[Federal Register Volume 88, Number 61 (Thursday, March 30, 2023)]
[Rules and Regulations]
[Pages 19004-19017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06312]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2020-0114; FF09E22000 FXES1111090FEDR 234]
RIN 1018-BD04
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Egyptian Tortoise
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are listing
the Egyptian tortoise (Testudo kleinmanni; syn. Testudo werneri), a
terrestrial tortoise from Libya, Egypt, and Israel, as a threatened
species with a rule issued under section 4(d) of the Endangered Species
Act of 1973 (Act), as amended. The rule issued under section 4(d) of
the Act provides measures that are necessary and advisable to provide
for the conservation of this species.
DATES: This rule is effective May 1, 2023.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at https://www.regulations.gov at Docket No. FWS-
HQ-ES-2020-0114.
FOR FURTHER INFORMATION CONTACT: Bridget Fahey, Chief, Division of
Conservation and Classification, Ecological Services, U.S. Fish and
Wildlife Service, MS: ES, 5275 Leesburg Pike, Falls Church, VA 22041-
3803; telephone, 703-358-2171. Individuals in the United States who are
deaf, deafblind, hard of hearing, or have a speech disability may dial
711 (TTY, TDD, or TeleBraille) to access telecommunications relay
services. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Previous Federal Actions
Please refer to the proposed listing rule for the Egyptian tortoise
published in the Federal Register on November 9, 2021 (86 FR 62122),
for a detailed description of previous Federal actions concerning this
species.
Summary of Changes From the Proposed Rule
In preparing this final rule, we reviewed and fully considered
comments from the public on our November 9, 2021, proposed rule. In
this final rule, we make only two minor changes from the proposed rule:
(1) We clarify that the listed entity of Egyptian tortoise (Testudo
kleinmanni) includes the scientific name Testudo werneri as an accepted
synonym; and (2) we present new information on the species' population
size, based on updated information regarding the size of the population
in Israel. Additionally, while the preambular discussion in this final
rule is not as detailed as the proposed rule, it is not meant to imply
any changes between the proposed and final rules.
Summary of Comments and Recommendations
In the proposed rule published on November 9, 2021 (86 FR 62122),
we requested that all interested parties submit written comments on the
proposal by January 10, 2022. We also contacted appropriate Federal
agencies, scientific experts, organizations, and management authorities
from the range countries, as well as other interested parties, and
invited them to comment on the proposal. All substantive information we
received during the comment period has either been incorporated
directly into this final determination or is addressed below.
Peer Reviewer Comments
We received comments from three peer reviewers. We reviewed all
comments for substantive issues and new information regarding the
information contained in the species status assessment (SSA) report.
The peer reviewers generally concurred with our methods and
conclusions, and provided additional information, clarifications, and
suggestions to improve the final SSA report. Comments from peer
reviewers provided general technical corrections and updates on status
of the species within the range countries. We incorporated the peer
reviewer comments into the final SSA report as appropriate.
Public Comments
Comment (1): Numerous commenters stated that the Act (16 U.S.C.
1531 et seq.) was only meant to protect species native to the United
States and the Egyptian tortoise should not be listed because it is a
foreign species.
Response: The Act does not distinguish between domestic and foreign
species as it applies to our responsibilities to determine whether
species are endangered or threatened. For example, the broad
definitions of ``species,'' ``fish or wildlife,'' and ``plant'' in
section 3 of the Act (16 U.S.C. 1532) do not differentiate between
species native to the United States, species native to both the United
States and one or more other countries, and species not native to the
United States. Further, sections 4(b)(1)(A) and 4(b)(1)(B) of the Act
(16 U.S.C. 1533(b)(1)(A) and (b)(1)(B)) expressly require the Service
to consider efforts by a foreign nation prior to making a listing
determination. The Act's section 4(b)(5)(B) (16 U.S.C. 1533(b)(5)(B))
expressly requires the Service, insofar as practical, to provide notice
of proposed regulations to and invite comment from foreign nations in
which a species is believed to occur. Additionally, the findings and
purposes at sections 2(a) and 2(b) of the Act (16 U.S.C. 1531(a) and
(b)) also speak to the application of the Act to foreign species, and
numerous provisions of the Act and its implementing regulations refer
to foreign jurisdictions (e.g., 16 U.S.C. 1537 and 1537a, 50 CFR
424.11(e)). In summary, if a species meets the Act's definition of an
endangered or threatened species, the Service must list that species
regardless of the country where it is found.
Comment (2): Numerous commenters stated there is no demonstrable
benefit to listing the Egyptian tortoise under the Act because it is
already protected by the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES).
Response: The purpose of CITES is to ensure that international
trade in plants and animals does not threaten their survival in the
wild. Protection provided by other laws, such as CITES, was taken into
consideration when determining the status of the species. However,
simply being protected by these other laws does not preclude the need
to list a species under the Act if it meets the Act's definition of an
endangered or threatened species. Further, while the Egyptian tortoise
is already protected by CITES, additional conservation measures are
provided to species listed as endangered or
[[Page 19005]]
threatened under the Act, including recognition, requirements for
Federal protection, and prohibitions against certain activities with
the species. Recognition through listing results in public awareness
and may encourage and result in conservation actions by foreign
governments, Federal and State governments, private agencies and
interest groups, and individuals. For example, listing the Egyptian
tortoise under the Act can support the conservation efforts undertaken
for the species in Libya, Egypt, and Israel, as well as under the
CITES' Appendix-I listing, including research efforts to address
conservation needs and funding for range-country conservation.
Listing under the Act can also help ensure that the United States
and its citizens do not contribute to the further decline of the
Egyptian tortoise through resulting Federal protections and
prohibitions on certain activities such as import, export, take,
interstate commerce, and foreign commerce (see also Available
Conservation Measures, below). For instance, adding a violation under
the Act on top of a CITES violation could serve as an additional
disincentive for any illegal trade in the species.
Comment (3): One commenter recommended that both Testudo kleinmanni
and Testudo werneri be used as scientific names when listing the
species under the Act.
Response: The valid taxonomic status of the Egyptian tortoise is
Testudo kleinmanni, and Testudo werneri is accepted as a junior synonym
(ITIS 2022, unpaginated; Attum et al. 2007a, p. 399). Thus, in this
rule, we clarify that the Egyptian tortoise includes Testudo werneri as
a synonym for Testudo kleinmanni, and we include the synonym Testudo
werneri in the entry for the species in the List of Endangered and
Threatened Wildlife at 50 CFR 17.11(h). All Egyptian tortoises are
included in this rule. See the SSA report for a thorough discussion of
the taxonomic status of the species (Service 2022, pp. 2-4).
Comment (4): One commenter stated that the species is extinct in
Egypt, and another commenter stated that the species occurs in very low
numbers in the North Coast of Egypt.
Response: According to the best available information, both of
these statements regarding the status of the species in Egypt are
inaccurate. The Egyptian tortoise is extant in Egypt as it occurs in a
very small population east of the Nile River in and on the periphery of
the Zaranik Protected Area in North Sinai, Egypt. Conversely, the best
available information indicates that the Egyptian tortoise is
extirpated from the North Coast of Egypt where habitat quality
decreases east of Libya, and formerly suitable habitat for the species
has become uninhabitable to the degree that no individuals could
survive in Egypt west of the Nile River.
Comment (5): Numerous commenters recommended that we issue a rule
under section 4(d) of the Act to provide an exception for the
commercial trade of Egyptian tortoises within the United States for
private individuals because captively-bred tortoises could be used for
reintroductions into the wild and aid in the conservation of the
species.
Response: We recognize that in well-managed circumstances captive
breeding of wildlife can support conservation, for example by producing
animals that could be used for reintroductions. However, we are not
aware of any captive-breeding programs for the Egyptian tortoise in the
United States for this purpose, and thus we are also not aware of
captive-breeding programs practicing conservation breeding in a manner
that would produce animals suitable for reintroduction. For threatened
wildlife, such as the Egyptian tortoise, we may issue permits for
scientific purposes, to enhance the propagation or survival of the
species, for incidental take in connection with otherwise lawful
activities, for economic hardship, for zoological exhibition, for
education purposes, and for special purposes consistent with the
purposes of the Act.
We may also register persons subject to the jurisdiction of the
United States through a captive-bred wildlife (CBW) program if certain
established requirements are met under the CBW regulations (see 50 CFR
17.21(g); see also Available Conservation Measures, below). In
addition, the 4(d) rule includes an exception for interstate commerce
from public institutions to other public institutions, specifically
museums, zoological parks, and scientific institutions, meeting the
definition of ``public'' at 50 CFR 10.12. We found that the demand for
Egyptian tortoises held at or captive-bred by these types of
institutions and sold or otherwise transferred only to other qualifying
institutions in the United States is likely not substantial nor is it
likely to pose a significant threat to the wild population in the
species' range countries. Only specimens that have been legally
imported and their offspring can qualify for this exception; possession
of specimens traded contrary to CITES and their offspring is prohibited
(16 U.S.C. 1538(c)(1); 50 CFR 23.13).
Comment (6): Numerous commenters stated that tortoises bred in
captivity by private individuals in the United States provide a source
of genetic diversity for future reintroduction efforts and they produce
more captively-bred tortoises than just the Association of Zoos and
Aquarium facilities. Therefore, providing an exception for interstate
commerce for private individuals will provide a crucial source of
genetic diversity for future captive breeding and reintroduction
efforts.
Response: The intent of the Act is to recover wild populations in
their natural habitat whenever possible. Controlled propagation can
support the recovery of some listed species and can be used to reverse
declines and return listed species to suitable habitat in the wild.
However, controlled propagation is not a substitute for addressing the
primary threats to the species. Egyptian tortoises captive-bred in the
United States by private individuals are not addressing primary threats
to the species nor are the tortoises captive-bred for reintroduction
purposes. Additionally, introducing captive-bred individuals increases
the risk of releasing pathogens into wild populations. Therefore,
captive breeding by private individuals in the United States could not
be used to increase the wild population of the species in its range
countries. However, well-managed captive-breeding programs by
registered public zoos practicing conservation breeding in a manner
that would produce animals suitable for reintroduction could be used to
reintroduce species into the wild if that became warranted and
justified.
Comment (7): Some commenters stated that if the Egyptian tortoise
is harder to obtain in the United States because of prohibitions on
interstate commerce, prices will increase, which in turn will increase
illegal imports of the species into the United States.
Response: Commercial trade of the Egyptian tortoise is already
largely prohibited as a result of species' inclusion in Appendix I of
CITES in 1995. CITES Appendix-I species are considered threatened with
extinction, and international trade is permitted only under exceptional
circumstances, which generally precludes commercial trade. Very few
live tortoises or parts have been imported into the United States since
then (CITES 2022, unpaginated). No evidence exists that listing the
Egyptian tortoise as a threatened species will lead to an increase in
illegal imports to the United States. Listing under the Act can also
help ensure that the United States and its citizens do not contribute
to the
[[Page 19006]]
further decline of the Egyptian tortoise through resulting Federal
protections and prohibitions on certain activities such as import,
export, take, interstate commerce, and foreign commerce (see also
Available Conservation Measures, below). For instance, adding a
violation under the Act on top of a CITES violation could serve as an
additional disincentive for any illegal trade in the species.
Therefore, the CITES regulations in place and the additional
protections provided by this final rule minimize the risk of illegal
imports of wild Egyptian tortoises coming into the United States.
Comment (8): One commenter stated that the Service erred in its
significant-portion-of-its-range analysis and advocated that we
undertake a new analysis to evaluate whether the populations of the
species are endangered in North Coast, Egypt; North Sinai, Egypt; and
Israel. The commenter implied that because the populations are small in
each of these three areas, the analysis should have led to a
determination that the species is endangered in a significant portion
of its range.
Response: In this final rule, we expand on the analysis we included
in the November 9, 2021, proposed rule (see Status Throughout a
Significant Portion of Its Range, below) for the three populations the
commenter identifies, which we summarize in this response.
The Egyptian tortoise is extirpated from the North Coast of Egypt
because of a combination of historical habitat loss and collection for
the pet trade; thus, no population occurs in this area. Formerly
suitable habitat for the species has become uninhabitable to the degree
that no individuals could survive in Egypt west of the Nile River. As
outlined in our Final Policy on Interpretation of the Phrase
``Significant Portion of Its Range'' in the Endangered Species Act's
Definitions of ``Endangered Species'' and ``Threatened Species'' (79 FR
37578; July 1, 2014), the term ``range'' means the general geographical
area occupied by the species at the time we make a status determination
under section 4 of the Act (see 79 FR 37578, July 1, 2014, pp. 37583-
37585). In other words, we interpret ``range'' in these definitions to
be current range, i.e., range at the time of our analysis. Several
courts have upheld this interpretation (Humane Society v. Zinke, 865
F.3d 585 (D.C. Cir. 2017); Center for Biological Diversity v. Zinke,
900 F.3d 1053, 1066-67 (9th Cir. 2018); Desert Survivors v. Dep't of
the Interior, F. Supp. 3d 1131 (N.D. Cal. 2018)). Therefore, under our
significant portion of its range policy, the North Coast of Egypt does
not merit evaluation as a significant portion of the species' range
because the best available science indicates that the species has been
extirpated from the North Coast of Egypt.
The two other Egyptian tortoise populations (in North Sinai, Egypt,
and in Israel) discussed by the commenter are extant and are much
smaller than the population in Libya; however, the smaller sizes of
these two populations do not necessarily equate to the species being in
danger of extinction in these portions of its range. The current
condition of the populations of the Egyptian tortoise in North Sinai,
Egypt and in Israel do not have imminent threats that place the species
in danger of extinction. These populations partially occur within
protected areas, are protected by those countries' laws, and are not
subject to collection pressure. Even considering the smaller population
sizes in North Sinai, Egypt, and in Israel, we considered whether
either of these two populations is in danger of extinction and found
that they are not, and would not have a different status than the
rangewide status of the species. Because we reached a negative answer
with respect to the status question for each population, we do not need
to evaluate the significance question for that portion of the species'
range.
Supporting Documents
The SSA report for the Egyptian tortoise represents a compilation
of the best scientific and commercial data available concerning the
status of the species, including the impacts of past, present, and
future factors (both negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought peer review of the SSA report.
We sent the SSA report to five independent peer reviewers who have
expertise in the biology, habitat, and threats to the species, and we
received three responses. As described above under Peer Reviewer
Comments in Summary of Comments and Recommendations, we reviewed these
responses for substantive issues and new information regarding the
information contained in the SSA report, to ensure that our
determination is based on scientifically sound data, assumptions, and
analyses. The peer reviewers generally concurred with our methods and
conclusions, and provided additional information, clarifications, and
suggestions to improve the final SSA report. We incorporated the peer
reviewer comments into the final SSA report as appropriate.
I. Final Listing Determination
Background
A thorough review of the taxonomy, life history, distribution and
population status, and ecology of the Egyptian tortoise is presented in
the SSA report and the proposed rule (Service 2022; available at
https://www.regulations.gov under Docket No. FWS-HQ-ES-2020-0114). We
provide a very brief summary below.
The most distinguishing characteristic of the Egyptian tortoise is
its remarkably small size (Highfield and Martin 2014, p. 1). The
Egyptian tortoise is the smallest and least-known tortoise species
inhabiting the Mediterranean basin (Buskirk 1985, pp. 35, 37), and the
second smallest species of tortoise in the world (Woodland Park Zoo
2014, p. 1). Egyptian tortoises are herbivores with low reproductive
potential. Males reach maturity at 5 years old, and females take at
least 8 years because of physical limitations of laying eggs (Baha El
Din 2020, pers. comm.; Attum et al. 2011, p. 10). One generation in the
wild is estimated to be about 20 years (Per[auml]l[auml] 2006, p. 60;
Macale et al. 2009, p. 143), although the average age can be much
shorter (Egyptian Environmental Affairs Agency 2009, p. 222).
The Egyptian tortoise is restricted to a narrow coastal zone in
North Africa and the western and central Negev Desert in Israel, in the
southeast Mediterranean, and has the most restricted range of all
tortoises in the Mediterranean Basin (Baha El Din et al. 2003, entire).
They need areas of sandy dunes to more solidified sands with plant
cover from bushes and small shrubs and annual plants to eat. The
species is active during the cooler part of the year and aestivates or
experiences prolonged dormancy during the summer when temperatures are
high and rainfall and food availability are low.
Historically, the Egyptian tortoise occurred on both sides of the
Nile River, distributed along the southeast Mediterranean coast in
Libya and Egypt, and in the western and central Negev Desert in Israel.
The species currently exists in the three regions in Libya, in five
small subpopulations in North Sinai, Egypt, and in the western and
central Negev Desert in Israel. The Egyptian tortoise has been
extirpated from the North Coast of Egypt and no longer occupies the
historical part of its
[[Page 19007]]
range from the Libyan border east to the Nile River.
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TR30MR23.000
BILLING CODE 4333-15-C
Figure 1. Distribution of the Egyptian tortoise, from Libya through
Israel
The shaded area along the southeastern Mediterranean coast, on the
coastline of Libya and Egypt, and into the Western and Central Negev
Desert in Israel on the map above reflects the approximate historical
range of the species. The Egyptian tortoise has been extirpated from
the North Coast of Egypt; therefore, the species no longer occupies the
historical part of the range in Egypt from the Libyan border east to
the Nile Delta. The dots are recorded locations from the literature
including both historical and current occurrence of the species.
(Rhodin 2020, pers. comm; Rhodin et al. 2017).
Over the last three generations (or about 60 years), the Egyptian
tortoise population has been reduced by approximately 90 percent
throughout its range, including the extirpation of the species in North
Coast, Egypt, which accounted for about 30 percent of the species'
historical population (Per[auml]l[auml] 2005, p. 894; Per[auml]l[auml]
2006, p. 61; Rhodin 2020, pers. comm; Rhodin et al. 2017, p. 154; Baha
El Din 1994, p. 6; Baha El Din et al. 2003, p. 651). The best available
information indicates that the current population of Egyptian tortoise
is approximately 10,000 individuals (see table, below).
Table of Estimates of the Historical and Current Populations for the Egyptian Tortoise
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Historical individuals (estimate of Estimated
Population name individuals present in the 1950s) population in 2005 Best estimate in
\1\ and 2006 \2\ 2022 \3\
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Libya (Cyrenaica)................ 22,600............................. 5,000.............. Libya: At least
Libya (Sirte).................... Unknown............................ Unknown............ 7,500 adults, not
including non-
breeding adults.
Libya (Tripolitania)............. 2,500.............................. 2,500.
Egypt (North Coast).............. 30,500............................. 0 (was previously 0.
reintroduced in El
Omayed Protected
Area).
Egypt (North Sinai) and Israel... 45,000............................. 3,150, which are Israel:
mostly in Israel. Conservative
estimate for total
population of
2,000-2,500.[supca
ret]
[[Page 19008]]
The population in North Sinai: 5 very
North Sinai is small
about 100. subpopulations in
one small
population contain
a total of 200-250
individuals.
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Total Individuals............ 100,600............................ 10,650............. [ap] 10,000.\4\
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\1\ (Per[auml]l[auml] 2005; Per[auml]l[auml] 2006).
\2\ (Per[auml]l[auml] 2005; Per[auml]l[auml] 2006; Schneider and Schneider 2008).
\3\ (Baha El Din 2020, pers. comm.; Attum 2020, pers. comm.; Israel Nature and Parks Authority (INPA) 2021).
\4\ The current total population may be similar to the population estimated in 2005 and 2006. The current
population in Libya is uncertain due to a lack of any recent field surveys.
[supcaret] The current population estimates (2021) in Israel have decreased since last assessed in 2006.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
The regulations that are in effect and therefore applicable to this
final rule are 50 CFR part 424, as amended by (a) revisions that we
issued jointly with the National Marine Fisheries Service in 2019
regarding both the listing, delisting, and reclassification of
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019); and
(b) revisions that we issued in 2019 eliminating for species listed as
threatened species are September 26, 2019, the Service's general
protective regulations that had automatically applied to threatened
species the prohibitions that section 9 of the Act applies to
endangered species (84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may either encompass--together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, and then analyze the cumulative effect of all
of the threats on the species as a whole. We also consider the
cumulative effect of the threats in light of those actions and
conditions that will have positive effects on the species, such as any
existing regulatory mechanisms or conservation efforts. The Secretary
determines whether the species meets the definition of an ``endangered
species'' or a ``threatened species'' only after conducting this
cumulative analysis and describing the expected effect on the species
now and in the foreseeable future.
Foreseeable Future
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Services can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
[[Page 19009]]
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
We considered the threats of habitat loss and degradation and
collection of the species for the pet trade, along with demographic
factors of Egyptian tortoises, and determined that the foreseeable
future was approximately 60 years. This timeline for the foreseeable
future is based on several factors. The Egyptian tortoise matures
slowly, and in the best of conditions has a low reproductive rate.
Thus, the species depends on high survival rates and long reproductive
lifespans of adults to increase population size (Wilbur and Morin 1988,
in D[iacute]az-Paniagua et al. 2001, p. 707). Because of the long
generation length (up to 20 years) and slow reproductive rate,
demographic responses of the species to the threats that are already
ongoing will manifest increasingly over a significant period of time.
Additionally, existing studies already document the species' responses
to threats over the past three generations or approximately 60 years
(Per[auml]l[auml] 2005, p. 894; Per[auml]l[auml] 2006, p. 61; Rhodin
2020, pers. comm; Rhodin et al. 2017, p. 154; Baha El Din 1994, p. 6;
Baha El Din et al. 2003, p. 651). We considered and incorporated the
information underlying IUCN's Red List assessment of the species that
also takes into account the decline in abundance and range of the
species, levels of exploitation, and direct observations by experts
(IUCN 2012, unpaginated; Per[auml]l[auml] 2005, p. 897;
Per[auml]l[auml] 2006, p. 65). We found the IUCN's information to be
part of the best scientific and commercial information available for
this species, and that predictions based on IUCN's information for this
species can be reliable over approximately the next 60 years. We also
note that IUCN reasonably projects that the species faces a greater-
than-80-percent chance of extinction in the wild within the next 60
years.
Therefore, based on the best scientific and commercial data
available, we conclude that over a period of 60 years we can make
reliable predictions that both the future threats to the species and
the species' response to those threats are likely. ``Reliable'' does
not mean ``certain''; it means sufficient to provide a reasonable
degree of confidence in the prediction. Thus, a prediction is reliable
if it is reasonable to depend on it when making decisions. Under this
approach, because habitat loss and collection for the pet trade are the
primary threats to the Egyptian tortoise currently and into the future,
and the species has a slow reproductive rate in the best of conditions
that depends on high survival rates and long reproductive lifespans of
adults to increase population size, we evaluate how far into the future
we can make reliable prediction about habitat loss and collection of
the species and the responses of Egyptian tortoises to these threats.
In addition to the slow, innate reproductive capacity of Egyptian
tortoises, we considered and incorporated the information underlying
IUCN's Red List assessment of the species that projects that the
species faces a greater-than-80-percent chance of extinction in the
wild within the next 60 years, taking into account the decline in
abundance and range of the species, levels of exploitation, and direct
observations by experts. We found the IUCN's information to be part of
the best scientific and commercial information available for this
species, and that predictions based on IUCN's information for this
species can be reliable over approximately the next 60 years.
Therefore, we identified 60 years, or 2080, as the foreseeable future
for the threats of habitat loss and collection because that is the
period over which we can make reliable predictions as to the future
condition of Egyptian tortoises.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data available
regarding the status of the species, including an assessment of the
potential threats to the species. The SSA report does not represent a
decision by the Service on whether the species should be listed as an
endangered or threatened species under the Act. However, it does
provide the scientific basis that informs our regulatory decisions,
which involve the further application of standards within the Act and
its implementing regulations and policies. The following is a summary
of the key results and conclusions from the SSA report; the full SSA
report can be found at Docket FWS-HQ-ES-2020-0114 on https://www.regulations.gov. As noted above, the proposed rule includes more
detail than this final rule, but that does not imply a change between
the proposed and final rules.
To assess Egyptian tortoise's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate change). In general, the more resilient and redundant a species
is and the more representation it has, the more likely it is to sustain
populations over time, even under changing environmental conditions.
Using these principles, we identified the species' ecological
requirements for survival and reproduction at the individual,
population, and species levels, and described the beneficial and risk
factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
Egyptian tortoises face similar threats to their viability
throughout their range, although the magnitude may vary among Libya,
Egypt, and Israel. The primary threats to the species are loss of
habitat and collection of the species for the pet trade (Service 2022,
pp. 30-39). Because Egyptian tortoises need areas of sandy dunes to
more solidified sands
[[Page 19010]]
with plant cover from bushes and small shrubs and annual plants to eat,
habitat destruction throughout the range of the species caused by human
activities is the major factor limiting suitable habitat necessary for
the species' survival. Habitat loss may also occur because of changing
environmental conditions from climate change. Protected areas, national
parks, and nature reserves offer some suitable habitat and protection
for the Egyptian tortoise. However, even the habitat in these areas is
degraded and is also used for pastoral livestock grazing, which
competes with Egyptian tortoise for vegetation (Attum et al. 2007b,
entire; Baha El Din et al. 2003, p. 653; Attum et al. 2013, p. 74).
Because of the land-use changes and habitat loss, the populations in
each country have no connectivity across international borders,
including the populations in North Sinai, Egypt, and in Israel that are
both on the east side of the Nile and are relatively close in
proximity.
Egyptian tortoises were heavily collected from Egypt through much
of the first half of the 20th century for sale as pets (Baha El Din
1994, p. 25). The mass collection of the species for the pet trade was
recognized as early as 1933 (Flower 1933, p. 746) and continued until
the late 1970s, by which time the species' population was extirpated
from large parts of the North Coast of Egypt. Currently, the only
populations in Egypt are very small and managed by locals in the
Zaranik Protected Area in North Sinai. Commercial collection of the
species is not currently a factor at this location. However, collection
for the pet trade is the biggest threat to the species in Libya, which
has the largest remaining population of the species. Collection of
Egyptian tortoises is minimal in Israel. Bedouins use shells from dead
tortoises and do not collect live tortoises, but some poaching by
agricultural workers does occur, which has been reduced through
increased outreach and enforcement by Israel Nature and Parks Authority
(INPA 2021, p. 4).
Egyptian tortoises are highly sensitive to thermal stress,
particularly increased temperature. Therefore, any marginal increase
caused by climatic change would be limiting to their survival in the
wild (Baha El Din 2020, pers. comm.). This impact has been observed
first-hand in captive populations near Cairo, Egypt (only 100
kilometers (62 miles) south of the natural range) (Baha El Din 2020,
pers. comm.). Tortoises aestivate under shrubs in the summer when the
temperature is highest, food availability is least, and the warming is
projected to be the most intense. However, tortoises are more active
during the winter and spring when the mean temperatures are
approximately 15 to 25 degrees Celsius ([deg]C) (59 to 77 degrees
Fahrenheit ([deg]F)). Temperature is projected to rise moderately
during the winter and may not reach levels that are directly
detrimental to the tortoise.
The Egyptian tortoise is afforded some protection based on existing
regulations in each of the range countries. These regulations have had
varying success protecting the species' habitat from destruction and
the species from collection for the pet trade. As discussed in further
detail below, the inclusion of the Egyptian tortoise in Appendix I of
CITES in 1995 was an important action for the conservation of the
species, considering the decreasing population numbers and the amount
of trade occurring up through the 1980s. However, despite its status in
Appendix I of CITES, the best available information indicates that
Egyptian tortoises are illegally traded internationally. The collection
pressure from this illegal trade continues to harm the species, though
at a reduced level that was previously attributed to the legal
commercial trade while the species was in Appendix II of CITES (CITES
Trade Database 2020; Theile et al. 2004, p. iii; Stengel et al. 2011,
pp. 10-11, 19).
Current Conditions
The Egyptian tortoise's viability is influenced by its resiliency,
adaptive capacity (representation), and redundancy. Resiliency for the
Egyptian tortoise is measured by population size, distribution, and
health throughout its range. Population size, quality of habitat where
the species occurs (taking into account anthropogenic effects), whether
a population is in a protected area, and the collection pressure of a
population all influence the resiliency of the Egyptian tortoise.
Overall, the Egyptian tortoise has remained relatively stable since
2005 (see table above). The species occurs in fragmented populations
with moderate resiliency because there are multiple populations, some
of which are partially in protected areas, and ongoing habitat
degradation and collection pressure. The Egyptian tortoise resides in
representative habitats on both sides of the Nile River, which provides
the species with its resource needs and some ecological diversity in
habitat west and east of the river. The existence of multiple,
resilient populations reduces the likelihood that any single
catastrophic event could affect one or more of the populations
simultaneously. We have not identified any catastrophic events that
would affect the Egyptian tortoise across its entire range.
Future Condition
We projected the resiliency, representation, and redundancy of the
Egyptian tortoise under two plausible future scenarios: (1) a status
quo scenario in which human-caused impacts and tortoise population
responses continue as the current trends indicate; and (2) a reduced-
collection scenario in which the collection of Egyptian tortoises for
the pet trade from Libya decreases as a result of Libyan authorities
enacting regulations that improve enforcement and reduce the collection
of the species. However, reducing collection in Libya is uncertain
given the ongoing collection of Egyptian tortoises and geopolitical
instability in the country. The two scenarios do not include variance
or change in the rate of habitat loss caused by human activities such
as development, agriculture and grazing, and military activities. The
habitat is highly degraded and continues to decline throughout the
range of the species. Additionally, we recognize the effects of climate
change in the future but do not differentiate between representative
concentration pathway (RCP) 4.5 and RCP 8.5 in the future scenarios
because we could not distinguish between RCPs 4.5 and 8.5 at which
temperature or timeframe the Egyptian tortoise would show signs of
stress. Habitat loss and collection for the pet trade will have a more
immediate and pronounced effect on the species and its habitat
suitability. Therefore, we focused the future condition on habitat loss
and collection pressure because of human activities.
Scenario 1
We project rangewide habitat degradation into the future under
Scenario 1, and collection pressure continuing on the same trajectory
as current conditions. Human population and development pressure are
higher in North Coast, Egypt, and in Israel than in Libya and North
Sinai, Egypt. Thus, we would not expect as much habitat loss from
development in Libya and North Sinai. However, because collection
pressure is higher in Libya, we anticipate that the population in Libya
will be substantially reduced. Populations in Libya (one population
across three regions), North Sinai, Egypt (one small population made up
of five very small subpopulations), and Israel (one population in the
Negev Desert) would decrease and become more fragmented, and we
conclude that the resiliency of the species will decrease from moderate
to low-to-moderate within the foreseeable future because of ongoing
habitat degradation and
[[Page 19011]]
collection pressure. A decreasing population of Egyptian tortoise
residing in increasingly degraded habitat reduces the species' ability
to sustain populations in the event of stochastic variation. We project
that the population in Libya would be substantially reduced because of
ongoing collection, but would still occur within the three regions in
Libya at much smaller population sizes. The tortoise populations in
North Sinai, Egypt, and the Negev Desert in Israel would remain, but
would decrease. Therefore, the species will continue to occupy the same
areas as it currently occupies. The Egyptian tortoise would occur in
each country, west and east of the Nile River, and maintain some
ecological diversity between the populations. Thus, representation
would likely be similar to current conditions. However, representative
habitat types in which the species occurs would continue to be much
fewer than they were historically, and would continue to decline. We
have not identified any catastrophic events that would affect Egyptian
tortoises across its entire range. Therefore, the species would have
redundancy to withstand catastrophic events.
Scenario 2
Similar to Scenario 1, we project that rangewide habitat
degradation will continue in the future, but under Scenario 2, the
collection pressure in Libya will be reduced. Libyan authorities and
local academics had been seeking to end collection and exportation of
Egyptian tortoise from Libya. However, we acknowledge that with the
ongoing collection of the species and geopolitical instability in
Libya, implementing conservation measures to reduce collection for the
pet trade is uncertain. Nonetheless, if collection is reduced, the
population in Libya would not decline at the current trajectory, and at
a minimum, the Libyan population of Egyptian tortoises would decline at
a slower rate compared to current conditions. However, this population
would have low-to-moderate resiliency within the foreseeable future
because the habitat will continue to be degraded, the population is not
in a protected area, and even if conservation measures are implemented,
we conclude some collection for the pet trade will continue. The
populations in North Sinai, Egypt, and the Negev Desert in Israel would
experience a decrease in resiliency in the foreseeable future as
described under Scenario 1.
Because the populations in Libya, in North Sinai, Egypt, and in
Israel would remain, the Egyptian tortoise would occur in each country,
west and east of the Nile River, and represent the same ecological
diversity and habitats between the populations as current conditions,
although at decreasing levels in each population. Similar to Scenario
1, the species would occupy the same areas as it currently occupies,
which are fewer than the species historically occupied, and suitable
habitat will continue to decline. Because we have not identified any
catastrophic event that would affect the species throughout its range,
the species will have redundancy to withstand catastrophic events.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative-effects analysis.
Table of Abundance, Habitat Quality, Presence of Protected Areas, and
Collection Pressure of Egyptian Tortoises Comparing the Current
Condition to Future Conditions Under Scenarios 1 and 2
[GRAPHIC] [TIFF OMITTED] TR30MR23.001
[[Page 19012]]
Conservation Efforts and Regulatory Mechanisms
The Egyptian tortoise is afforded some protection based on existing
regulations in each of the range countries. However, these regulations
have had varying success protecting the species' habitat from
destruction and the species from collection for the pet trade.
Protected areas, national parks, and nature reserves offer some
suitable habitat and protection for the Egyptian tortoise, although
habitat in protected areas is degraded and is subject to livestock
grazing. Additionally, lax enforcement in these areas may provide
opportunities for tortoise poaching and smuggling.
In Egypt it is illegal to collect, possess, or sell protected
species or wild animals, dead or alive (Law No. 4 of 1994, Ministry of
State for Environmental Affairs 2022, unpaginated). Although
enforcement is sporadic, it is increasing, and implementation and
screening at airports for species listed under CITES has resulted in
confiscation of some Egyptian tortoises intended for the illegal pet
trade (Baha El Din et al. 2003, p. 653). Zaranik Protected Area in
North Sinai, Egypt, contains Egyptian tortoises, and local Bedouins
manage the population and protect the species from habitat degradation
and collection. A program operated by Bedouin women contributes to
raising awareness for the species through the production of handicrafts
with tortoise motifs (Baha El Din et al. 2003, p. 654; Attum et al.
2007b, p. 399).
In Libya, the Egyptian tortoise is covered by a resolution from the
Minister of Agriculture in favor of their protection and to prevent
trading and export (Khalifa in litt., to IUCN Species Survival
Commission (SSC) Trade Specialist Group 1993, in CITES uplisting
proposal 1995, p. 25). However, we have no information to indicate the
resolution is enforceable. Additionally, the lists of species protected
in Libya do not include the Egyptian tortoise (Baha El Din 2002, p. 2;
McGrath 2011, unpaginated). Accordingly, domestic regulatory mechanisms
in Libya are either nonexistent or potentially lacking enforcement
authority.
In Israel, the Wildlife Protection Law (enacted in 1955 and amended
in 1999) has proved to be an effective instrument in the protection of
wildlife. All species of wild animals anywhere in Israel are completely
protected, except for designated pest species and declared game species
(Israel Ministry of Foreign Affairs (IMFA) 1997, unpaginated; Wildlife
Protection Law 5715-1955). The nature reserve Holot Agur in Israel was
established in 2010, and covers approximately 176 square kilometers
(km\2\) (68 square miles (mi\2\)) of the Holot Agur sands area in the
western Negev Desert, which overlaps about one-fifth of the best known
and studied population of Egyptian tortoises in Israel (Buskirk 1993,
unpaginated).
Libya, Egypt, and Israel are all Parties to CITES, and the Egyptian
tortoise is a CITES-protected species. The Egyptian tortoise was
included in Appendix II of CITES in 1975, under the genus-level listing
of Testudo spp., and the species subsequently was transferred to
Appendix I on February 16, 1995. Species included in Appendix I receive
the highest level of protection under CITES (CITES Article II, 1. and
4.; CITES Article III; 50 CFR part 23). Including the species in
Appendix I of CITES was an important action for the conservation of the
species, considering the decreasing population numbers and the level of
trade occurring through the 1980s. However, despite the species' status
in Appendix I of CITES, the best available information indicates that
Egyptian tortoises are illegally traded internationally. The collection
pressure continues to harm the species, although at a reduced level
compared to the collection pressure while the species was in Appendix
II (CITES Trade Database 2020; Theile et al. 2004, p. iii; Stengel et
al. 2011, pp. 10-11, 19). International trade for Appendix-I species is
permitted only under exceptional circumstances, and trade primarily for
commercial purposes is prohibited, with limited exceptions for
qualifying specimens bred in captivity for commercial purposes by
CITES-registered facilities and pre-Convention specimens (CITES Article
II, 1. and 4.; CITES Article III; CITES Article VII, 2. and 4.; 50 CFR
part 23). There are currently no CITES-registered breeding facilities
for the species.
Determination of Egyptian Tortoise's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of endangered species
or threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we found that habitat loss and degradation continue throughout
the species' range because of a suite of ongoing human activities, and
are the major factor limiting the availability of suitable habitat
(Factor A). Collection of the species is ongoing and a significant
threat in Libya, where the largest remaining population of Egyptian
tortoise occurs (Factor B). Collection for the pet trade is not known
to be a major factor in North Sinai, Egypt, or in Israel, although
minimal poaching likely occurs in Israel. However, the potential exists
that commercial collectors may target Egyptian tortoises in Zaranik
Protected Area in the future. The Egyptian tortoise is afforded some
protection in Egypt and Israel based on existing regulations, which
have had minimal success protecting the species and its habitat. No
enforceable conservation measures for the species are in place in
Libya. The species' inclusion in Appendix I of CITES in 1995
substantially reduced the international trade in wild specimens that
was occurring primarily for commercial purposes, although some illegal
commercial trade continues despite the species' status in Appendix I.
The total Egyptian tortoise population is estimated to be nominally
fewer in 2022 than it was in 2005 2006. Despite losses in numbers and
habitat, approximately 10,000 Egyptian tortoises occur within 7,929-
15,857 km\2\ (3,061-6,122 mi\2\) of suitable habitat across the
species' range in the Mediterranean coastal area of Libya; North Sinai,
Egypt; and the Negev Desert in Israel (Per[auml]l[auml] 2005, p. 894;
Per[auml]l[auml] 2006, p. 61; Rhodin 2020, pers. comm.).
Based on the best available information, the population over the
last 15 years may be steady but appears to have slightly declined. This
appearance of a steady population over the past 15 years could be a
result of a combination of factors. It could be uncertainty in the
data. It could reflect the possibility that
[[Page 19013]]
more tortoises exist in Libya than previously understood. It could also
be because collection for the pet trade briefly slowed at the start of
the uprising against the Libyan Government in 2011. In any case, the
species occurs in multiple populations, with a total population that
has drastically declined from historical levels. The species retains
representation across most of its historical range even though it has
been extirpated from North Coast of Egypt. The two populations east of
the Nile River in North Sinai, Egypt, and the Negev Desert, Israel, are
partially in protected areas with varying levels of enforcement. We
also considered whether the future species' response to past, currently
occurring, or imminent future threats would significantly change the
species' current viability, and concluded it would not. Therefore,
after assessing the best available information, we conclude the
Egyptian tortoise has sufficient resiliency, redundancy, and
representation that with its current numbers and distribution it is not
in danger of extinction throughout all of its range.
We next considered whether the Egyptian tortoise is likely to
become in danger of extinction throughout all of its range within the
foreseeable future, which we determined for the species to be three
generations of the species (approximately 60 years). Based on projected
increases in the human population along the Mediterranean coast within
the range of the species, we expect both the species' population and
habitat to decline into the future because of ongoing habitat
degradation and loss, and collection for the pet trade. Additionally,
habitat degradation and loss are likely to be amplified by synergistic
effects associated with the consequences of climate change. Projections
for the Mediterranean region reveal warming in all seasons and reduced
precipitation throughout the year. Egyptian tortoises are highly
sensitive to thermal stress, particularly increased temperature.
Therefore, any marginal increase resulting from climatic change,
combined with the loss of habitat (i.e., shrubs needed for thermal
buffering), would limit the species' ability to survive in the wild.
We project that the multiple threats to the species and its habitat
will cause the size of the population and the amount of suitable
habitat for the species to decline, thereby decreasing the resilience
of the population into the future. Existing regulatory measures have
had minimal success conserving the species' habitat and but have
reduced the number of tortoises collected for the pet trade. Although
the species is not in danger of extinction throughout all of its range
now, the factors identified above continue to negatively affect the
Egyptian tortoise and its habitat such that it is likely to become in
danger of extinction within the foreseeable future throughout all of
its range. Based on the best available scientific studies and
information assessing land-use trends, collection pressure, adequacy of
law enforcement, temperature and rainfall projections because of
climate change, and predictions about how those threats may affect the
Egyptian tortoise, we conclude that the Egyptian tortoise will lack
sufficient resiliency, redundancy, and representation for its continued
existence to be secure within the foreseeable future. We, therefore,
determine that the Egyptian tortoise is likely to be in danger of
extinction within the foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. 2020) (Everson), vacated the aspect of the Final
Policy on Interpretation of the Phrase ``Significant Portion of Its
Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (Final Policy; 79 FR 37578; July
1, 2014) that provided that the Service does not undertake an analysis
of significant portions of a species' range if the species warrants
listing as threatened throughout all of its range. Therefore, we
proceed to evaluating whether the species is endangered in a
significant portion of its range--that is, whether there is any portion
of the species' range for which both (1) the portion is significant;
and (2) the species is in danger of extinction in that portion.
Depending on the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the species' range.
Following the court's holding in Everson, we consider whether there
are any significant portions of the species' range where the species is
in danger of extinction now (i.e., endangered). In undertaking this
analysis for the Egyptian tortoise, we choose to address the status
question first--we consider information pertaining to the geographic
distribution of both the species and the threats that the species faces
to identify any portions of the range where the species is endangered.
We examined whether the threats are geographically concentrated in any
portion of the species' range at a biologically meaningful scale. We
considered the following threats: habitat degradation and loss,
collection for the pet trade, and small population size, including
cumulative effects. The suite of activities, such as urban development,
agriculture, grazing, and military exercises, that has caused, and
continues to cause, the loss and degradation of habitat occurs across
all populations throughout the species' range. The available data do
not suggest that these threats to the habitat are concentrated in any
area at a biologically meaningful scale. Therefore, the threats causing
habitat loss do not themselves result in the species being in danger of
extinction in any portion of its range.
Collection for the pet trade is the most significant threat to the
species in Libya and is currently concentrated in this part of the
species' range. Collection has historically been a significant threat
across Egypt, particularly in the North Coast, which combined with
habitat loss led to the extirpation of the species from this part of
its range. Collection for the pet trade is not known to be a factor in
North Sinai, Egypt, or in Israel, although minimal poaching occurs in
Israel and there is concern that commercial collectors will target
Egyptian tortoises in Zaranik Protected Area in the future. Libya
contains the majority of the population of Egyptian tortoises. While
the threat of collection for the pet trade is concentrated in Libya,
which is the only population on the west side of the Nile River, the
effect of collection does not place the species in danger of extinction
in this portion of its range, even in combination with other threats to
the species such as habitat loss. In other words, the concentrated
collection pressure in Libya is not severe enough to make the species
currently endangered in this portion of its range given its size and
distribution throughout its historical range in this portion.
We also considered whether the populations of Egyptian tortoises in
North Sinai, Egypt, and in the Negev Desert in Israel may each be more
vulnerable because of their smaller population sizes. These two
populations are smaller than historical estimates and are the only
populations east of the Nile
[[Page 19014]]
River, including the only remaining population in Egypt that
historically occurred along a much larger area of coastline in Egypt.
However, the smaller size of the populations themselves do not equate
to the populations being in danger of extinction.
Each population may be more vulnerable to a loss of genetic
diversity and catastrophic events because of their small sizes;
however, we have no information that the species is affected by
inbreeding depression, and we are not aware of catastrophic events that
would make the species currently in danger of extinction in these
portions of its range. While the populations in North Sinai, Egypt, and
in Israel are smaller, particularly the population in North Sinai, the
populations do not currently face collection pressure. Additionally,
because of awareness and management of the species in these two
populations, and protections provided to the species and its habitat
through existing laws and designation of protected areas that overlap
parts of where these populations occur, the populations in North Sinai,
Egypt, and in Israel are not currently in danger of extinction in these
portions of the species' range.
We determined there is no portion of the species' range where it
may be in danger of extinction, and because we reached a negative
answer with respect to the ``status'' question, we do not need to
evaluate the ``significance'' question for that portion of the species'
range. Our approach to this analysis is consistent with the courts'
holdings in Desert Survivors v. Dep't of the Interior, F. Supp. 3d 1131
(N.D. Cal. 2018), and Center for Biological Diversity v. Jewell, 248 F.
Supp. 3d, 946, 959 (D. Ariz. 2017).
Determination of Status
Our review of the best available scientific and commercial
information indicates that the Egyptian tortoise meets the Act's
definition of a threatened species. Therefore, we list the Egyptian
tortoise as a threatened species in accordance with sections 3(20) and
4(a)(1) of the Act.
Available Conservation Measures
The purposes of the Act are to provide a means whereby the
ecosystems upon which endangered species and threatened species depend
may be conserved, to provide a program for the conservation of such
endangered species and threatened species, and to take such steps as
may be appropriate to achieve the purposes of the treaties and
conventions set forth in the Act. There are a number of steps available
to advance the conservation of species listed as endangered or
threatened species under the Act. As explained further below, these
conservation measures include: (1) recognition, (2) recovery actions,
(3) requirements for Federal protection, (4) financial assistance for
conservation programs, and (5) prohibitions against certain practices.
First, recognition through listing results in public awareness, as
well as in conservation actions by Federal, State, Tribal, and local
agencies; foreign governments; private organizations; and individuals.
Second, the Act encourages cooperation with the States and other
countries and calls for recovery actions to be carried out for listed
species.
Third, our regulations at 50 CFR part 402 implement the interagency
cooperation provisions found under section 7 of the Act. Under section
7(a)(1) of the Act, Federal agencies are to use, in consultation with
and with the assistance of the Service, their authorities in
furtherance of the purposes of the Act. Section 7(a)(2) of the Act, as
amended, requires Federal agencies to ensure, in consultation with the
Service, that any action authorized, funded, or carried out by such
agency is not likely to jeopardize the continued existence of a listed
species or result in destruction or adverse modification of its
critical habitat.
A Federal ``action'' that is subject to the consultation provisions
of section 7(a)(2) of the Act is defined in our implementing
regulations at 50 CFR 402.02 as all activities or programs of any kind
authorized, funded, or carried out, in whole or in part, by Federal
agencies in the United States or upon the high seas. With respect to
this species, there are no actions known to require consultation under
section 7(a)(2) of the Act. Given the regulatory definition of
``action,'' which clarifies that it applies to activities or program
``in the United States or upon the high seas,'' the Egyptian tortoise
is unlikely to be the subject of section 7 consultations, because the
entire life cycle of the species occurs in terrestrial areas outside of
the United States unlikely to be affected by U.S. Federal actions.
Additionally, no critical habitat will be designated for this species
because, under 50 CFR 424.12(g), we will not designate critical habitat
within foreign countries or in other areas outside of the jurisdiction
of the United States.
Fourth, section 8(a) of the Act (16 U.S.C. 1537(a)) authorizes the
provision of limited financial assistance for the development and
management of programs that the Secretary of the Interior determines to
be necessary or useful for the conservation of endangered or threatened
species in foreign countries. Sections 8(b) and 8(c) of the Act (16
U.S.C. 1537(b) and (c)) authorize the Secretary to encourage
conservation programs for foreign listed species, and to provide
assistance for such programs, in the form of personnel and the training
of personnel.
Fifth, the Act puts in place prohibitions against particular
actions. When a species is listed as endangered, certain actions are
prohibited under section 9 of the Act and are implemented through our
regulations in 50 CFR 17.21. For endangered wildlife, these include
prohibitions under section 9(a)(1) of the Act on import; export;
delivery, receipt, carriage, transport, or shipment in interstate or
foreign commerce, by any means whatsoever and in the course of
commercial activity; and sale or offer for sale in interstate or
foreign commerce of any endangered species. It is also illegal to take
within the United States or on the high seas; or to possess, sell,
deliver, carry, transport, or ship, by any means whatsoever, any
endangered species that have been taken in violation of the Act. It is
unlawful to attempt to commit, to solicit another to commit or to cause
to be committed, any of these acts. Exceptions to the prohibitions for
endangered species may be granted in accordance with section 10 of the
Act and our regulations at 50 CFR 17.22.
The Act does not specify particular prohibitions and exceptions to
those prohibitions for threatened species. Instead, under section 4(d)
of the Act, the Secretary, as well as the Secretary of Commerce
depending on the species, are given the discretion to issue such
regulations as deemed necessary and advisable to provide for the
conservation of species listed as threatened species. The Secretary
also has the discretion to prohibit by regulation with respect to any
threatened species any act prohibited under section 9(a)(1) of the Act.
Exercising this discretion, the Service has developed general
prohibitions in the Act's regulations (50 CFR 17.31) and exceptions to
those prohibitions (50 CFR 17.32) that apply to most threatened
wildlife species. Under 50 CFR 17.32, permits may be issued to allow
persons to engage in otherwise prohibited acts for certain purposes.
Under section 4(d) of the Act, the Secretary, who has delegated
this authority to the Service, may also develop specific prohibitions
and exceptions tailored to the particular conservation needs of a
threatened species. In such cases, the Service issues
[[Page 19015]]
a 4(d) rule that may include some or all of the prohibitions and
authorizations set out in 50 CFR 17.31 and 17.32, but which also may be
more or less restrictive than the general provisions at 50 CFR 17.31
and 17.32. For Egyptian tortoise, the Service has determined that a
species-specific 4(d) rule is necessary and advisable.
As explained below, the 4(d) rule for the Egyptian tortoise, in
part, makes it illegal for any person subject to the jurisdiction of
the United States to import or export; deliver, receive, carry,
transport, or ship in interstate or foreign commerce, by any means
whatsoever and in the course of commercial activity; or sell or offer
for sale in interstate or foreign commerce any Egyptian tortoise. It is
also illegal to take (which includes harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or to attempt any of these) any Egyptian
tortoise within the United States or on the high seas; or possess,
sell, deliver, carry, transport, or ship, by any means whatsoever any
Egyptian tortoise that has been taken in violation of the Act. It is
unlawful to attempt to commit, to solicit another to commit or to cause
to be committed, any of these acts. Certain exceptions apply to agents
of the Service and State conservation agencies. An exception is also
provided in the 4(d) rule for interstate commerce from public
institutions to other public institutions, specifically museums,
zoological parks, and scientific institutions that meet the definition
of ``public'' at 50 CFR 10.12.
We may issue permits to carry out otherwise prohibited activities
involving endangered and threatened wildlife species under certain
circumstances. Regulations governing permits for threatened species are
codified at 50 CFR 17.32, and general Service permitting regulations
are codified at 50 CFR part 13. With regard to threatened wildlife, a
permit may be issued for scientific purposes, to enhance the
propagation or survival of the species, for incidental take in
connection with otherwise lawful activities, for economic hardship, for
zoological exhibition, for educational purposes, and for special
purposes consistent with the purposes of the Act. The Service may also
register persons subject to the jurisdiction of the United States
through its captive-bred wildlife (CBW) program if certain established
requirements are met under the CBW regulations (see 50 CFR 17.21(g)).
Through a CBW registration, the Service may allow a registrant to
conduct certain otherwise prohibited activities under certain
circumstances to enhance the propagation or survival of the affected
species, including take; export or re-import; delivery, receipt,
carriage, transport, or shipment in interstate or foreign commerce, in
the course of a commercial activity; or sale or offer for sale in
interstate or foreign commerce. A CBW registration may authorize
interstate purchase and sale only between entities that both hold a
registration for the taxon concerned. The CBW program is available for
species having a natural geographic distribution not including any part
of the United States and other species that the Service Director has
determined to be eligible by regulation. The individual specimens must
have been born in captivity in the United States. There are also
certain statutory exemptions from the prohibitions, which are found in
sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a listing on
proposed and ongoing activities within the range of the species. The
discussion below regarding protective regulations under section 4(d) of
the Act complies with our policy.
II. Final Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. Additionally, the second sentence
of section 4(d) of the Act states that the Secretary may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1), in the case of fish or wildlife, or section
9(a)(2), in the case of plants. Thus, the combination of the two
sentences of section 4(d) provides the Secretary with wide discretion
to select and promulgate appropriate regulations tailored to the
specific conservation needs of the threatened species. The second
sentence grants particularly broad discretion to the Service when
adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to [her] with regard to the permitted activities for those species.
[She] may, for example, permit taking, but not importation of such
species, or [s]he may choose to forbid both taking and importation but
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
Exercising this authority under section 4(d), as explained below,
we developed and are adopting a species-specific rule that sets out all
of the protections and prohibitions designed to address the Egyptian
tortoise's specific threats and conservation needs. Although the
statute does not require us to make a ``necessary and advisable''
finding with respect to the adoption of specific prohibitions under
section 9, we find that this rule as a whole satisfies the requirement
in section 4(d) of the Act to issue regulations deemed necessary and
advisable to provide for the conservation of the Egyptian tortoise.
As discussed above under Summary of Biological Status and Threats,
we have concluded that the Egyptian tortoise is likely to become in
danger of extinction within the foreseeable future primarily because of
habitat loss and degradation and collection for the pet trade, in
concert with climate change. Under the 4(d) rule, certain prohibitions
and provisions that apply to endangered wildlife under section 9(a)(1)
prohibitions will help minimize threats that could cause further
declines in the species' status. The provisions of the
[[Page 19016]]
4(d) rule promote conservation of the Egyptian tortoise by ensuring
that activities undertaken with the species by any person under the
jurisdiction of the United States are also supportive of the
conservation efforts undertaken for the species in Libya, Egypt, and
Israel, as well as under the CITES Appendix-I listing. The provisions
of the 4(d) rule are one of many tools we will use to promote the
conservation of the Egyptian tortoise.
Provisions of the 4(d) Rule
In the SSA report, we identify factors such as habitat loss and
degradation and collection of the species for the pet trade, in concert
with climate change, that have negative effects on this species and its
habitat. Additionally, we identify existing regulatory mechanisms in
the tortoise's range countries of Libya, Egypt, and Israel to conserve
the Egyptian tortoise, as well as the international measures of CITES
for Appendix-I species. While we have found these regulatory mechanisms
are not sufficient to prevent the species from likely becoming in
danger of extinction within the foreseeable future throughout all of
its range, we recognize the benefits of these regulatory mechanisms in
helping to conserve the species.
The 4(d) rule provides for the conservation of the Egyptian
tortoise by prohibiting the following activities, except as otherwise
authorized or permitted: importing or exporting; take; possession and
other acts with unlawfully taken specimens; delivering, receiving,
transporting, or shipping in interstate or foreign commerce in the
course of commercial activity; or selling or offering for sale in
interstate or foreign commerce unlawfully taken specimens or offspring
of unlawfully taken specimens.
As discussed above under Summary of Biological Status and Threats,
habitat loss and degradation and collection of the species for the pet
trade are affecting the status of the Egyptian tortoise. A suite of
activities has the potential to affect the Egyptian tortoise in its
range countries, including urban development, agricultural conversion,
grazing, military exercises, and collection for the pet trade. Habitat
degradation will continue in the species' range countries. Prohibiting
take (which applies to take within the United States, within the
territorial sea of the United States, or upon the high seas) will
indirectly contribute to conservation of the species in its range
countries of Libya, Egypt, and Israel by helping prevent any captive-
held Egyptian tortoises in the United States being used to establish a
domestic market for trade of Egyptian tortoise parts or for the
commercial pet trade. For the same reason, regulating interstate
commerce in the species in the course of commercial activity by persons
subject to the jurisdiction of the United States can benefit the
species in the wild by limiting demand in the United States to
noncommercial activities and permitted commercial activities for
scientific purposes or to enhance the propagation or survival of the
species in the wild, such as activities associated with bona fide
conservation breeding. The United States is not a primary destination
for Egyptian tortoises. However, collection of the species for the
illegal international pet trade is ongoing. Further regulating import
and export to, from, and through the United States and foreign commerce
by persons subject to the jurisdiction of the United States could deter
breeding and demand for the species, and help conserve the species by
eliminating the United States as a potential market for illegally
collected and traded Egyptian tortoises.
The 4(d) rule provides an exception for interstate commerce from
public institutions to other public institutions, specifically museums,
zoological parks, and scientific institutions that meet the definition
of ``public'' at 50 CFR 10.12. Demand for Egyptian tortoises held at or
captive-bred by these types of institutions in the United States is not
substantial, nor is it likely to pose a significant threat to the wild
population in the species' range countries. As defined in our
regulations, ``public'' museums, zoological parks, and scientific
institutions refers to such as are open to the general public and are
either established, maintained, and operated as a governmental service
or are privately endowed and organized but not operated for profit.
This exception applies unless prohibited by CITES regulations, for
example if use after import is restricted under 50 CFR 23.55.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued
for the following purposes: for scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act. As noted
above, we may also authorize certain activities associated with
conservation breeding under CBW registrations. We recognize that
captive breeding of wildlife can support conservation, for example by
producing animals that could be used for reintroductions. We are not
aware of any captive-breeding programs for the Egyptian tortoise for
this purpose. There are also certain statutory exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act. The 4(d)
rule applies to all live and dead Egyptian tortoise parts and products,
and supports conservation management efforts for Egyptian tortoise in
the wild in Libya, Egypt, and Israel.
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (42 U.S.C. 4321 et seq.) need not be prepared
in connection with listing a species as an endangered or threatened
species under the Endangered Species Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244).
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Branch of Delisting and Foreign Species (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this rule are the staff members of the U.S.
Fish and Wildlife Service's Species Assessment Team and the Branch of
Delisting and Foreign Species.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
[[Page 19017]]
0
2. In Sec. 17.11, amend paragraph (h) by adding an entry for
``Tortoise, Egyptian'' to the List of Endangered and Threatened
Wildlife in alphabetical order under Reptiles to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Reptiles
* * * * * * *
Tortoise, Egyptian................ Testudo kleinmanni Wherever found...... T 87 FR [Insert
(syn. Testudo Federal Register
werneri). page where the
document begins],
March 30, 2023; 50
CFR 17.42(l).\4d\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.42 by adding paragraphs (j) through (l) to read as
follows:
Sec. 17.42 Special rules--reptiles.
* * * * *
(j) [Reserved]
(k) [Reserved]
(l) Egyptian tortoise (Testudo kleinmanni, syn. Testudo werneri).
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to the Egyptian tortoise. Except as
provided under paragraph (l)(2) of this section and Sec. Sec. 17.4 and
17.5, it is unlawful for any person subject to the jurisdiction of the
United States to commit, to attempt to commit, to solicit another to
commit, or cause to be committed, any of the following acts in regard
to this species:
(i) Import or export, as set forth for endangered wildlife at Sec.
17.21(b).
(ii) Take, as set forth for endangered wildlife at Sec.
17.21(c)(1).
(iii) Possession and other acts with unlawfully taken specimens, as
set forth for endangered wildlife at Sec. 17.21(d)(1).
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth for endangered wildlife at Sec. 17.21(e).
(v) Sale or offer for sale in interstate or foreign commerce, as
set forth for endangered wildlife at Sec. 17.21(f).
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Sell, offer for sale, deliver, receive, carry, transport, or
ship in interstate commerce live Egyptian tortoises from one public
institution to another public institution, if such activity is in
accordance with 50 CFR part 23. For the purposes of this paragraph,
``public institution'' means a museum, zoological park, and scientific
institution that meets the definition of ``public'' at 50 CFR 10.12.
(iii) Take, as set forth at Sec. 17.21(c)(2) through (c)(4) for
endangered wildlife.
(iv) Possess and engage in other acts, as set forth at Sec.
17.21(d)(2) for endangered wildlife.
(v) Conduct activities as authorized by a captive-bred wildlife
registration under Sec. 17.21(g) for endangered wildlife.
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-06312 Filed 3-29-23; 8:45 am]
BILLING CODE 4333-15-P