[Federal Register Volume 76, Number 130 (Thursday, July 7, 2011)]
[Proposed Rules]
[Pages 39804-39807]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16982]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R9-IA-2010-0056; 96300-1671-0000-R4]
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: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
revise the regulations that implement the Endangered Species Act (Act).
This action would eliminate the exclusion of U.S. captive-bred live
wildlife and sport-hunted trophies of three endangered antelopes--
scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and
dama gazelle (Gazella dama)--from certain prohibited activities, such
as take and export, under the Act. This proposed 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 would need to qualify for an exemption or obtain an
authorization under the current statutory and regulatory requirements
to conduct any prohibited activities.
DATES: We will consider comments received or postmarked on or before
August 8, 2011.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments on Docket No. FWS-R9-
IA-2010-0056.
[[Page 39805]]
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R9-IA-2010-0056; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mails or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section at
the end of SUPPLEMENTARY INFORMATION for further information about
submitting comments).
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 device 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. No sightings of the scimitar-horned oryx had been reported
since the late 1980s, and the species may now be extinct in the wild.
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 its 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.
Thus, on September 2, 2005 (the same date that we listed the three
antelopes as endangered), the Service added a new regulation (70 FR
52310) at 50 CFR 17.21(h) to govern certain activities with U.S.
captive-bred animals of these three species. For live antelopes,
including embryos and gametes, and sport-hunted trophies of these three
species, the regulation authorized certain otherwise prohibited
activities that enhance the propagation or survival of the species.
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.
Captive-breeding programs have played a role in the conservation of
the scimitar-horned oryx, addax, and dama gazelle, and we found that
activities associated with captive breeding within the United States
enhance the propagation or survival of the species by managing the
species to ensure genetic integrity and diversity, serving as
repositories for surplus animals, and facilitating the movement of
specimens between breeding facilities. Some U.S. captive-breeding
facilities allow sport hunting of surplus captive-bred animals, which
generates revenue to support the operations and may relieve hunting
pressure on wild populations.
In the September 2, 2005, rule at 70 FR 52310, we published the
final rule that found that the regulatory framework we were
establishing at 50 CFR 17.21(h) met the standards for both enhancing
the propagation and enhancing the survival of U.S captive-bred
scimitar-horned oryx, addax, and dama gazelle as shown by the findings
for each of the criteria found at 50 CFR 17.22(a)(2) for endangered
species permits. We found that 50 CFR 17.21(h) protects populations in
the wild, ensures appropriate management of U.S. captive-bred
specimens, and encourages continued captive breeding and management of
these species. In addition, we made the required findings under section
10(d) of the Act. We also determined that the rulemaking process that
amended 50 CFR 17.21 by adding a new paragraph (h) satisfied the
requirements for notification and opportunity for public comment under
section 10(c). Therefore, persons who wished to engage in specified
otherwise prohibited activities with U.S. captive-bred scimitar-horned
oryx, addax, and dama gazelle, when such activities meet the criteria
of 50 CFR 17.21(h), could do so without obtaining an individual
endangered species permit.
Proposed Removal of 50 CFR 17.21(h)
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 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. On June 22, 2009, the Court
remanded the rule to the Service for action consistent with its
opinion.
To comply with the Court's order, the Service proposes to remove
the regulation at 50 CFR 17.21(h) and eliminate the exemption for U.S.
captive-bred scimitar-horned oryx, addax, and dama gazelle from certain
prohibitions under the Act. Any person who wishes 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 current statutes or
regulations.
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 (E.O. 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,
[[Page 39806]]
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 would 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). SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule would 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
would be considered small as defined by the SBA.
This proposed rule would require individuals and captive-breeding
operations of the three endangered antelopes to apply for authorization
and pay an application fee of $100-$200 and apply for a permit when
conducting certain otherwise prohibited activities. The regulatory
change is not major in scope and would create only a modest financial
or paperwork burden on the affected members of the general public.
We, therefore, certify that this rule would 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 proposed
rule is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. This proposed rule:
a. Would not have an annual effect on the economy of $100 million
or more. This rule proposes to remove the regulation that excludes U.S.
captive-bred scimitar-horned oryx, addax, and dama gazelle from certain
prohibitions of the Act. If finalized, individuals and captive-breeding
operations would need to qualify for an exemption or obtain endangered
species permits or other authorization to engage in certain otherwise
prohibited activities. This proposed rule would 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. Would 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 would 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. Would 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 proposed rule would not significantly or uniquely affect
small governments. A Small Government Agency Plan is not required.
b. This proposed rule would 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 would not have
significant takings implications. A takings implication assessment is
not required. This proposed rule is not considered to have takings
implications because it allows individuals to obtain authorization for
otherwise prohibited activities with these three endangered antelopes
when issuance criteria are met.
Federalism: This proposed revision to part 17 does not contain
significant Federalism implications. A Federalism Assessment under
Executive Order 13132 is not required.
Civil Justice Reform: Under Executive Order 12988, the Office of
the Solicitor has determined that this proposed 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 proposed 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 proposed rule is a regulatory change that is
administrative and legal in nature. As such, the proposed rule is
categorically excluded from further NEPA review as provided by 43 CFR
46.210(i), of the Department of the Interior Implementation of the
National Environmental Policy Act (73 FR 6129269 (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 proposed rule would 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.
Clarity of this Regulation: We are required by Executive Orders
12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to
write all rules in plain language. This means that each rule we publish
must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Public Comments
You may submit your comments and materials concerning this rule by
one of the methods listed in the ADDRESSES section. We will not accept
comments sent by e-mail or fax or to an address not listed in the
ADDRESSES section.
We will post your entire comment--including your personal
identifying information--on http://
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www.regulations.gov. If you provide personal identifying information in
your written comments, you may request at the top of your document that
we withhold this information from public review. However, we cannot
guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service; Division of Management Authority; 4401 N. Fairfax
Drive, Suite 212; Arlington, VA 22203; telephone, (703) 358-2093.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
For the reasons given in the preamble, we propose to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as follows:
PART 17--[AMENDED]
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]
2. Amend Sec. 17.21 by removing paragraph (h).
Dated: January 25, 2011.
Eileen Sobeck,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-16982 Filed 7-6-11; 8:45 am]
BILLING CODE 4310-55-P