[Federal Register Volume 77, Number 3 (Thursday, January 5, 2012)]
[Rules and Regulations]
[Pages 431-438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R9-IA-2010-0056; FF09A30000 123 FXGO16710900000R4]
RIN 1018-AX29
Endangered and Threatened Wildlife and Plants; Removal of the
Regulation That Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax,
and Dama Gazelle From Certain Prohibitions
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising
the regulations that implement the Endangered Species Act of 1973, as
amended (Act), by removing the exclusion of U.S. captive-bred live
wildlife and sport-hunted trophies of three endangered antelopes--
scimitar-horned oryx, addax, and dama gazelle--from the prohibition of
certain activities, such as take and export, under the Act. This change
to the regulations is in response to a court order that found that the
rule for these three species violated section 10(c) of the Act. These
three antelope species remain listed as endangered under the Act, and a
person will need to qualify for an exemption or obtain an authorization
under the current statutory and regulatory requirements to conduct any
prohibited activities.
DATES: This rule becomes effective on April 4, 2012. An extended
effective date is being provided to facilitate in outreach to the
affected communities. Several major industry events are occurring in
the beginning of 2012 where Service attendance will provide greater
communication on the impacts of this rule and will ensure greater
compliance by the affected communities. In addition, an extended
effective date will allow the affected community to either legally sell
their specimens, if they choose to divest themselves of these species,
or to apply for authorization or permits to continue carrying out
previously approved activities.
ADDRESSES: You may obtain information about permits or other
authorizations to carry out otherwise prohibited activities by
contacting the U.S. Fish and Wildlife Service, Division of Management
Authority, Branch of Permits, 4401 N. Fairfax Drive, Room 212,
Arlington, VA 22203; telephone: (703) 358-2104 or (toll free) (800)
358-2104; facsimile: (703) 358-2281; email:
[email protected]; Web site: http://www.fws.gov/international/index.html.
FOR FURTHER INFORMATION CONTACT: Robert R. Gabel, Chief, Division of
Management Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax
Drive, Suite 212, Arlington, VA 22203; telephone 703-358-2093; fax 703-
358-2280. If you use a telecommunications devise for the deaf (TDD),
call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
On September 2, 2005 (70 FR 52319), the Service determined that the
scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and
dama gazelle (Gazella dama) were endangered throughout their ranges
under the Act (16 U.S.C. 1531 et seq.). The numbers of these species of
antelopes in the wild have declined drastically in the deserts of North
Africa over the past 50 years. The causes of decline are habitat loss
(desertification, permanent human settlement, and competition with
domestic livestock), regional military activity, and uncontrolled
killing. With the exception of reintroduced animals, no sightings of
the scimitar-horned oryx have been reported since the late 1980s.
Remnant populations of the addax may still exist in remote desert
areas, but probably fewer than 600 occur in the wild. Only small
numbers of dama gazelle are estimated to occur in the species'
historical range, with recent estimates of fewer than 700 in the wild.
Captive-breeding programs operated by zoos and private ranches have
increased the number of these antelopes, while genetically managing
their herds and providing founder stock necessary for reintroduction.
The Sahelo-Saharan Interest Group (SSIG) of the United Nations
Environment Program estimated that there are 4,000-5,000 scimitar-
horned oryx, 1,500 addax, and 750 dama gazelle in captivity worldwide,
many of which are held in the United States. Based on a 2010 census of
its members, the Exotic Wildlife Association (EWA) estimates there are
11,032 scimitar-horned oryx, 5,112 addax, and 894 dama gazelle on EWA
member ranches.
On September 2, 2005 (the same date that we listed the three
antelopes as endangered), the Service also published a new regulation
(70 FR 52310) at 50 CFR 17.21(h) to govern certain activities with U.S.
captive-bred animals of these three species. For live antelopes,
including embryos and gametes, and sport-hunted trophies of these three
species, the regulation authorized certain otherwise prohibited
activities where the purpose of the activity is associated with the
management of the species in a manner that contributed to increasing or
sustaining captive numbers or to potential reintroduction to range
countries. These activities include take; export or re-import;
delivery, receipt, carrying, transport or shipment in interstate or
foreign commerce in the course of a commercial activity; and sale or
offer for sale in interstate or foreign commerce.
The promulgation of the regulation at 50 CFR 17.21(h) was
challenged as violating section 10 of the Act and the National
Environmental Policy Act (42 U.S.C. 4321 et seq.) in the United States
District Court for the District of Columbia (see Friends of Animals, et
al., v. Ken Salazar, Secretary of the Interior and Rebecca Ann Cary, et
al., v. Rowan Gould, Acting Director, Fish and Wildlife Service, et
al., 626 F. Supp. 2d 102 (D.D.C. 2009)). The Court found that the rule
for the three antelope species violated section 10(c) of the Act by not
providing the public an opportunity to comment on activities being
carried out with these three antelope species. On June 22, 2009, the
Court remanded the rule to the Service for action consistent with its
opinion.
[[Page 432]]
To comply with the Court's order, the Service published a proposed
rule on July 7, 2011 (76 FR 39804), to remove the regulation at 50 CFR
17.21(h), thus eliminating the exclusion for U.S. captive-bred
scimitar-horned oryx, addax, and dama gazelle from certain prohibitions
under the Act. Under the proposed rule, any person who intend to
conduct an otherwise prohibited activity with U.S. captive-bred
scimitar-horned oryx, addax, or dama gazelle would need to qualify for
an exemption or obtain authorization for such activity under the Act
and applicable regulations.
Removal of 50 CFR 17.21(h)
Under 50 CFR 17.21(h), individuals carrying out certain activities
that would contribute to increasing or sustaining the captive numbers
of the three species were not required to notify the Service of those
activities involving these species, provided that those activities met
the criteria established within these regulations. As the Service was
not notified of any proposed activities, it could not in turn provide
the public an opportunity to comment on those proposed activities. By
eliminating the regulation at 50 CFR 17.21(h) and requiring individuals
to submit an application, as described in 50 CFR 17.21(g) or 17.22,
requesting authorization to carry out an otherwise prohibited activity,
the Service can provide the public a 30-day period to comment on any
proposed activities. The elimination of this regulation does not alter
the current listing status of the species, but does now require that
the Service must grant individuals authorization prior to their
conducting any activity that is prohibited by the Act.
The Service considered whether there were alternative means to
comply with the Court's ruling without requiring ranches or other
facilities holding these species to obtain a permit or other
authorization. However, the Service was unable to identify an
alternative other than the currently established regulations at 50 CFR
17.21(g) and 17.22--providing for the registration of captive-bred
wildlife or issuance of a permit--that would provide the public an
opportunity to comment on proposed activities being carried out with
these species. In addition, the Service did not receive any comments or
suggestions from the public that presented a viable alternative (see
Summary of Comments and Our Responses, below).
Summary of Comments and Our Responses
In our proposed rule (July 7, 2011; 76 FR 39804), we asked
interested parties to submit comments or suggestions regarding the
proposal to eliminate the regulation at 50 CFR 17.21(h). The comment
period for the proposed rule lasted for 30 days, ending August 8, 2011.
We received 93 individual comments during the comment period. Comments
were received from 2 State agencies; 8 nongovernment organizations,
several of which commented jointly; and 86 individuals, most of whom
either own ranches that currently maintain animals of the three
antelope species or are associated with such ranches. Many of the
comments did not specifically address the reason for which the proposal
was made--that the exclusion violated the provisions of section 10(c)
of the Act--nor did they present alternatives to the proposal to
eliminate the regulation; instead the comments focused either on the
impact to the ranches if the regulation were eliminated or on the
listing of the species. Of the commenters, six supported the proposal
to eliminate the regulation, and 90 opposed the proposal either
directly or indirectly. Comments pertained to several key issues. These
issues, and our responses, are discussed below.
Issue 1: One commenter stated that sections 10(c) and 10(d) of the
Act mandates the Service to provide the required informational notice
and an opportunity to comment, but that the Court did not require the
Service to develop a new permitting scheme or adopt current permitting
processes to provide notice and comment. The commenter went on to
assert that the Court, by finding that the plaintiffs did not have
standing to challenge the merits of whether the activities conducted on
the ranches met the criteria of section 10(a)(1)(A) of the Act, had
concluded that the ranches were, therefore, meeting the enhancement
criteria and that any future permitting should be `pro forma.'
Three nongovernment organizations concluded that the Court gave the
Service no options but to vacate the regulation and apply the same
permitting scheme currently outlined in 50 CFR 17.22 for these three
antelope.
One commenter stated that, by choosing to impose a permit system
instead of some other means of addressing the Court's finding, the
Service failed to consider other options. The commenter expressed the
opinion that using the current permitting process would cause the three
species more harm than good. Two other commenters encouraged the
Service to consider all avenues and remedies and the effects they would
have on the three antelope species.
Our Response: The Service agrees that the Court's finding left us
no options but to rescind the current regulation at 50 CFR 17.21(h).
While the Service agrees that the Court did not mandate us to apply the
same permitting scheme established in 50 CFR 17.22 or the registration
process identified in 50 CFR 17.21(g), we could find no alternative
approach other than existing statutory and regulatory procedures.
Further, no commenters provided reasonable alternatives to this
approach (see Issue 15, below). Consequently, with the elimination of
the regulation at 50 CFR 17.21(h), anyone wishing to carry out
otherwise prohibited activities would need to either apply for a permit
(50 CFR 17.22) or for the captive-bred wildlife registration (50 CFR
17.21(g)).
The Service disagrees with the first commenter's statement that,
because the Court did not rule on the merits of whether the ranches
were meeting the enhancement criteria, the Court found that these
ranches provide enhancement. The Court did not rule one way or another
on the merits of the plaintiffs' case regarding the actions conducted
on ranches under sections 10(c) or 10(d). In addition, under 50 CFR
17.21(g) and 17.22, we cannot unquestionably accept that the activities
of a ranch with these species have a presumptive enhancement value and
therefore issue a permit or other authorization `pro forma.' Any
applicant requesting authorization to carry out an otherwise prohibited
activity would need to provide adequate information and documentation
in their application to show that they are meeting the issuance
criteria established at 50 CFR 17.21(g) or 17.22 before authorization
can be granted by the Service.
Issue 2: A large number (57) of commenters expressed concern that
ranchers and other private holders of captive-bred scimitar-horned
oryx, addax, and dama gazelle would no longer have an economic
incentive to manage the species if the exclusions were removed. Some
commenters went further in stating that the removal of the exclusion
would have substantial negative economic impacts on game farms and
related support industries, local economies, and jobs. Two commenters
stated that because most businesses involved with these species are
extremely small, often with only one or two employees, the proposed
regulation would be a significant burden and that any pressure that
affects local
[[Page 433]]
business and citizens may have a major impact on the viability of local
economies. One commenter stated that the review and statistical
findings of the annual economic impact of removing the exclusion was
``abstract at best, and incomplete, misleading, and irresponsible to
reality.'' This commenter stated that the use of $100 million by the
Office of Management and Budget (OMB) as the benchmark in evaluating
the merits of the economic impact of the consequences associated with
permit requirements has no quantitative support. The commenter felt
that OMB could not accurately quantify the financial impact of lifting
the permit requirements for these three species. Several commenters
said that the Service should keep the exclusion for captive-bred
individuals for the very reason that these species are doing fine
without any further government regulation.
Our Response: The elimination of this regulation should not result
in lower economic incentives or a negative economic impact, provided
that the ranches were carrying out activities that were approved under
the regulation. The regulation at 50 CFR 17.21(h) authorized certain
otherwise prohibited activities without a permit for individuals or
ranches that carried out activities that contributed to increasing or
sustaining captive numbers of these species. Further, the regulation
required each person or ranch claiming the benefits of the exclusion to
maintain accurate records of activities, including births, deaths, and
transfers of specimens. These same activities could be authorized under
50 CFR 17.21(g) or 17.22. Thus, there should be little or no reduction
of allowable activities. With the elimination of 50 CFR 17.21(h),
ranches, zoos, and private individuals that maintain these three
species will need to submit an application, including a nominal
application fee, in order to receive authorization for activities that
previously could have been conducted without a permit. We do not
believe, however, that the permitting process, including the
application fee or possible submission of records that should already
be maintained, will result in any significant financial burden. This is
particularly so given that the Service has made efforts in recent years
to streamline the permitting process and issue permits to authorize
multiple activities for an extended period of time.
The Service does recognize, however, that there may be an economic
impact if people believe that the elimination of this regulation
changes the status of the species and therefore creates a change in
activities that may be authorized. Provided that the ranch, zoo, or
individual is carrying out activities that benefit or enhance the
propagation or survival of the species, as was previously required
under the regulation at 50 CFR 17.21(h), otherwise prohibited
activities, including limited hunting for herd management purposes, can
be authorized. Ranches may need to redesign their marketing efforts,
but this change to the regulations should not stop ranches from
conducting activities that were previously authorized under 50 CFR
17.21(h).
The Service acknowledges the commenter's concern regarding the
benchmark in evaluating the merits of the economic impact on ranches.
However, the use of $100 million is set by Executive Order and the
Small Business Regulatory Enforcement Fairness Act. The Service does
not have the ability to establish an alternative benchmark or how the
review is conducted.
Issue 3: Two commenters wrote that the removal of the exclusion
leaves the Service with two possible solutions: either the species is
allowed to go extinct or the U.S. Government provides subsidies for a
mandated conservation plan. The commenters felt that both of these
options have negative outcomes--one results in extinction of the
species and the other increases government spending at a time when
cutbacks are needed.
Our Response: The Service disagrees that the removal of this
regulation will result in either the extinction of the species or the
need to subsidize conservation efforts. Many facilities and ranches
that currently maintain these species will continue to do so,
regardless of whether or not they are exempt from prohibitions under
the Act. We are confident of this because a number of similar species,
also bred and maintained in U.S. ranches, are subject to the same
permitting and registration requirements we will apply to the three
antelope species when 50 CFR 17.21(h) is removed (see DATES, above).
The species will not become extinct due to our actions under this
rulemaking. Further, the Service cannot provide subsidies to private
ranches or facilities to continue to maintain these species. We are
confident, however, that such subsidies are not necessary and that
many, if not all, operations will continue to maintain these species
and provide an ongoing conservation benefit to the species.
Issue 4: Thirty-two commenters pointed out that intensive wildlife
management by U.S. ranchers is the reason the species exist today.
These commenters were concerned that removal of the exclusion that
allows breeding and hunting of these animals without a permit would
impede private captive propagation of these species. They expressed the
view that the requirement of obtaining authorization or permits before
carrying out previously exempted activities would cause a significant
loss of critical genetic diversity because private holders, who retain
most of the captive animals of these three species in the United
States, might dispose of their current stock. Captive groups of these
species would shrink, and, potentially, the species would be allowed to
go extinct. In addition, they stated that the exclusion allows greater
numbers of these animals to be bred than the numbers bred by zoos,
wildlife parks, and individuals alone, thus maintaining a larger and
more diverse gene pool, which allows some ranchers to contribute
selected animals for possible reintroduction to their natural
environment.
Our Response: The Service does not believe that ranchers or other
holders of these species that are working for the conservation of the
species will reduce or eliminate their herds just because a permit or
other authorization will now be required. Ranches that currently have
other endangered hoofstock already obtain permits for the same
activities with those other species. The Act does not regulate
possession or purely intrastate activities (with the exception of
take). Provided that a ranch was legally carrying out activities that
were authorized under 50 CFR 17.21(h) before the elimination of that
regulation, the ranch should be able to continue those activities under
a permit or registration. There should be no reduction in herds that
were actually being used for conservation purposes.
It is possible, however, that the number of ranches or private
individuals that currently maintain these species could reduce the size
of their herds or remove them from their property under the belief that
maintaining them would be an economic burden. This reduction in the
number of herds should not significantly influence the genetics of the
remaining herds, if they are being properly maintained.
Issue 5: One commenter stated that the numbers of animals
maintained on ranches given in the proposed rule were incorrectly low
and that the Exotic Wildlife Association (EWA) has numbers that are
more accurate.
Our Response: The numbers identified in the proposed rule were
estimates based on the information
[[Page 434]]
available at the time the rule was drafted. The Service is aware that
EWA has conducted surveys that indicated the actual numbers might be
higher. This does not affect what the Service is legally required to do
given the Court order. We have incorporated EWA's estimates into this
final rule (see Background, above).
Issue 6: The Association of Zoos and Aquariums (AZA) expressed
concern that the elimination of the exclusion from prohibited
activities for the captive animals of these three species would
undermine their goal of maintaining genetic diversity. They expressed
concerns that their members' efforts in moving listed species have been
hampered by permit delays of 6 to 9 months while enhancement findings
are being made, which is problematic because there are very few in situ
conservation programs available for these species.
Our Response: The Service is unclear on how the removal of 50 CFR
17.21(h) will affect the ability of AZA facilities to maintain the
genetic diversity of the captive populations or to move animals as part
of this effort. Barring any failure on the part of the applicant to
meet the criteria for permit issuance, in only limited cases has the
permitting process for AZA facilities exceeded 120 days. Except for the
import or export of animals, no permits will be required for zoos to
move animals among institutions strictly for population management
purposes if there is no commercial activity involved.
Issue 7: Three nongovernmental organizations, in expressing their
support for the proposed rule, felt that rescinding the regulation
would further avoid a precedent that commercial exploitation is
automatically authorized merely on the theory that captive breeding, in
and of itself, will enhance the survival of listed species.
Our Response: While the Service does believe that captive breeding
can provide a significant benefit to endangered species, such benefits
can only be realized when the breeding program is scientifically based
and conducted in a manner that contributes to the continued survival of
the species. This was the basis for establishing the regulation at 50
CFR 17.21(h). However, breeding just to breed, without adequate
attention to genetic composition and demographics of the breeding
population, may not provide a clear conservation benefit to an
endangered species. Even absent 50 CFR 17.21(h), ranches, zoos, and
private individuals holding these three species should be able to
continue to maintain viable, well-managed, captive groups of animals
that can be used as a source of stock for reintroduction programs in
the future, if such actions are feasible and beneficial to the long-
term survival of the species, as has been done for a number of other
species.
Issue 8: Numerous commenters raised questions about the current
listing of the three species as endangered under the Act. One commenter
said that the U.S. captive-bred animals of these three species of
exotic antelopes should never have been included in the listing of the
species as endangered, because, in their opinion, the Act was not meant
to cover privately owned animals. Three commenters suggested that the
Service remove these species from the List of Endangered and Threatened
Wildlife at 50 CFR 17.11(h). Two commenters recommended that the
Service not finalize any permit scheme for these three species until
the Service has fully exhausted all options for altering the current
endangered species listing status for U.S. captive herds, making
permits unnecessary for these captive animals. One commenter argued
that to eliminate this exclusion without removing these species from
the List of Endangered and Threatened Wildlife would violate the
President's January 18, 2011, Executive Order (E.O. 13563), which
requires Federal agencies to ``identify and consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public.''
Our Response: The proposed rule only addressed the Court's finding
that the regulations at 50 CFR 17.21(h) violate section 10(c) of the
Act. Discussion of the listing status of these species, including
changing that status, is outside the scope of this rulemaking. Two
petitions have been submitted to the Service to request reconsideration
of the listing status of these species, but the Service must complete
this rulemaking now in order to comply with the Court order; we cannot
delay this action until the time when the petitions have been fully
addressed.
In addition to taking this action as necessary to comply with the
Court's order, the Service does not agree that eliminating 50 CFR
17.21(h) will violate the January 18, 2011, Executive Order. In fact,
the Executive Order calls on Federal agencies to develop regulations
that ``allow for public participation and an open exchange of ideas.''
While the elimination of 50 CFR 17.21(h) has been perceived as having a
significant economic impact on some ranches, it has been determined
that the benefits of this action justify its costs by impose the least
burden on society and identifying specify avenues for carrying out
otherwise prohibited activities.
Issue 9: Three commenters thought the Federal government should not
regulate the harvest of animals that are not native to the United
States. They felt that no permits should be needed to provide a
sustainable environment where exotic species can thrive and increase in
numbers. The Texas Department of Agriculture (DOA) believes that
``regulating the domestic management of these animals is beyond the
fundamental intent of the Endangered Species Act.''
Our Response: The Service disagrees. The Act specifically covers
any species that is listed as endangered or threatened, whether it is
native to the United States or non-native and whether it is in
captivity or in the wild. The prohibitions apply to all listed
specimens. But the Act's prohibitions are limited. Therefore, no
permits are required to breed or maintain a listed species. It is only
when an individual attempts to carry out an activity that is otherwise
prohibited under the Act, such as transport in interstate or foreign
commerce in the course of a commercial activity, import or export, or
take, that the Service has a mandate to regulate the activity.
Issue 10: The Texas Parks & Wildlife Department (TPW) expressed
concern about the possible unintended consequences of the proposed
rule. If the exclusion is revoked, the TPW is concerned that some
owners may release animals onto previously unoccupied range, leading to
uncontrolled population growth, damage to native plant communities, and
other potentially negative impacts on native habitat. Another commenter
expressed the same concern about the huge herds of free-ranging exotics
that have escaped from captivity throughout Texas, and believed it was
important that private landowners be able to continue to control and
manage exotic animals in order to prevent destruction of vegetation and
degradation of wild habitats by large numbers of native and exotic
ungulates. The commenter thought it was, ``critical that the state be
provided the option for exclusive jurisdiction over the management of
non-native, non-indigenous exotic pig, goat, sheep, elk, deer,
antelope, and gazelle species within the borders of that State.'' The
commenter felt that this would be consistent with the public trust
doctrine, under which the States are entrusted with regulatory
oversight of native wildlife resources and impacts of native wildlife.
Our Response: The Service does not expect this rule to result in
the intentional release of significant numbers of the three species
into
[[Page 435]]
previously unoccupied areas of the United States. However, the Service
does recognize that there are free-ranging herds of exotic species in
Texas and other States that have a negative impact on native vegetation
and wildlife. The Service also supports efforts carried out by various
States to control these exotic species to reduce their impacts on
native ecosystems. There are a number of exotic ungulates listed under
the Act as either endangered or threatened that are commonly held on
ranches in Texas and other States. We encourage cooperation between
State wildlife agencies and ranches that maintain exotic species to
develop best management practices to reduce the escape of exotic
species. Ongoing efforts are needed to coordinate Federal and State
efforts to control the spread of these listed exotics onto pristine
areas where native wildlife and vegetation could be affected.
Through the Act, Congress gave jurisdiction to determine which
species qualify as endangered or threatened, and responsibility for
their protection and recovery, to the Service and the National Marine
Fisheries Service. States are essential partners in endangered species
conservation, but only the Service can authorize activities with these
species that would be otherwise prohibited, and nothing under the
public trust doctrine affects this legal regime.
Issue 11: One commenter pointed out that the Service has no plan or
way of taking custody of or caring for any of the unwanted animals
resulting from the elimination of the exclusion at 50 CFR 17.21(h). The
commenter also felt that the Service or nongovernment organizations
that support the elimination of the regulation should provide a plan to
reimburse or compensate the owners of these animals for their lost
revenue and investment if the regulation is eliminated. Another
commenter questioned whether taking away the incentive for landowners
to propagate these species was in fact a case of ``de facto taking.'' A
third commenter felt it would be a taking if the final rule impedes his
ability to have economic benefit from maintaining herds of these
antelopes. Two other commenters did not think the government had the
right to control personal property. Finally, another commenter said
that the proposed elimination of 50 CFR 17.21(h) infringes on the free
market and private property rights.
Our Response: The commenter is correct that the Service has no
plans to take custody of any animals currently held on private property
or to compensate current owners for any perceived loss of revenue. Such
compensation or assuming custody of these species is not within the
Service's authority. Further, the Service disagrees that the
elimination of 50 CFR 17.21(h) constitutes a taking, because it does
not deprive the owners of these animals from continuing to derive an
economic benefit from them. This rule is not a taking of property
because individuals can obtain authorization for the same otherwise
prohibited activities with these three endangered antelopes when
issuance criteria are met as they had under 50 CFR 17.21(h). Provided
that a rancher meets the criteria for obtaining a permit, which are
similar or identical to the criteria established at 50 CFR 17.21(h) for
carrying out otherwise prohibited activities, the rancher will be able
to obtain a permit or authorization to carry out the same activities
that the rancher currently conducts. This rule does not infringe on any
property rights or adversely affect the free market when activities are
conducted in a manner consistent with the requirements of the Act.
Issue 12: A number of commenters raised the issue of hunting of
these species. Two commenters said that the Service should protect
endangered exotic wildlife from hunting and further killing. Three
other commenters stated that hunters have saved most of these animals
from decline and feel that hunting these animals should not be viewed
as a threat to species numbers. It is their supposition that the steady
hunting demand for these species has ensured the continued propagation
and survival of the species. They pointed to the conservation success
story of North American elk, white-tailed deer, waterfowl, and turkeys
as evidence that their survival is due in large part to the American
hunter.
Our Response: The Service has stated on numerous occasions that
scientifically based hunting programs can provide a benefit to the
long-term survival of a species. The American hunter has clearly
provided benefits to many species. Hunting of exotic species within the
United States can also benefit the survival of the species involved if
the hunting program and other activities with the species are carried
out in a manner that contributes to increasing or sustaining the number
of animals in captivity or to potential reintroduction to range
countries.
Issue 13: Several commenters suggested that the removal of the
exclusion at 50 CFR 17.21(h) is not based on logic, but rather on
political opinions and personal philosophies to end all hunting over
sound science, professional wildlife management, and demonstrated
success in preserving these species.
Our Response: The removal of the regulation at 50 CFR 17.21(h) is
based on the Court decision that the regulation is in violation of
section 10(c) of the Act. The Service could see no other option than to
remove this regulation to ensure that we complied with the Court order.
This action is not a reflection of the Service's position on hunting or
successes that have been achieved with the three antelope species or
any other species.
Issue 14: Two commenters thought that current conditions within the
native range of these species are not conducive to reintroduction. They
expressed the opinion that few governments of the native countries want
to protect or increase the numbers of these species and stated that the
repatriation project of the Second Ark Foundation and Exotic Wildlife
Association has met with many roadblocks.
Our Response: The Service understands that many factors contribute
to the successful reintroduction of a species to its native range. We
acknowledge that the Second Ark Foundation and Exotic Wildlife
Association have been confronted with obstacles to providing specimens
for reintroduction, and we understand that such reintroduction programs
can often be difficult in developing countries for any species.
Currently, we are aware that there are only a limited number of in situ
conservation programs available for these species, but that does not
affect how we must apply the requirements of the Act to their captive
animals in the United States.
Issue 15: Many commenters expressed concerns that the current
permitting process does not work well and is a disincentive to ranching
operations. Two commenters thought the Service should create an
alternative permitting process that includes an online submission
process to register herds and obtain take permits electronically,
develop the ability to receive electronic reports, develop
scientifically based cull requirements, and allocate permit application
fees to in situ conservation efforts. One commenter suggested that the
Service implement a herd inventory monitoring program to get additional
information for making permitting decisions. Several commenters
provided specific examples of how to improve the permitting process to
reduce unnecessary burdens in the interest of the species. Suggestions
included combining the application processes for registration under the
captive wildlife
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registration (50 CFR 17.21(g)) and take permits (50 CFR 17.22) or
revising the applications to be clearer. Other comments included moving
to an electronic application process, making permits valid for a longer
period of time, and reviewing and processing applications in a more
timely manner. One commenter, while believing no regulation is needed,
could accept some form of moderately priced, multi-year permit that
requires limited annual report data. One commenter said expectations
related to transfers between facilities, including breeding-only and
hunting-only operations, must be well defined in order to provide
landowners with a transparent process. Two commenters suggested working
with a State's wildlife authority to regulate and oversee the
permitting process to increase cooperation with landowners. The AZA
suggested that there needs to be a provision that allows AZA
institutions to engage in time-sensitive international movement of
these animals for noncommercial purposes, such as breeding loans or
reintroduction, without having to obtain additional permits.
Several commenters expressed opinions on what would constitute
enhancement or furthering the conservation of the species so that
permits or authorizations could be granted. Three nongovernment
organizations were concerned that the existing permitting system would
undermine the conservation of these antelope species due to questions
on whether or not current permits are being issued in accordance with
the Act. One commenter suggested that permits must provide flexibility
in harvest allowances to allow managers to maintain balanced numbers
relative to habitat carrying capacities. Another commenter recommended
that the permit address additional harvest protocols and emergency
response for when properties enter severe, extreme, or exceptional
drought.
Our Response: These comments are outside the scope of this
rulemaking because they do not address the Court's ruling that 50 CFR
17.21(h) violates section 10(c) of the Act and the rescission of
17.21(h). Nevertheless, the Service appreciates the comments and will
consider them as we develop ways to improve the efficiency and
effectiveness of our permitting process. We are currently working on
certain improvements, such as the development of electronic
applications and more timely review processes. We are considering other
efficiency improvements as well. We encourage anyone who has
recommendations on how to improve our current permitting process to
contact the Service's Division of Management Authority, Branch of
Permits (see ADDRESSES, above).
Issue 16: Two commenters recommended that the public comment period
for permit applications, which is currently 30 days, should be
eliminated, or reduced to no more than 14 days. In addition, they
suggested only comments offered by knowledgeable persons that actually
own or deal with the species should be considered.
Our Response: Section 10(c) of the Act specifies that the comment
period be 30 days. Because the 30-day comment period is set by statute,
we cannot shorten it by regulation. In addition, the Act states that
comments are welcome from any interested party, and therefore all
comments that are received during an open comment period are considered
.
Issue 17: One commenter suggested that any new regulations should
include an anti-harassment provision with a $10,000 fine for those who
use the information made available through the application process to
directly or indirectly harass or otherwise interfere with the
applicant's operation or business. Harassment should include the use of
deception or misrepresentation to get access to the applicant's private
operations.
Our Response: The Service does not have the authority to include an
anti-harassment provision in our regulations under the Act. There are
other legal remedies to address harassment. Information that is made
available through the public comment process is intended to provide the
public an understanding of the activities being proposed. It is not
intended to provide anyone with the opportunity to harass directly or
indirectly, or to interfere in lawfully conducted activities.
Issue 18: One commenter recommended that the definition of
``captive-bred'' be amended, ``to reflect only those animals and
genetic materials designated for potential reintroduction under the
direction of scientists of the Association of Zoos and Aquariums (AZA)
institutions for all non-native, non-indigenous exotic pig, goat,
sheep, elk, deer, antelope and gazelle species.'' The commenter
suggested that this could be used as a basis to exempt privately raised
animals on Texas ranches from any rules defining ``captive-bred''
animals.
Our Response: The proposed rule only addressed the Court's finding
that the regulations at 50 CFR 17.21(h) violate section 10(c) of the
Act. Discussion of the definition of ``captive-bred'', including
changing that definition within the regulations, is outside the scope
of this rulemaking. However, the Act specifically covers any species
that is listed as endangered or threatened, whether it is in captivity,
including those that are captive-bred or wild. The prohibitions apply
to all listed specimens. Changes to the definition would not be a basis
for exempting privately raised animals.
Consistent with the Court's ruling that the regulation at 50 CFR
17.21(h) is in violation of section 10(c) of the Act and following
consideration of all comments, the Service is eliminating the
regulation at 50 CFR 17.21(h). When the final rule takes effect (see
DATES, above), individuals who intend to carry out otherwise prohibited
activities will need to have authorization either under 50 CFR 17.21(g)
or 17.22.
Required Determinations
Regulatory Planning and Review--Executive Order 12866: The Office
of Management and Budget (OMB) has determined that this rule is not
significant under Executive Order 12866. OMB bases its determination
upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act: Under the Regulatory Flexibility Act
(as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever a Federal agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions) (5
U.S.C. 601 et seq.). However, no regulatory flexibility analysis is
required if the head of an agency certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. Thus, for a regulatory flexibility analysis to be required,
impacts must exceed a threshold for ``significant impact'' and a
threshold for a ``substantial number of small entities.'' See 5 U.S.C.
605(b).
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SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities.
The U.S. Small Business Administration (SBA) defines a small
business as one with annual revenue or employment that meets or is
below an established size standard. We expect that the majority of the
entities involved in taking, exporting, re-importing, and selling in
interstate or foreign commerce of these three endangered antelopes are
considered small as defined by the SBA.
This rule requires individuals and captive-breeding operations of
the three endangered antelopes to apply for authorization and pay an
application fee of $100 to $200 every 1-5 years, depending on the type
of permit or authorization, when conducting certain otherwise
prohibited activities. While there are no accurate numbers of U.S.
facilities with these animals, estimates range as high as about 400. It
is not clear if all of these facilities would be conducting activities
that would be otherwise prohibited under the Act; however, if the total
is 400 and they all require permits for continuing activities they have
been conducting under the exclusion that is being rescinded, the
maximum annual cost to all of them for obtaining permits would be about
$50,000-60,000. The regulatory change is not major in scope and creates
only a modest financial or paperwork burden on the affected members of
the general public.
We, therefore, certify that this rule will not have a significant
economic effect on a substantial number of small entities as defined
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A
regulatory flexibility analysis is not required. Accordingly, a small
entity compliance guide is not required.
Small Business Regulatory Enforcement Fairness Act: This rule is
not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory
Enforcement Fairness Act. This rule:
a. Will not have an annual effect on the economy of $100 million or
more. This rule removes the regulation at 50 CFR 17.21(h) that excludes
U.S. captive-bred scimitar-horned oryx, addax, and dama gazelle from
certain prohibitions of the Act. Current estimates indicate that about
12,000 to 13,000 of these animals occur in captive-breeding operations
in the United States. About 11,000 are scimitar-horned oryx with a
value of $1,500 to $3,000 each (based on internet advertisements), for
a total value of $33,000,000, although only a fraction of these are
sold for breeding or as trophies annually. Addax and dama gazelle are
fewer in number (several hundred each), but more valuable as both
breeding stock and trophies, with values of mature animals up to
$4,000-$6,000 each. Assuming 2,000 animals of these two species at a
value of $4,000 each, the total value is $8,000,000, but again the
revenue generated by these animals will be a fraction of this amount
because breeding operations will retain a significant portion of their
animals for further breeding. Individuals and captive-breeding
operations will now need to qualify for an exemption or obtain
endangered species permits or other authorization to engage in certain
otherwise prohibited activities. Permit application fees of $100-$200
will be required for anyone seeking permits, and we estimate up to 400
potential permit applicants, although some authorizations will remain
in effect for up to 5 years from one application. This rule does not
have a negative effect on this part of the economy. It will affect all
businesses, whether large or small, the same. There is not a
disproportionate share of benefits for small or large businesses.
b. Will not cause a major increase in costs or prices for
consumers; individual industries; Federal, State, tribal, or local
government agencies; or geographic regions. This rule will result in a
small increase in the number of applications for permits or other
authorizations to conduct otherwise prohibited activities with these
three endangered antelope species.
c. Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act: Under the Unfunded Mandates Reform
Act (2 U.S.C. 1501, et seq.):
a. This rule will not significantly or uniquely affect small
governments. A small government agency plan is not required.
b. This rule will not produce a Federal requirement of $100 million
or greater in any year and is not a ``significant regulatory action''
under the Unfunded Mandates Reform Act.
Takings: Under Executive Order 12630, this rule will not have
significant takings implications. A takings implication assessment is
not required. This rule does not have takings implications because
individuals can still obtain authorization for the same otherwise
prohibited activities with these three endangered antelopes when
issuance criteria are met.
Federalism: This revision to part 17 does not contain significant
Federalism implications. A federalism impact summary statement under
Executive Order 13132 is not required.
Civil Justice Reform: Under Executive Order 12988, the Office of
the Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of subsections 3(a) and
3(b)(2) of the Order.
Paperwork Reduction Act: The Office of Management and Budget
approved the information collection in part 17 and assigned OMB Control
Numbers 1018-0093 and 1018-0094. This rule does not contain any new
information collections or recordkeeping requirements for which OMB
approval is required under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). We may not conduct or sponsor and a person is not
required to respond to a collection of information unless it displays a
currently valid OMB control number.
National Environmental Policy Act (NEPA): The Service has
determined that this rule is a regulatory change that is administrative
and legal in nature. The rescission of this rule responds to a Court
ruling finding that 50 CFR 17.21(h) violates section 10(c) of the Act
and remanding to the agency for further proceedings consistent with its
opinion. As such, the rule is categorically excluded from further NEPA
review as provided by 43 CFR 46.210(i) of the Department of the
Interior's Implementation of the National Environmental Policy Act of
1969 regulations (73 FR 61292; October 15, 2008). No further
documentation will be made.
Government-to-Government Relationship with Tribes: Under the
President's memorandum of April 29, 1994, ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951) and
512 DM 2, we have evaluated possible effects on federally recognized
Indian Tribes and have determined that there are no effects.
Energy Supply, Distribution or Use: On May 18, 2001, the President
issued Executive Order 13211 on regulations that significantly affect
energy supply, distribution, and use. This rule does not significantly
affect energy supplies, distribution, and use. Therefore, this action
is a not a significant energy action, and no Statement of Energy
Effects is required.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
[[Page 438]]
recordkeeping requirements, Transportation.
Regulation Promulgation
For the reasons given in the preamble, we are amending part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as follows:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
Sec. 17.21 [Amended]
0
2. Amend Sec. 17.21 by removing paragraph (h).
Dated: December 27, 2011.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-23 Filed 1-3-12; 11:15 am]
BILLING CODE 4310-55-P