[Federal Register Volume 70, Number 20 (Tuesday, February 1, 2005)]
[Proposed Rules]
[Pages 5117-5123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1698]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT95


Endangered and Threatened Wildlife and Plants; Exclusion of U.S. 
Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle From Certain 
Prohibitions

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability of a draft environmental 
assessment.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
amend the regulations promulgated under the Endangered Species Act (ESA 
or Act) (16 U.S.C. 1531 et seq.) to add a new subsection to govern 
certain activities with U.S. captive-bred populations of three antelope 
species that have been proposed for listing as endangered, should they 
become listed. These specimens are the scimitar-horned oryx (Oryx 
dammah), addax (Addax nasomaculatus), and dama gazelle (Gazella dama). 
For U.S. captive-bred live specimens, embryos, gametes, and sport-
hunted trophies of these three species, this proposed rule would 
authorize certain otherwise prohibited activities that enhance the 
propagation or survival of the species. International trade in 
specimens of these species will continue to require permits under the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (CITES). We have prepared a draft Environmental Assessment of 
the impact of this proposed rule under regulations implementing the 
National Environmental Policy Act of 1969 (NEPA). The Service seeks 
data and comments from the public on this proposed rule and the draft 
Environmental Assessment.

DATES: Written comments on the proposed rule and the draft 
Environmental Assessment must be submitted by April 4, 2005.

ADDRESSES: Submit any comments and information by mail to the Chief, 
Division of Scientific Authority, U.S. Fish and Wildlife Service, 4401 
N. Fairfax Drive, Room 750, Arlington, VA 22203; or by fax to 703-358-
2276; or by e-mail to <a href="/cdn-cgi/l/email-protection#80d3e3e9e5eef4e9e6e9e3c1f5f4e8eff2e9f4f9c0e6f7f3aee7eff6"><span class="__cf_email__" data-cfemail="60330309050e1409060903211514080f12091419200617134e070f16">[email protected]</span></a>. Comments and 
supporting information will be available for public inspection, by 
appointment, from 8 a.m. to 4 p.m. at the above address. You may also 
obtain copies of the November 5, 1991, proposed rule; July 24, 2003, 
proposed rule and notice to re-open the comment period; November 26, 
2003, proposed rule and notice to re-open the comment period (68 FR 
66395); and a copy of the draft Environmental Assessment from the above 
address.

SUPPLEMENTARY INFORMATION:

Background

    Historically, the scimitar-horned oryx (Oryx dammah), addax (Addax 
nasomaculatus), and dama gazelle (Gazella dama) occupied the same 
general region of North Africa. The primary reason for the decline of 
all three antelope species in their native range is desertification, 
coupled with severe droughts, which has dramatically reduced available 
habitat. The growth of permanent farming in their native range has 
brought additional pressures, such as human habitat disturbance and 
competition from domestic livestock, which have restricted these 
antelopes to marginal habitat. Additional pressures from the civil wars 
in Chad and the Sudan have resulted in increased military activity, 
construction, and uncontrolled hunting.
    Of the three antelope species, the scimitar-horned oryx is the most 
threatened with extinction. By the mid-1980s, it was estimated that 
only a few hundred were left in the wild, with the only viable 
populations known to be in Chad. However, no sightings of this species 
in the wild have been reported since the late 1980s, and the 2003 Red 
List of Threatened Species shows that the status of the scimitar-horned 
oryx is ``extinct in the wild'' (World Conservation Union [IUCN] 2003). 
Captive-bred specimens of this antelope have been placed into large 
fenced areas for breeding in Tunisia. Once animals are reintroduced, 
continuous natural breeding is anticipated so that wild populations 
will be re-established.
    It is believed that the addax was extirpated from Tunisia during 
the 1930s, and the last animals were killed in Libya and Algeria in 
1966 and 1970, respectively. Remnant populations may still exist in the 
remote desert areas of Chad, Niger, and Mali, with occasional movements 
into Libya and Algeria during times of good rainfall. In the IUCN/SSC 
Antelope Specialist Group's Global Survey of Antelopes, the addax is 
considered to be ``regionally extinct'' (Mallon and Kingswood 2001). 
The addax is listed as critically endangered in the 2003 Red List of 
Threatened Species and probably numbers fewer than 250 in the wild 
(IUCN 2003).
    The dama gazelle is able to utilize both semi-desert and desert 
habitats, and is smaller than the scimitar-horned oryx or addax. Of the 
three antelope species, the dama gazelle is the least susceptible to 
pressures from humans and livestock. The original source of its decline 
was uncontrolled hunting; however, habitat loss through human 
settlement and livestock grazing, in addition to civil unrest, has more 
recently contributed to the decline. It is estimated that only small 
numbers survive in most of the eight countries within its historical 
range. The dama gazelle has declined rapidly over the last 20 years, 
with recent estimates of fewer than 700 in the wild. Noble (2003) 
estimates that the wild population of addra gazelle (G. dama 
ruficollis) is less than 200 specimens, the wild population of dama 
gazelle (G. dama dama) is about 500 specimens, and the mhorr gazelle 
(G. dama mhorr) is extinct in the wild. It was previously extinct in 
Senegal, but has since been reintroduced, and in 1997, at least 25 
animals existed there as part of a semi-captive breeding program (IUCN 
2003). The IUCN lists all subspecies of dama gazelles as endangered.
    For further information regarding background biological 
information, factors affecting the species, and conservation measures 
available to scimitar-horned oryx, addax, and dama gazelle, please 
refer to the November 5, 1991, and July 24, 2003, Federal Register 
documents discussed below.

Previous Federal Action

    A proposed rule to list all three species as endangered under 50 
CFR 17.11(h) was published on November 5, 1991 (56 FR 56491). We re-
opened the comment period to request current information and comments 
from the public regarding the proposed rule on July 24, 2003 (68 FR 
43706), and November 26, 2003 (68 FR 66395). Stakeholders and 
interested parties, including the public, governmental agencies, the 
scientific community, industry, and the range countries of the species, 
were requested to submit comments or information. We received 32 
responses by the end of the comment period, including multiple comments 
from some stakeholders. In accordance with the Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities published 
on July 1, 1994 (59 FR 34270), we selected three appropriate 
independent specialists to

[[Page 5118]]

review the proposed rule. The purpose of such peer review is to ensure 
that listing decisions are based on scientifically sound data, 
assumptions, and analysis. The reviewers selected have considerable 
knowledge and field experience with scimitar-horned oryx, addax, and 
dama gazelle biology and conservation. Comments were received from all 
of the peer reviewers.

Contribution of Captive Breeding to Species Propagation or Survival

    Captive breeding in the United States has enhanced the propagation 
and survival of the scimitar-horned oryx, addax, and dama gazelle 
worldwide by rescuing these species from near extinction and providing 
the founder stock necessary for reintroduction. Some U.S. captive-
breeding facilities allow sport hunting of surplus captive-bred 
animals. Sport hunting of surplus captive-bred animals generates 
revenue that supports these captive breeding operations and relieves 
hunting pressure on wild populations. We are proposing a new rule under 
the Act's regulations in 50 CFR part 17 that would authorize otherwise 
prohibited activities for U.S. captive-bred live specimens, embryos, 
gametes, and sport-hunted trophies of these species that enhance the 
propagation or survival of the species. Thus, we are proposing that, 
notwithstanding paragraphs (b), (c), (e), and (f) of 50 CFR 17.21, any 
person subject to the jurisdiction of the United States may take; 
export or re-import; deliver, receive, carry, transport, or ship in 
interstate or foreign commerce, in the course of a commercial activity; 
or sell or offer for sale in interstate or foreign commerce any live 
specimen, embryo, gamete, or sport-hunted trophy of scimitar-horned 
oryx, addax, or dama gazelle that was bred in captivity in the United 
States.
    A consistent theme among the comments received from peer reviewers 
and stakeholders on the proposed rule to list these species as 
endangered is the vital role of captive breeding in the conservation of 
these species. One reviewer noted that 100% of the world's scimitar-
horned oryx population (including the reintroduced population that is 
in an enclosed area), 71% of the addax population, and 48% of the 
world's dama gazelle population are in captive herds. Captive-breeding 
programs operated by zoos and private ranches have effectively 
increased the number of these animals while genetically managing their 
populations. International studbook keepers and managers of the species 
in captivity manage these programs in a manner that maintains the 
captive populations as a demographically and genetically diverse 
megapopulation (Mallon and Kingswood 2001). In the 1980s and 1990s, 
captive-breeding operations in Germany, the United Kingdom, and the 
United States provided scimitar-horned oryx, addax, and dama gazelle to 
Bou-Hedma National Park in Tunisia (Mallon and Kingswood 2001). These 
animals have become the founding stock of captive in situ herds that 
have grown substantially since 1995. The IUCN Species Survival 
Commission has proposed that some of the antelopes produced be used to 
establish other captive-breeding operations within the range countries 
or, given the appropriate conditions in the wild, for reintroduction. 
Similar in situ breeding programs for future reintroduction are 
occurring in Senegal and Morocco with captive stock produced and 
provided by breeding operations outside of these countries.
    In addition, this proposed rule would not authorize or lead to the 
removal of any specimen of the three species from the wild. This rule 
would not affect prohibitions against possession and other acts with 
unlawfully taken wildlife or importation. This rule also would apply 
only to specimens that are captive bred in the United States. Any 
person who wishes to engage in any act that is prohibited under the 
Endangered Species Act with a specimen that has not been captive bred 
in the United States will still need to obtain a permit under the Act. 
The issuance or denial of such permits is decided on a case-by-case 
basis and only after all required findings have been made.
    The probable positive direct and indirect effects of facilitating 
captive breeding in the U.S. for the conservation of scimitar-horned 
oryx, addax, and dama gazelle are exemplified in the research and 
reintroduction efforts involving the American Zoo and Aquarium 
Association (AZA) and the Sahelo-Saharan Interest Group (SSIG) of the 
United Nations Environment Program. In North America, the AZA manages 
captive populations of scimitar-horned oryx, addax, and dama gazelle 
through Species Survival Plans (SSP). The scimitar-horned oryx 
population in North America and Europe is derived from two captures 
that occurred in Chad in 1963 and 1966. Members of the scimitar-horned 
oryx SSP are faced with three challenges (Antelope Taxon Advisory Group 
2002c): they must manage the captive population to maximize the genetic 
contributions of founder stock; second, they must find solutions for 
disposition of surplus animals given the limited holding space among 
SSP members; and third, they must find facilities that can house 
individual males or bachelor herds. Only through inter-institutional 
collaboration among members, such as the exchange of live specimens or 
gametes to maintain genetic diversity, can these challenges be 
surmounted. In one example, thirty founder lines are represented at one 
ranch that works closely with the SSP. Since typical oryx herds consist 
of one male and 10-30 females, there will always be a need to manage 
non-breeding males. Although the SSP consists mostly of AZA-accredited 
zoos, ranches can serve as repositories for surplus animals. These 
partnerships also provide opportunities for behavioral and other 
research in spacious areas found in some zoos and ranches that can be 
used in forming and preparing groups of animals for reintroduction.
    Members of the Addax SSP have also been involved in translocating 
animals for captive breeding and release in Tunisia and Morocco. 
Animals held by members of the SSP are included in an international 
studbook for this species that includes addaxes in zoos and private 
facilities worldwide (Antelope Taxon Advisory Group 2002a). The dama 
gazelle North American studbook also includes zoos and ranch 
participants worldwide. Some of the specimens bred in zoos originated 
from ranched stock (Metzler 2000).
    We are unaware of any negative direct or indirect effects from this 
rule on wild populations. As mentioned above, this proposed rule would 
not authorize or lead to the removal of any specimen of the three 
species from the wild. Indeed, many facilities in the United States 
that breed these species are working with range countries to breed and 
reintroduce specimens in areas that they have occupied historically. In 
2000, the SSIG was formed as a consortium of individuals and 
organizations interested in conserving Sahelo-Saharan antelopes and 
their ecosystems (SSIG 2002). The SSIG has members representing 17 
countries and shares information on wildlife management and 
conservation, captive breeding, wildlife health and husbandry, 
establishment and management of protected areas, and wildlife survey 
methods. Members are involved in in situ and ex situ conservation 
efforts for the scimitar-horned oryx, addax, and dama gazelle. Several 
of its projects involve the translocation of captive-bred antelopes to 
range countries for establishment of herds in large fenced breeding 
areas prior to reintroduction.
    The proposed rule would not directly or indirectly conflict with 
any known program intended to enhance the

[[Page 5119]]

survival probabilities of the three antelope species. The SSP and SSIG 
programs work collaboratively with range country scientists and 
governments. Although the proposed rule would not authorize or lead to 
the removal of any specimen of the three species from the wild, it may 
contribute to other programs by providing founder stock for 
reintroduction or research.
    This proposed rule would reduce the threat of extinction facing the 
scimitar-horned oryx, addax, and dama gazelle by facilitating captive 
breeding for all three species in the United States. Based on 
information available to the Service, captive breeding in the U.S. has 
contributed significantly to the conservation of these species. 
Scimitar-horned oryx are extinct in the wild and therefore, but for 
captive breeding, the species would be extinct. For addax and dama 
gazelle, they occur in very low numbers in the wild and a significant 
percentage of remaining specimens survive only through captivity (71% 
and 48% respectively). Threats that have reduced the species' to 
current levels in the wild continue throughout most of the historic 
range. As future opportunities arise for reintroduction in the antelope 
range countries, captive-breeding programs will be able to provide 
genetically diverse and otherwise suitable specimens. Ranches and large 
captive wildlife parks for non-native populations (e.g., The Wilds, 
Ohio; Fossil Rim Wildlife Center, Texas) are able to provide large 
areas of land that simulate the species' native habitat and can 
accommodate a larger number of specimens than can most urban zoos. 
Thus, they provide opportunities for research, breeding, and preparing 
antelopes for eventual reintroduction. International consortia of zoos, 
private owners, researchers, and range country decision makers have 
acknowledged the need to protect the habitat of the scimitar-horned 
oryx, addax, and dama gazelle. They also recognize that, but for 
captive breeding, it would be difficult, or in some cases impossible, 
to restore the species in the wild, particularly for species that have 
become extinct in the wild.
    One way the proposed rule would reduce the threat of extinction is 
by allowing limited sport hunting of U.S. captive-bred specimens to 
facilitate captive breeding of all three species. Given the cost of 
establishing and maintaining a large captive breeding operation and the 
large amount of land that is required to maintain bachelor herds or 
surplus animals, it is difficult for many private landowners to 
participate in such endeavors. One incentive to facilitate such captive 
breeding operations and ensure that genetically viable populations are 
available for future reintroduction programs is to allow the limited 
sport hunting of captive-bred specimens of these species to generate 
needed operational funds. Such an activity, therefore, reduces the 
threat of the species' extinction. Most of the available land for 
captive-held specimens is owned by private landowners (ranchers) or 
zoos. In Texas, the ranched scimitar-horned oryx population went from 
32 specimens in 1979 to 2,145 in 1996; addax increased from 2 specimens 
in 1971 to 1,824 in 1996; and dama gazelle increased from 9 specimens 
in 1979 to 369 in 2003 (Mungall 2004). These population increases were 
due mostly to captive breeding at the ranches supplemented with some 
imported captive-bred founder stock. Limited hunting of captive-bred 
specimens facilitated these increases by generating revenue for herd 
management and the operation of the facility. Ranches also need to 
manage populations demographically (i.e., age, gender) and genetically 
(i.e., maximize genetic diversity). Such management may include culling 
specimens, which may be accomplished through sport hunting. For 
example, a ranch may need to reduce the number of adult males to 
achieve the necessary sex ratio for establishing a polygamous breeding 
group and facilitating the typical breeding behavior of the species. 
Hunting also provides an economic incentive for private landowners such 
as ranchers to continue to breed these species and maintain them as a 
genetic reservoir for future reintroduction or research, and as a 
repository for excess males from smaller populations, such as those 
held by zoos. Sport hunting of U.S. captive-bred specimens may reduce 
the threat of extinction of wild populations by providing an 
alternative to legal and illegal hunting of wild specimens in range 
countries.
    The movement of live U.S. captive-bred specimens, both by 
interstate transport and export, is critical to the captive-breeding 
efforts to manage the captive populations as well as provide animals 
for reintroduction. Since 1997, 15 scimitar-horned oryx, 40 addax, and 
36 dama gazelle have been exported from the United States. Population 
managers may recommend that specimens be exchanged among breeding 
institutions to achieve management goals for genetic or other reasons. 
These institutions may be separated by State (within the United States) 
or national boundaries. Zoos in Germany, for example, exchange 
specimens with zoos in the United States, as recommended by the 
International Studbook Keeper. The need to quickly move U.S. captive-
bred specimens among breeding facilities is reflected in this proposed 
rule by allowing such movement without requiring a separate ESA permit.
    The opinions or views of scientists or other persons or 
organizations having expertise concerning these species have been taken 
into account by this proposed rule. The comments received from peer 
reviewers on our proposed rule for the listing of the three antelopes 
as endangered alerted us to the vital role that captive breeding, 
whether at zoos or ranches, is playing in species recovery and 
reintroduction. Thus, the opinions or views of scientists or other 
persons or organizations having expertise concerning the three antelope 
species and other germane matters have been considered in the 
development of this proposed rule.
    The U.S. expertise, facilities, and other resources available to 
captive-breeding operations have resulted in such a high level of 
breeding success that the SSIG 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. The U.S. 
specimens have resulted from very few wild-caught founders that have 
been carefully managed to increase the numbers of specimens and 
maintain genetic diversity. Husbandry methods are shared by 
participants in regional and international studbooks through specialist 
meetings such as the Antelope Taxon Advisory Group meeting held at the 
AZA Annual Meeting. Such cooperation allows the sharing of resources 
among participants of coordinated breeding programs as specimens are 
moved from one facility to another according to management 
recommendations. As indicated by the Scimitar-horned Oryx SSP, one of 
the major issues confronting the captive-breeding community is how to 
preserve the necessary genetic diversity and manage population surplus, 
particularly given the space limitations at some facilities. Private 
ranches in the United States have contributed to the success of 
captive-breeding programs by absorbing the surplus specimens produced 
in zoos so that zoos can utilize available space for more genetically 
important specimens or the appropriate herd social structure. Ranches 
have also enlarged the captive populations since they are able to house 
more specimens because of their greater space dedicated to these 
species than is available in zoos.

[[Page 5120]]

    Because captive breeding in the U.S. has already contributed 
significantly to the propagation or survival of the three antelope 
species and because of the need to facilitate the continued captive 
breeding of these species among private ranchers and zoos, the proposed 
rule is an appropriate regulatory management provision for scimitar-
horned oryx, addax, and dama gazelle captive-bred in the United States. 
The probable direct and indirect effects of this proposed rule will be 
to facilitate activities associated with captive breeding and thus 
contribute to the propagation and survival of the species. The proposed 
rule would not, directly or indirectly, conflict with any known program 
intended to enhance the survival of the population from which the 
original breeding stock was removed. By maintaining genetic diversity 
and providing captive-bred stock for reintroduction efforts and 
research, zoos and ranches in the United States are reducing the threat 
of extinction of the three antelope species. The proposed rule would 
facilitate the functioning of programs such as those organized by the 
AZA and SSIG, and encourage the breeding and management of these 
antelopes in zoos and on private ranches. In fact, the proposed rule 
provides an incentive to continue captive breeding.
    Therefore, we are proposing to amend current regulations in 50 CFR 
17.21 that would authorize otherwise prohibited activities, for U.S. 
captive-bred live specimens, embryos, gametes, and sport-hunted 
trophies of these species, that enhance the propagation or survival of 
the species. We are proposing that any person subject to the 
jurisdiction of the United States may take; export or re-import; 
deliver, receive, carry, transport, or ship in interstate or foreign 
commerce, in the course of a commercial activity; or sell or offer for 
sale in interstate or foreign commerce live specimens or sport-hunted 
trophies of scimitar-horned oryx, addax, or dama gazelle that were 
captive-bred in the United States.
    The proposed rule would not exempt the importation of specimens 
from foreign facilities. Since the proposed rule pertains only to U.S. 
captive-bred specimens, all wild specimens and specimens bred in 
captivity outside of the United States would remain subject to the 
Act's prohibitions as set forth in Sec.  17.21. The proposed rule 
contains provisions that will allow the Service to monitor the 
activities being carried out by captive-breeding operations within the 
United States to ensure that these activities continue to provide a 
benefit to the three antelope species. It is, in part, due to the fact 
that we can require recordkeeping and access to records that 
distinguishes U.S. captive-breeding operations from foreign captive-
breeding operations. In addition, we have no information on how foreign 
breeding operations (other than some zoos) manage their captive 
populations. Until the Service has significantly more information on 
the breeding operations in other countries, how these operations have 
contributed to the propagation or survival of the species, and the 
controls that have been established for these breeding operations, the 
Service cannot expand this proposed exemption to specimens produced 
outside the United States.
    The proposed rule would not apply to any U.S. specimen that does 
not meet the definition of captive-bred under 50 CFR 17.3. For any 
animal that does not meet the definition or for captive-bred specimens 
produced outside the United States or wild specimens, all prohibitions 
under Sec.  17.21(a)-(f), 17.22, and 17.23 would apply. The proposed 
rule also does not include dead specimens other than sport-hunted 
trophies and specimens that are from activities that do not increase or 
sustain population numbers.
    The United States is a Party to CITES. The scimitar-horned oryx, 
addax, and dama gazelle are listed in Appendix I of CITES, which 
requires strict regulation of international movement of these species. 
In general, any international trade in live or dead specimens of 
Appendix-I species requires both export permits and import permits 
issued by the CITES Management Authorities of the exporting and 
importing countries, respectively. To receive such a permit, certain 
criteria must be met, including that the Management Authority of the 
importing country must be satisfied that the import is not to be used 
for primarily commercial purposes. The importing country's Scientific 
Authority must advise the Management Authority that the import will be 
for purposes that are not detrimental to the survival of the species 
and, if it is a live specimen, that the proposed recipient is suitably 
equipped to house and care for it. The proposed rule would not affect 
the CITES requirements for these species.
    Any commercial trade in specimens of Appendix-I species is limited 
to the extent to which such specimens may qualify for an exemption to 
the general permit provisions of CITES, either because they are pre-
Convention specimens (i.e., acquired before the species was listed 
under CITES) or, for animals such as these antelopes, because they were 
bred in captivity. These exemptions have strict requirements. Pre-
Convention specimens must be adequately documented as such, so that it 
is clear as to when the specimen was acquired. For specimens bred in 
captivity (including parts and products derived from such animals), 
they must have been produced from parents that mated in captivity, and 
the parents must have been acquired in accordance with national laws 
and CITES requirements, and must have been obtained in a manner that 
was not detrimental to the survival of the wild population. The species 
must also have been bred in captivity to the second or subsequent 
generations, and they must have been produced in a facility registered 
with the CITES Secretariat as an operation breeding Appendix-I species 
for commercial purposes. Registration of captive-breeding operations 
carries further requirements, including review by experts, and 
notification of and opportunity for comment--including objections--by 
all the CITES Parties.
    Therefore, any import into or export from the United States of 
specimens of these species would not be authorized until all required 
conservation findings have been made and permits issued by the 
Service's Division of Management Authority. These existing protections 
under CITES, in conjunction with the new provisions for the species 
under this rule, would create an appropriate regulatory framework that 
protects populations in the wild, ensures appropriate management of 
U.S. captive-bred populations, and provides an incentive for future 
captive breeding.
    We find that the scimitar-horned oryx, addax, and dama gazelle are 
dependent on captive breeding and activities associated with captive 
breeding for their conservation, and that activities associated with 
captive breeding within the United States enhance the propagation and 
survival of these species. We therefore propose amending 50 CFR 17.21 
by adding a new subsection (h), which would apply to U.S. captive-bred 
scimitar-horned oryx, addax, and dama gazelle. The revision would allow 
for the take; export or re-import; delivery, receipt, carrying, 
transporting or shipping in interstate or foreign commerce, in the 
course of a commercial activity; or sale or offering for sale in 
interstate or foreign commerce any U.S. captive-bred scimitar-horned 
oryx, addax, or dama gazelle live specimen, sport-hunted trophy, 
embryo, or gamete.

Public Comments Solicited

    We will accept written comments and information pertaining to this 
proposed rule during this comment period from

[[Page 5121]]

the public, other concerned governmental agencies, the scientific 
community, industry, or any other interested party. Comments on the 
draft Environmental Assessment will also be considered in our decision 
regarding whether to finalize the proposed rule.
    Our practice is to make comments, including names and addresses of 
respondents, available for public review during regular business hours. 
Any person commenting may request that we withhold their home address, 
which we will honor to the extent allowable by law. In some 
circumstances, we may also withhold a commenter's identity, as 
allowable by law. If you wish us to withhold your name or address, you 
must state this request prominently at the beginning of your comment. 
However, we will not consider anonymous comments. To the extent 
consistent with applicable law, we will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety. Comments 
and materials received will be available for public inspection, by 
appointment, from 8 a.m. to 4 p.m., Monday through Friday, at the 
Division of Scientific Authority (see ADDRESSES section).

Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping or order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (5) Is the description of the rule in 
the SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the proposed rule? What else could we do to make the rule 
easier to understand? Send a copy of any comments that concern how we 
could make this rule easier to understand to Office of Regulatory 
Affairs, Department of the Interior, Room 7229, 1849 C Street NW., 
Washington, DC 20240. You may also e-mail the comments to 
<a href="/cdn-cgi/l/email-protection#bbfec3c8ded8fbd2d4c895dfd4d295dcd4cd"><span class="__cf_email__" data-cfemail="fdb8858e989ebd94928ed3999294d39a928b">[email protected]</span></a>.

Required Determinations

    A Record of Compliance was prepared for this proposed rule. A 
Record of Compliance certifies that a rulemaking action complies with 
the various statutory, Executive Order, and Department Manual 
requirements applicable to rulemaking. Without this proposed 
regulation, individuals subject to the jurisdiction of the United 
States would need permits to engage in various otherwise prohibited 
activities, including domestic and international trade in live and dead 
captive-bred specimens for commercial purposes. Captive-bred specimens 
in international trade for non-commercial purposes (e.g., breeding 
loans requiring export or import) would have to be authorized through 
the permit process. This process takes time, sometimes causing delays 
in moving animals for breeding or reintroduction. Such movements must 
often be completed within a narrow time frame and can be further 
complicated by quarantine requirements and other logistics. We note 
that the economic effects of the proposed rule do not rise to the level 
of ``significant'' under the following required determinations.

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, the 
Office of Management and Budget has determined that this proposed rule 
is not a significant regulatory action. This proposed rule would not 
have an annual economic impact of more than $100 million, or 
significantly affect any economic sector, productivity, jobs, the 
environment, or other units of government. This proposed rule would 
reduce the regulatory burden on captive-breeding operations that breed 
the scimitar-horned oryx, addax, and dama gazelle if the three 
antelopes are listed as endangered because it provides exemptions to 
the prohibitions of section 9 of the ESA that would otherwise apply to 
businesses and individuals under U.S. jurisdiction. The exemptions to 
the prohibitions of the ESA provided by this proposed rule will reduce 
economic costs of the listing. The economic effect of the proposed rule 
is a benefit to the captive-breeding operations for the three antelopes 
because it would allow the take and interstate commerce of captive-bred 
specimens. The proposed rule, by itself, would not have an annual 
economic impact of more than $100 million, or significantly affect any 
economic sector, productivity, jobs, the environment, or other units of 
government. A cost-benefit and economic analysis is not required. This 
proposed rule will not create inconsistencies with other Federal 
agencies' actions. Thus, no Federal agency actions are affected by this 
proposed rule.
    This proposed rule will not materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients. This proposed rule will not raise novel legal or policy 
issues. The Service has previously promulgated species-specific rules 
for other endangered and threatened species, including other rules for 
captive-bred specimens.

Regulatory Flexibility Act

    To assess the effects of the proposed rule on small entities, we 
focused on the exotic wildlife ranching community in the United States 
because these are the entities most likely to be affected by the 
proposed rule. We have determined that this proposed rule will not have 
a significant economic effect on a substantial number of small entities 
as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
because it allows for the continued breeding of the species and trade 
in live specimens, embryos, gametes, and sport-hunted trophies of the 
three antelopes. An initial Regulatory Flexibility Analysis is not 
required. Accordingly, a Small Entity Compliance Guide is not required. 
If the three antelope species are listed, this proposed rule would 
reduce the regulatory burden, because without this rule all 
prohibitions of section 9 of the ESA would apply (i.e., take; import, 
export; delivery, receipt, carrying, transporting or shipping in 
interstate or foreign commerce, in the course of a commercial activity; 
or sale or offering for sale in interstate or foreign commerce any live 
or dead specimen).

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 
would reduce regulatory obligations and will not have an annual effect 
on the economy of $100 million or more; will not cause a major increase 
in costs or prices for consumers, individual industries, Federal, 
State, or local government agencies, or geographic regions; and will 
not have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, 
et seq.), this proposed rule would not

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impose an unfunded mandate on State, local, or tribal governments or 
the private sector of more than $100 million per year. This proposed 
rule would not have a significant or unique effect on State, local, or 
tribal governments or the private sector. A Small Government Agency 
Plan is not required.

Takings

    In accordance with Executive Order 12630, this proposed rule does 
not have significant takings implications. By reducing the regulatory 
burden placed on affected individuals resulting from the possible 
listing of the three antelopes as endangered species, this proposed 
rule would not affect the likelihood of potential takings. Affected 
individuals would have more freedom to pursue activities that involve 
captive-bred specimens without first obtaining individual 
authorization.

Federalism

    In accordance with Executive Order 13132, this proposed rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism assessment.

Civil Justice Reform

    In accordance with 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 sections 3(a) and 
3(b)(2) of the Executive 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 impose new reporting or 
recordkeeping requirements on State or local governments, individuals, 
businesses, or organizations. We cannot conduct or sponsor, and you are 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

National Environmental Policy Act

    Council on Environmental Quality regulations in 40 CFR 1501.3(b) 
state that an agency ``may prepare an environmental assessment on any 
action at any time in order to assist agency planning and decision 
making.'' We have drafted an environmental assessment for this proposed 
rule in accordance with the criteria of the National Environmental 
Policy Act of 1969 (NEPA). We are soliciting comments on the 
environmental assessment as well as on the proposed rule.

Government-to-Government Relationship With Tribes

    In accordance with 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.

Executive Order 13211

    We have evaluated this proposed rule in accordance with E.O. 13211 
and have determined that this rule would have no effects on energy 
supply, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

References Cited

Antelope Taxon Advisory Group. 2002a. Addax Fact Sheet. American Zoo 
and Aquarium Association. http://www.csew.com/antelopetag.
Antelope Taxon Advisory Group. 2002b. Addra or Dama Gazelle Fact 
Sheet. American Zoo and Aquarium Association. http://www.csew.com/antelopetag.
Antelope Taxon Advisory Group. 2002c. Scimitar-Horned Oryx Fact 
Sheet. American Zoo and Aquarium Association. http://www.csew.com/antelopetag.
IUCN (World Conservation Union). 2003. 2003 IUCN Red List of 
Threatened Species. http://www.iucn.org.
Mallon, D.P., and S.C. Kingswood (Compilers). 2001. Antelopes. Part 
4: North Africa, the Middle East, and Asia. Global Survey and 
Regional Action Plans. SSC Antelope Specialist Group. IUCN, Gland, 
Switzerland and Cambridge, UK. Viii + 260 pp.
Metzler, S. 2000. Addra Gazelle Gazella dama ruficollis North 
American Regional Studbook: December 31, 1999 Update. Disney's 
Animal Kingdom: Orlando, Florida.
Mungall, E.C. 2004. Submission for the Comment Period Listing of 
Scimitar-horned Oryx, Addax, and Dama Gazelle Under the Endangered 
Species Act: A Technical Report Prepared for the Exotic Wildlife 
Association.
Noble, D. 2003. Overview and status of captive antelope populations. 
Third Annual Sahelo-Saharan Interest Group Meeting, p. 41
SSIG (Sahelo-Saharan Interest Group) 2002. Third Annual Sahelo-
Saharan Interest Group Meeting Proceedings. Available from S. 
Monfort, Chair SSIG, National Zoological Park. Smithsonian 
Institution: Washington, DC.

Author

    The primary author of this notice is Robert R. Gabel, Chief, 
Division of Scientific Authority, U.S. Fish and Wildlife Service 
(see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

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.

    2. Amend Sec. 17.21 by adding paragraph (h) to read as follows:


Sec.  17.21  Prohibitions.

* * * * *
    (h) U.S. captive-bred scimitar-horned oryx, addax, and dama 
gazelle. Notwithstanding paragraphs (b), (c), (e) and (f) of this 
section, any person subject to the jurisdiction of the United States 
may take; export or re-import; deliver, receive, carry, transport or 
ship in interstate or foreign commerce, in the course of a commercial 
activity; or sell or offer for sale in interstate or foreign commerce 
live specimens, embryos, gametes, and sport-hunted trophies of 
scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and 
dama gazelle (Gazella dama) provided:
    (1) The purpose of such activity is associated with the transfer of 
live specimens, embryos, or gametes or sport hunting in a manner that 
contributes to increasing or sustaining captive population numbers or 
to potential reintroduction to range countries;
    (2) The specimen was captive-bred, in accordance with Sec. 17.3, 
within the United States;
    (3) Any exports of such specimens meet the requirements of 
paragraph (g)(4) of this section, as well as parts 13 and 23 of this 
chapter;
    (4) Each specimen to be re-imported is uniquely identified by a 
tattoo or other means that was reported on the documentation required 
under (h)(3); and
    (5) Each person claiming the benefit of the exception of this 
paragraph (h) must maintain accurate written records of activities, 
including births, deaths, and transfers of specimens, and make those 
records accessible to Service agents for inspection at reasonable hours 
set forth in Sec. Sec.  13.46 and 13.47 of this chapter.


[[Page 5123]]


    Dated: January 10, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-1698 Filed 1-31-05; 8:45 am]
BILLING CODE 4310-55-P


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