a species may warrant listing under any of 
the five factors, we look beyond the species' exposure to a potential 
threat or aggregation of threats under any of the factors, and evaluate 
whether the species responds to those potential threats in a way that 
causes actual impact to the species. The identification of threats that 
might impact a species negatively may not be sufficient to compel a 
finding that the species warrants listing. The information must include 
evidence indicating that the threats are operative and, either singly 
or in aggregation, affect the status of the species. Threats are 
significant if they drive, or contribute to, the risk of extinction of 
the species, such that the species warrants listing as endangered or 
threatened, as those terms are defined in the Act.
    As required by the Act, we conducted a review of the status of the 
species and considered the five factors in assessing whether the 
chimpanzee is in danger of

[[Page 35215]]

extinction throughout all or a significant portion of its range or 
likely to become endangered within the foreseeable future throughout 
all or a significant portion of its range. We examined the best 
scientific and commercial information available regarding the past, 
present, and future threats faced by the chimpanzee. We reviewed the 
petition, information available in our files, and other available 
published and unpublished information. We find that the chimpanzee is 
endangered by all five factors.
    In 1990, wild chimpanzees were listed as endangered due to habitat 
loss, excessive hunting, capture for the pet trade, disease, and lack 
of effective national and international laws. Since then, threats to 
the chimpanzee have only expanded and intensified. Habitat that is 
needed to support viable populations is being lost to logging 
operations and conversion to agriculture. Individuals needed to 
maintain viable populations are being lost to hunting for the bushmeat 
trade, trade in pet chimpanzees, disease, and conflicts with humans.
    Chimpanzees need large areas to provide sufficient resources for 
feeding, nesting, and shelter. Although some large forest blocks 
remain, logging and agricultural expansion have destroyed and 
fragmented much of the chimpanzee's habitat. The loss of suitable 
habitat is driving chimpanzees into smaller fragments of habitat closer 
to human settlements and creating competition for resources, increasing 
conflicts with humans, and increasing the risk of disease transmission. 
Human population growth and expansion of human activities have created 
a lucrative market for bushmeat and trade in live chimpanzees. Although 
chimpanzee meat constitutes only a small fraction of bushmeat found in 
markets, and the exact number of chimpanzees captured for the trade is 
unknown, these actions have drained chimpanzee populations. They are 
especially devastating because chimpanzees have slow reproductive rates 
and cannot easily recover from the loss of individuals. Laws exist 
throughout the range countries and internationally to protect the 
chimpanzee, but enforcement of national laws is lacking. Many 
populations are now small and isolated, putting them at a greater risk 
of extinction. Impacts to the chimpanzee are expected to continue into 
the future as the human population continues to expand and pressures on 
natural resources to meet the demands of the human population increase.
    The status of the chimpanzee has not improved since the wild 
population of the species was reclassified from threatened to 
endangered in 1990. Threats to the species have intensified and 
expanded across its range. Therefore, we find that endangered is the 
correct status for the chimpanzee throughout its range. We also 
examined the chimpanzee to analyze if any other listable entity under 
the definition of ``species,'' such as subspecies or distinct 
population segments, may qualify for a different status. However, 
because of the magnitude and uniformity of the threats throughout its 
range, we find that there are no other listable entities that may 
warrant a different determination of status. Since threats extend 
throughout the entire range, it is unnecessary to determine if the 
chimpanzee is in danger of extinction throughout a significant portion 
of its range. Therefore, on the basis of the best available scientific 
and commercial information, we have determined that the chimpanzee 
meets the definition of an endangered species under the Act. 
Consequently, we propose to revise the listing of chimpanzees under the 
Act so that all chimpanzees, wherever found, are listed as endangered.

Special Rule

    For threatened species, section 4(d) of the Act gives the Service 
discretion to specify the prohibitions and any exceptions to those 
prohibitions that are appropriate for the species, as well as include 
provisions that are necessary and advisable to provide for the 
conservation of the species. A special rule allows us to develop 
regulatory provisions that are tailored to the specific conservation 
needs of the threatened species and which may be more or less 
restrictive than the general provisions for threatened species at 50 
CFR 17.31.
    Currently, the captive chimpanzees in the United States, classified 
as threatened, are exempt from the general prohibitions for threatened 
species at 50 CFR 17.31 under a special rule for primates found at 50 
CFR 17.40(c). Because special rules can be applied only to threatened 
species, the special rule for captive chimpanzees will no longer be 
available if the proposed revision to the classification of all 
chimpanzees to endangered is finalized. Therefore, we also propose to 
remove the chimpanzee, including a provision specific to the 
chimpanzee, from the special rule.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, requirements for Federal 
protection, and prohibitions against certain practices. Recognition 
through listing results in public awareness, and encourages and results 
in conservation actions by Federal and state governments, private 
agencies and groups, and individuals.
    Section 7(a) of the Act, as amended, and as implemented by 
regulations at 50 CFR part 402, requires Federal agencies to evaluate 
their actions within the United States or on the high seas with respect 
to any species that is proposed or listed as endangered or threatened 
and with respect to its critical habitat, if any is being designated. 
However, given that the chimpanzee is not native to the United States, 
we are not designating critical habitat for this species under section 
4 of the Act.
    Section 8(a) of the Act authorizes the provision of limited 
financial assistance for the development and management of programs 
that the Secretary of the Interior determines to be necessary or useful 
for the conservation of endangered and threatened species in foreign 
countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to 
encourage conservation programs for foreign endangered species and to 
provide assistance for such programs in the form of personnel and the 
training of personnel.
    In 2000, the United States Congress passed the Great Ape 
Conservation Act to protect and conserve the great ape species, 
including the chimpanzee, listed under both the Endangered Species Act 
and CITES. The Great Ape Conservation Act granted the Service the 
authority to establish the Great Ape Conservation Fund to provide 
funding for projects that aim to conserve great apes through law 
enforcement training, community initiatives, and other conservation 
efforts. The Service's Wildlife Without Borders program, through the 
Great Ape Conservation Fund, is supporting efforts to fight poaching 
and trafficking in great apes; to increase habitat protection by 
creating national parks and protected areas; and to engage the 
community through local initiatives to conserve the most threatened 
great ape species.
    The Endangered Species Act and its implementing regulations set 
forth a series of general prohibitions and exceptions that apply to all 
endangered and threatened wildlife. These prohibitions, at 50 CFR 17.21 
and 17.31, in part, make it illegal for any person subject to the 
jurisdiction of the United States to ``take'' (take includes harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to 
attempt any

[[Page 35216]]

of these) within the United States or upon the high seas; import or 
export; deliver, receive, carry, transport, or ship in interstate or 
foreign commerce in the course of commercial activity; or sell or offer 
for sale in interstate or foreign commerce any endangered or threatened 
wildlife species. To possess, sell, deliver, carry, transport, or ship 
any such wildlife that has been taken in violation of the Act is also 
illegal. Certain exceptions apply to agents of the Service and State 
conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.22 for endangered species and 17.32 for threatened species. For 
endangered wildlife, a permit may be issued for scientific purposes, to 
enhance the propagation or survival of the species, and for incidental 
take in connection with otherwise lawful activities. For threatened 
species, a permit may be issued for the same activities, as well as 
zoological exhibition, education, and special purposes consistent with 
the Act.

Peer Review

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' that was 
published on July 1, 1994 (59 FR 34270), we will seek the expert 
opinion of at least three appropriate independent specialists regarding 
this proposed rule. The purpose of such review is to ensure listing 
decisions are based on scientifically sound data, assumptions, and 
analysis. We will send copies of this proposed rule to the peer 
reviewers immediately following publication in the Federal Register. We 
will invite these peer reviewers to comment, during the public comment 
period, on the specific assumptions and the data that are the basis for 
our conclusions regarding the proposal to list all chimpanzees as 
endangered under the Act.
    We will consider all comments and information we receive during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, our final decision may differ from this 
proposal.

Required Determinations

Clarity of Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the names of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that we do not need to prepare an environmental 
assessment, as defined under the authority of the National 
Environmental Policy Act of 1969, in connection with regulations 
adopted under section 4(a) of the Act for the listing, delisting, or 
reclassification of species. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any new information collections or 
recordkeeping requirements for which Office of Management and Budget 
(OMB) approval is required under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). We may not conduct or sponsor, and a person 
is not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

References Cited

    A list of all references cited in this document is available at 
http://www.regulations.gov at Docket No. FWS-R9-ES-2010-0086, or upon 
request from the U.S. Fish and Wildlife Service, Endangered Species 
Program, Branch of Foreign Species (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this proposed rule are staff members of the 
Branch of Foreign Species, Endangered Species Program, U.S. Fish and 
Wildlife Service.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless 
otherwise noted.

0
2. Amend Sec.  17.11(h) in the List of Endangered and Threatened 
Wildlife by:
0
a. Revising the entry for ``Chimpanzee (Pan troglodytes)'' (``Wherever 
found in the wild''); and
0
b. Removing the entry for ``Chimpanzee (Pan troglodytes)'' (``Wherever 
found in captivity'').
    The revision reads as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                                      * * * * * * *
Chimpanzee.......................  Pan troglodytes.....  Africa.............  Entire.............  E                   16, 376           NA           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 35217]]

0
3. Amend Sec.  17.40 by:
0
a. Revising paragraph (c)(1); and
0
b. Removing paragraph (c)(3).
    The revision reads as follows:


Sec.  17.40  Special rules--mammals.

    (c) * * *
    (1) Except as noted in paragraph (c)(2) of this section, all 
provisions of Sec.  17.31 apply to the lesser slow loris (Nycticebus 
pygmaeus); Philippine tarsier (Tarsius syrichta); white-footed tamarin 
(Saguinus leucopus); black howler monkey (Alouatta pigra); stump-tailed 
macaque (Macaca arctoides); gelada baboon (Theropithecus gelada); 
Formosan rock macaque (Macaca cyclopis); Japanese macaque (Macaca 
fuscata); Toque macaque (Macaca sinica); long-tailed langur (Presbytis 
potenziani); purple-faced langur (Presbytis senex); and Tonkin snub-
nosed langur (Pygathrix [Rhinopithecus] avunculus).
* * * * *

    Dated: May 31, 2013.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-14007 Filed 6-11-13; 8:45 am]
BILLING CODE 4310-55-P