[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: 
managementauthority@fws.gov; 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

[[Page 436]]

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