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designated agent must submit the Act, and a person will need to qualify populations of the addax may still exist application as a new application. for an exemption or obtain an in remote desert areas, but probably However, we will provide an extended authorization under the current fewer than 600 occur in the wild. Only expiration date of two years for EX statutory and regulatory requirements to small numbers of dama gazelle are classification approvals that expire conduct any prohibited activities. estimated to occur in the species’ through December 31, 2012. DATES: This rule becomes effective on historical range, with recent estimates of Additionally, we will only accept April 4, 2012. An extended effective fewer than 700 in the wild. Captive- applications that seek to add new item date is being provided to facilitate in breeding programs operated by zoos and names to existing EX classification outreach to the affected communities. private ranches have increased the approvals from the manufacturer or its Several major industry events are number of these antelopes, while designated agent. If the manufacturer occurring in the beginning of 2012 genetically managing their herds and was not the original applicant, the where Service attendance will provide providing founder stock necessary for application must be submitted by the greater communication on the impacts reintroduction. The Sahelo-Saharan manufacturer or its designated agent as of this rule and will ensure greater Interest Group (SSIG) of the United a new application. Further, applications compliance by the affected Nations Environment Program estimated from non-manufacturers that were communities. In addition, an extended that there are 4,000–5,000 scimitar- denied prior to June 29, 2011 must be effective date will allow the affected horned oryx, 1,500 addax, and 750 resubmitted by the manufacturer. community to either legally sell their dama gazelle in captivity worldwide, Finally, EX approvals are non- specimens, if they choose to divest many of which are held in the United transferable, and therefore may not be themselves of these species, or to apply States. Based on a 2010 census of its sold or transferred. for authorization or permits to continue members, the Exotic Wildlife Issued in Washington, DC, on December carrying out previously approved Association (EWA) estimates there are 30, 2011. activities. 11,032 scimitar-horned oryx, 5,112 Magdy El-Sibaie, ADDRESSES: You may obtain information addax, and 894 dama gazelle on EWA Associate Administrator for Hazardous about permits or other authorizations to member ranches. Materials Safety, Pipeline and Hazardous carry out otherwise prohibited activities On September 2, 2005 (the same date Materials Safety Administration. by contacting the U.S. Fish and Wildlife that we listed the three antelopes as [FR Doc. 2011–33853 Filed 1–4–12; 8:45 am] Service, Division of Management endangered), the Service also published BILLING CODE 4910–60–P Authority, Branch of Permits, 4401 N. a new regulation (70 FR 52310) at 50 Fairfax Drive, Room 212, Arlington, VA CFR 17.21(h) to govern certain activities 22203; telephone: (703) 358–2104 or with U.S. captive-bred animals of these DEPARTMENT OF THE INTERIOR (toll free) (800) 358–2104; facsimile: three species. For live antelopes, (703) 358–2281; email: including embryos and gametes, and Fish and Wildlife Service [email protected]; Web sport-hunted trophies of these three site: http://www.fws.gov/international/ species, the regulation authorized 50 CFR Part 17 index.html. certain otherwise prohibited activities where the purpose of the activity is [Docket No. FWS–R9–IA–2010–0056; FOR FURTHER INFORMATION CONTACT: FF09A30000 123 FXGO16710900000R4] Robert R. Gabel, Chief, Division of associated with the management of the Management Authority, U.S. Fish and species in a manner that contributed to RIN 1018–AX29 Wildlife Service, 4401 N. Fairfax Drive, increasing or sustaining captive Suite 212, Arlington, VA 22203; numbers or to potential reintroduction Endangered and Threatened Wildlife to range countries. These activities and Plants; Removal of the Regulation telephone 703–358–2093; fax 703–358– 2280. If you use a telecommunications include take; export or re-import; That Excludes U.S. Captive-Bred delivery, receipt, carrying, transport or Scimitar-Horned Oryx, Addax, and devise for the deaf (TDD), call the Federal Information Relay Service shipment in interstate or foreign Dama Gazelle From Certain commerce in the course of a commercial Prohibitions (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: activity; and sale or offer for sale in AGENCY: Fish and Wildlife Service, interstate or foreign commerce. Interior. Background The promulgation of the regulation at ACTION: Final rule. On September 2, 2005 (70 FR 52319), 50 CFR 17.21(h) was challenged as the Service determined that the violating section 10 of the Act and the SUMMARY: We, the U.S. Fish and scimitar-horned oryx (Oryx dammah), National Environmental Policy Act (42 Wildlife Service (Service), are revising addax (Addax nasomaculatus), and U.S.C. 4321 et seq.) in the United States the regulations that implement the dama gazelle (Gazella dama) were District Court for the District of Endangered Species Act of 1973, as endangered throughout their ranges Columbia (see Friends of Animals, et al., amended (Act), by removing the under the Act (16 U.S.C. 1531 et seq.). v. Ken Salazar, Secretary of the Interior exclusion of U.S. captive-bred live The numbers of these species of and Rebecca Ann Cary, et al., v. Rowan wildlife and sport-hunted trophies of antelopes in the wild have declined Gould, Acting Director, Fish and three endangered antelopes—scimitar- drastically in the deserts of North Africa Wildlife Service, et al., 626 F. Supp. 2d horned oryx, addax, and dama gazelle— over the past 50 years. The causes of 102 (D.D.C. 2009)). The Court found that from the prohibition of certain decline are habitat loss (desertification, the rule for the three antelope species activities, such as take and export, permanent human settlement, and violated section 10(c) of the Act by not under the Act. This change to the competition with domestic livestock), providing the public an opportunity to regulations is in response to a court regional military activity, and comment on activities being carried out order that found that the rule for these uncontrolled killing. With the exception with these three antelope species. On three species violated section 10(c) of of reintroduced animals, no sightings of June 22, 2009, the Court remanded the the Act. These three antelope species the scimitar-horned oryx have been rule to the Service for action consistent remain listed as endangered under the reported since the late 1980s. Remnant with its opinion.

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To comply with the Court’s order, the Summary of Comments and Our more harm than good. Two other Service published a proposed rule on Responses commenters encouraged the Service to July 7, 2011 (76 FR 39804), to remove In our proposed rule (July 7, 2011; 76 consider all avenues and remedies and the regulation at 50 CFR 17.21(h), thus FR 39804), we asked interested parties the effects they would have on the three eliminating the exclusion for U.S. to submit comments or suggestions antelope species. Our Response: The Service agrees that captive-bred scimitar-horned oryx, regarding the proposal to eliminate the the Court’s finding left us no options but addax, and dama gazelle from certain regulation at 50 CFR 17.21(h). The to rescind the current regulation at 50 prohibitions under the Act. Under the comment period for the proposed rule CFR 17.21(h). While the Service agrees proposed rule, any person who intend lasted for 30 days, ending August 8, that the Court did not mandate us to to conduct an otherwise prohibited 2011. We received 93 individual apply the same permitting scheme comments during the comment period. activity with U.S. captive-bred scimitar- established in 50 CFR 17.22 or the Comments were received from 2 State horned oryx, addax, or dama gazelle registration process identified in 50 CFR would need to qualify for an exemption agencies; 8 nongovernment 17.21(g), we could find no alternative or obtain authorization for such activity organizations, several of which approach other than existing statutory under the Act and applicable commented jointly; and 86 individuals, and regulatory procedures. Further, no regulations. most of whom either own ranches that commenters provided reasonable currently maintain animals of the three Removal of 50 CFR 17.21(h) alternatives to this approach (see Issue antelope species or are associated with 15, below). Consequently, with the such ranches. Many of the comments Under 50 CFR 17.21(h), individuals elimination of the regulation at 50 CFR did not specifically address the reason carrying out certain activities that 17.21(h), anyone wishing to carry out for which the proposal was made—that otherwise prohibited activities would would contribute to increasing or the exclusion violated the provisions of sustaining the captive numbers of the need to either apply for a permit (50 section 10(c) of the Act—nor did they CFR 17.22) or for the captive-bred three species were not required to notify present alternatives to the proposal to the Service of those activities involving wildlife registration (50 CFR 17.21(g)). eliminate the regulation; instead the The Service disagrees with the first these species, provided that those comments focused either on the impact commenter’s statement that, because the activities met the criteria established to the ranches if the regulation were Court did not rule on the merits of within these regulations. As the Service eliminated or on the listing of the whether the ranches were meeting the was not notified of any proposed species. Of the commenters, six enhancement criteria, the Court found activities, it could not in turn provide supported the proposal to eliminate the that these ranches provide the public an opportunity to comment regulation, and 90 opposed the proposal enhancement. The Court did not rule on those proposed activities. By either directly or indirectly. Comments one way or another on the merits of the eliminating the regulation at 50 CFR pertained to several key issues. These plaintiffs’ case regarding the actions 17.21(h) and requiring individuals to issues, and our responses, are discussed conducted on ranches under sections submit an application, as described in below. 10(c) or 10(d). In addition, under 50 50 CFR 17.21(g) or 17.22, requesting Issue 1: One commenter stated that CFR 17.21(g) and 17.22, we cannot authorization to carry out an otherwise sections 10(c) and 10(d) of the Act unquestionably accept that the activities prohibited activity, the Service can mandates the Service to provide the of a ranch with these species have a provide the public a 30-day period to required informational notice and an presumptive enhancement value and comment on any proposed activities. opportunity to comment, but that the therefore issue a permit or other The elimination of this regulation does Court did not require the Service to authorization ‘pro forma.’ Any applicant develop a new permitting scheme or not alter the current listing status of the requesting authorization to carry out an adopt current permitting processes to species, but does now require that the otherwise prohibited activity would provide notice and comment. The Service must grant individuals need to provide adequate information commenter went on to assert that the and documentation in their application authorization prior to their conducting Court, by finding that the plaintiffs did to show that they are meeting the any activity that is prohibited by the not have standing to challenge the issuance criteria established at 50 CFR Act. merits of whether the activities 17.21(g) or 17.22 before authorization The Service considered whether there conducted on the ranches met the can be granted by the Service. were alternative means to comply with criteria of section 10(a)(1)(A) of the Act, Issue 2: A large number (57) of the Court’s ruling without requiring had concluded that the ranches were, commenters expressed concern that ranches or other facilities holding these therefore, meeting the enhancement ranchers and other private holders of species to obtain a permit or other criteria and that any future permitting captive-bred scimitar-horned oryx, authorization. However, the Service was should be ‘pro forma.’ addax, and dama gazelle would no unable to identify an alternative other Three nongovernment organizations longer have an economic incentive to than the currently established concluded that the Court gave the manage the species if the exclusions regulations at 50 CFR 17.21(g) and Service no options but to vacate the were removed. Some commenters went further in stating that the removal of the 17.22—providing for the registration of regulation and apply the same permitting scheme currently outlined in exclusion would have substantial captive-bred wildlife or issuance of a 50 CFR 17.22 for these three antelope. negative economic impacts on game permit—that would provide the public One commenter stated that, by farms and related support industries, an opportunity to comment on proposed choosing to impose a permit system local economies, and jobs. Two activities being carried out with these instead of some other means of commenters stated that because most species. In addition, the Service did not addressing the Court’s finding, the businesses involved with these species receive any comments or suggestions Service failed to consider other options. are extremely small, often with only one from the public that presented a viable The commenter expressed the opinion or two employees, the proposed alternative (see Summary of Comments that using the current permitting regulation would be a significant burden and Our Responses, below). process would cause the three species and that any pressure that affects local

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business and citizens may have a major activities that may be authorized. commenters were concerned that impact on the viability of local Provided that the ranch, zoo, or removal of the exclusion that allows economies. One commenter stated that individual is carrying out activities that breeding and hunting of these animals the review and statistical findings of the benefit or enhance the propagation or without a permit would impede private annual economic impact of removing survival of the species, as was captive propagation of these species. the exclusion was ‘‘abstract at best, and previously required under the They expressed the view that the incomplete, misleading, and regulation at 50 CFR 17.21(h), otherwise requirement of obtaining authorization irresponsible to reality.’’ This prohibited activities, including limited or permits before carrying out commenter stated that the use of $100 hunting for herd management purposes, previously exempted activities would million by the Office of Management can be authorized. Ranches may need to cause a significant loss of critical and Budget (OMB) as the benchmark in redesign their marketing efforts, but this genetic diversity because private evaluating the merits of the economic change to the regulations should not holders, who retain most of the captive impact of the consequences associated stop ranches from conducting activities animals of these three species in the with permit requirements has no that were previously authorized under United States, might dispose of their quantitative support. The commenter 50 CFR 17.21(h). current stock. Captive groups of these felt that OMB could not accurately The Service acknowledges the species would shrink, and, potentially, quantify the financial impact of lifting commenter’s concern regarding the the species would be allowed to go the permit requirements for these three benchmark in evaluating the merits of extinct. In addition, they stated that the species. Several commenters said that the economic impact on ranches. exclusion allows greater numbers of the Service should keep the exclusion However, the use of $100 million is set these animals to be bred than the for captive-bred individuals for the very by Executive Order and the Small numbers bred by zoos, wildlife parks, reason that these species are doing fine Business Regulatory Enforcement and individuals alone, thus maintaining without any further government Fairness Act. The Service does not have a larger and more diverse gene pool, regulation. the ability to establish an alternative which allows some ranchers to Our Response: The elimination of this benchmark or how the review is contribute selected animals for possible regulation should not result in lower conducted. reintroduction to their natural economic incentives or a negative Issue 3: Two commenters wrote that environment. economic impact, provided that the the removal of the exclusion leaves the Our Response: The Service does not ranches were carrying out activities that Service with two possible solutions: believe that ranchers or other holders of were approved under the regulation. either the species is allowed to go these species that are working for the The regulation at 50 CFR 17.21(h) extinct or the U.S. Government provides conservation of the species will reduce authorized certain otherwise prohibited subsidies for a mandated conservation or eliminate their herds just because a activities without a permit for plan. The commenters felt that both of permit or other authorization will now individuals or ranches that carried out these options have negative outcomes— be required. Ranches that currently have activities that contributed to increasing one results in extinction of the species other endangered hoofstock already or sustaining captive numbers of these and the other increases government obtain permits for the same activities species. Further, the regulation required spending at a time when cutbacks are with those other species. The Act does each person or ranch claiming the needed. not regulate possession or purely benefits of the exclusion to maintain Our Response: The Service disagrees intrastate activities (with the exception accurate records of activities, including that the removal of this regulation will of take). Provided that a ranch was births, deaths, and transfers of result in either the extinction of the legally carrying out activities that were specimens. These same activities could species or the need to subsidize authorized under 50 CFR 17.21(h) be authorized under 50 CFR 17.21(g) or conservation efforts. Many facilities and before the elimination of that regulation, 17.22. Thus, there should be little or no ranches that currently maintain these the ranch should be able to continue reduction of allowable activities. With species will continue to do so, those activities under a permit or the elimination of 50 CFR 17.21(h), regardless of whether or not they are registration. There should be no ranches, zoos, and private individuals exempt from prohibitions under the Act. reduction in herds that were actually that maintain these three species will We are confident of this because a being used for conservation purposes. need to submit an application, number of similar species, also bred and It is possible, however, that the including a nominal application fee, in maintained in U.S. ranches, are subject number of ranches or private order to receive authorization for to the same permitting and registration individuals that currently maintain activities that previously could have requirements we will apply to the three these species could reduce the size of been conducted without a permit. We antelope species when 50 CFR 17.21(h) their herds or remove them from their do not believe, however, that the is removed (see DATES, above). The property under the belief that permitting process, including the species will not become extinct due to maintaining them would be an application fee or possible submission our actions under this rulemaking. economic burden. This reduction in the of records that should already be Further, the Service cannot provide number of herds should not maintained, will result in any subsidies to private ranches or facilities significantly influence the genetics of significant financial burden. This is to continue to maintain these species. the remaining herds, if they are being particularly so given that the Service We are confident, however, that such properly maintained. has made efforts in recent years to subsidies are not necessary and that Issue 5: One commenter stated that streamline the permitting process and many, if not all, operations will the numbers of animals maintained on issue permits to authorize multiple continue to maintain these species and ranches given in the proposed rule were activities for an extended period of time. provide an ongoing conservation benefit incorrectly low and that the Exotic The Service does recognize, however, to the species. Wildlife Association (EWA) has that there may be an economic impact Issue 4: Thirty-two commenters numbers that are more accurate. if people believe that the elimination of pointed out that intensive wildlife Our Response: The numbers this regulation changes the status of the management by U.S. ranchers is the identified in the proposed rule were species and therefore creates a change in reason the species exist today. These estimates based on the information

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available at the time the rule was animals that can be used as a source of Issue 9: Three commenters thought drafted. The Service is aware that EWA stock for reintroduction programs in the the Federal government should not has conducted surveys that indicated future, if such actions are feasible and regulate the harvest of animals that are the actual numbers might be higher. beneficial to the long-term survival of not native to the United States. They felt This does not affect what the Service is the species, as has been done for a that no permits should be needed to legally required to do given the Court number of other species. provide a sustainable environment order. We have incorporated EWA’s Issue 8: Numerous commenters raised where exotic species can thrive and estimates into this final rule (see questions about the current listing of the increase in numbers. The Texas Background, above). three species as endangered under the Department of Agriculture (DOA) Issue 6: The Association of Zoos and Act. One commenter said that the U.S. believes that ‘‘regulating the domestic Aquariums (AZA) expressed concern captive-bred animals of these three management of these animals is beyond that the elimination of the exclusion species of exotic antelopes should never the fundamental intent of the from prohibited activities for the captive have been included in the listing of the Endangered Species Act.’’ animals of these three species would species as endangered, because, in their Our Response: The Service disagrees. undermine their goal of maintaining opinion, the Act was not meant to cover The Act specifically covers any species genetic diversity. They expressed privately owned animals. Three that is listed as endangered or concerns that their members’ efforts in commenters suggested that the Service threatened, whether it is native to the moving listed species have been remove these species from the List of United States or non-native and whether hampered by permit delays of 6 to 9 Endangered and Threatened Wildlife at it is in captivity or in the wild. The months while enhancement findings are 50 CFR 17.11(h). Two commenters prohibitions apply to all listed being made, which is problematic recommended that the Service not specimens. But the Act’s prohibitions because there are very few in situ finalize any permit scheme for these are limited. Therefore, no permits are conservation programs available for three species until the Service has fully required to breed or maintain a listed these species. exhausted all options for altering the species. It is only when an individual Our Response: The Service is unclear current endangered species listing status attempts to carry out an activity that is on how the removal of 50 CFR 17.21(h) for U.S. captive herds, making permits otherwise prohibited under the Act, will affect the ability of AZA facilities unnecessary for these captive animals. such as transport in interstate or foreign to maintain the genetic diversity of the One commenter argued that to eliminate commerce in the course of a commercial captive populations or to move animals this exclusion without removing these activity, import or export, or take, that as part of this effort. Barring any failure species from the List of Endangered and the Service has a mandate to regulate on the part of the applicant to meet the Threatened Wildlife would violate the the activity. criteria for permit issuance, in only President’s January 18, 2011, Executive Issue 10: The Texas Parks & Wildlife limited cases has the permitting process Order (E.O. 13563), which requires Department (TPW) expressed concern for AZA facilities exceeded 120 days. Federal agencies to ‘‘identify and about the possible unintended Except for the import or export of consider regulatory approaches that consequences of the proposed rule. If animals, no permits will be required for reduce burdens and maintain flexibility the exclusion is revoked, the TPW is zoos to move animals among and freedom of choice for the public.’’ concerned that some owners may institutions strictly for population Our Response: The proposed rule release animals onto previously management purposes if there is no only addressed the Court’s finding that unoccupied range, leading to commercial activity involved. the regulations at 50 CFR 17.21(h) uncontrolled population growth, Issue 7: Three nongovernmental violate section 10(c) of the Act. damage to native plant communities, organizations, in expressing their Discussion of the listing status of these and other potentially negative impacts support for the proposed rule, felt that species, including changing that status, on native habitat. Another commenter rescinding the regulation would further is outside the scope of this rulemaking. expressed the same concern about the avoid a precedent that commercial Two petitions have been submitted to huge herds of free-ranging exotics that exploitation is automatically authorized the Service to request reconsideration of have escaped from captivity throughout merely on the theory that captive the listing status of these species, but Texas, and believed it was important breeding, in and of itself, will enhance the Service must complete this that private landowners be able to the survival of listed species. rulemaking now in order to comply continue to control and manage exotic Our Response: While the Service does with the Court order; we cannot delay animals in order to prevent destruction believe that captive breeding can this action until the time when the of vegetation and degradation of wild provide a significant benefit to petitions have been fully addressed. habitats by large numbers of native and endangered species, such benefits can In addition to taking this action as exotic ungulates. The commenter only be realized when the breeding necessary to comply with the Court’s thought it was, ‘‘critical that the state be program is scientifically based and order, the Service does not agree that provided the option for exclusive conducted in a manner that contributes eliminating 50 CFR 17.21(h) will violate jurisdiction over the management of to the continued survival of the species. the January 18, 2011, Executive Order. non-native, non-indigenous exotic pig, This was the basis for establishing the In fact, the Executive Order calls on goat, sheep, elk, deer, antelope, and regulation at 50 CFR 17.21(h). However, Federal agencies to develop regulations gazelle species within the borders of breeding just to breed, without adequate that ‘‘allow for public participation and that State.’’ The commenter felt that this attention to genetic composition and an open exchange of ideas.’’ While the would be consistent with the public demographics of the breeding elimination of 50 CFR 17.21(h) has been trust doctrine, under which the States population, may not provide a clear perceived as having a significant are entrusted with regulatory oversight conservation benefit to an endangered economic impact on some ranches, it of native wildlife resources and impacts species. Even absent 50 CFR 17.21(h), has been determined that the benefits of of native wildlife. ranches, zoos, and private individuals this action justify its costs by impose the Our Response: The Service does not holding these three species should be least burden on society and identifying expect this rule to result in the able to continue to maintain viable, specify avenues for carrying out intentional release of significant well-managed, captive groups of otherwise prohibited activities. numbers of the three species into

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previously unoccupied areas of the compensate current owners for any professional wildlife management, and United States. However, the Service perceived loss of revenue. Such demonstrated success in preserving does recognize that there are free- compensation or assuming custody of these species. ranging herds of exotic species in Texas these species is not within the Service’s Our Response: The removal of the and other States that have a negative authority. Further, the Service disagrees regulation at 50 CFR 17.21(h) is based impact on native vegetation and that the elimination of 50 CFR 17.21(h) on the Court decision that the regulation wildlife. The Service also supports constitutes a taking, because it does not is in violation of section 10(c) of the efforts carried out by various States to deprive the owners of these animals Act. The Service could see no other control these exotic species to reduce from continuing to derive an economic option than to remove this regulation to their impacts on native ecosystems. benefit from them. This rule is not a ensure that we complied with the Court There are a number of exotic ungulates taking of property because individuals order. This action is not a reflection of listed under the Act as either can obtain authorization for the same the Service’s position on hunting or endangered or threatened that are otherwise prohibited activities with successes that have been achieved with commonly held on ranches in Texas and these three endangered antelopes when the three antelope species or any other other States. We encourage cooperation issuance criteria are met as they had species. between State wildlife agencies and under 50 CFR 17.21(h). Provided that a Issue 14: Two commenters thought ranches that maintain exotic species to rancher meets the criteria for obtaining that current conditions within the develop best management practices to a permit, which are similar or identical native range of these species are not reduce the escape of exotic species. to the criteria established at 50 CFR conducive to reintroduction. They Ongoing efforts are needed to coordinate 17.21(h) for carrying out otherwise expressed the opinion that few Federal and State efforts to control the prohibited activities, the rancher will be governments of the native countries spread of these listed exotics onto able to obtain a permit or authorization want to protect or increase the numbers pristine areas where native wildlife and to carry out the same activities that the of these species and stated that the vegetation could be affected. rancher currently conducts. This rule repatriation project of the Second Ark Through the Act, Congress gave does not infringe on any property rights Foundation and Exotic Wildlife jurisdiction to determine which species or adversely affect the free market when Association has met with many qualify as endangered or threatened, activities are conducted in a manner roadblocks. and responsibility for their protection consistent with the requirements of the Our Response: The Service and recovery, to the Service and the Act. understands that many factors National Marine Fisheries Service. Issue 12: A number of commenters contribute to the successful States are essential partners in raised the issue of hunting of these reintroduction of a species to its native endangered species conservation, but species. Two commenters said that the range. We acknowledge that the Second only the Service can authorize activities Service should protect endangered Ark Foundation and Exotic Wildlife with these species that would be exotic wildlife from hunting and further Association have been confronted with otherwise prohibited, and nothing killing. Three other commenters stated obstacles to providing specimens for under the public trust doctrine affects that hunters have saved most of these reintroduction, and we understand that this legal regime. animals from decline and feel that such reintroduction programs can often Issue 11: One commenter pointed out hunting these animals should not be be difficult in developing countries for that the Service has no plan or way of viewed as a threat to species numbers. any species. Currently, we are aware taking custody of or caring for any of the It is their supposition that the steady that there are only a limited number of unwanted animals resulting from the hunting demand for these species has in situ conservation programs available elimination of the exclusion at 50 CFR ensured the continued propagation and for these species, but that does not affect 17.21(h). The commenter also felt that survival of the species. They pointed to how we must apply the requirements of the Service or nongovernment the conservation success story of North the Act to their captive animals in the organizations that support the American elk, white-tailed deer, United States. elimination of the regulation should waterfowl, and turkeys as evidence that Issue 15: Many commenters expressed provide a plan to reimburse or their survival is due in large part to the concerns that the current permitting compensate the owners of these animals American hunter. process does not work well and is a for their lost revenue and investment if Our Response: The Service has stated disincentive to ranching operations. the regulation is eliminated. Another on numerous occasions that Two commenters thought the Service commenter questioned whether taking scientifically based hunting programs should create an alternative permitting away the incentive for landowners to can provide a benefit to the long-term process that includes an online propagate these species was in fact a survival of a species. The American submission process to register herds and case of ‘‘de facto taking.’’ A third hunter has clearly provided benefits to obtain take permits electronically, commenter felt it would be a taking if many species. Hunting of exotic species develop the ability to receive electronic the final rule impedes his ability to have within the United States can also benefit reports, develop scientifically based cull economic benefit from maintaining the survival of the species involved if requirements, and allocate permit herds of these antelopes. Two other the hunting program and other activities application fees to in situ conservation commenters did not think the with the species are carried out in a efforts. One commenter suggested that government had the right to control manner that contributes to increasing or the Service implement a herd inventory personal property. Finally, another sustaining the number of animals in monitoring program to get additional commenter said that the proposed captivity or to potential reintroduction information for making permitting elimination of 50 CFR 17.21(h) infringes to range countries. decisions. Several commenters provided on the free market and private property Issue 13: Several commenters specific examples of how to improve the rights. suggested that the removal of the permitting process to reduce Our Response: The commenter is exclusion at 50 CFR 17.21(h) is not unnecessary burdens in the interest of correct that the Service has no plans to based on logic, but rather on political the species. Suggestions included take custody of any animals currently opinions and personal philosophies to combining the application processes for held on private property or to end all hunting over sound science, registration under the captive wildlife

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registration (50 CFR 17.21(g)) and take how to improve our current permitting definition within the regulations, is permits (50 CFR 17.22) or revising the process to contact the Service’s Division outside the scope of this rulemaking. applications to be clearer. Other of Management Authority, Branch of However, the Act specifically covers comments included moving to an Permits (see ADDRESSES, above). any species that is listed as endangered electronic application process, making Issue 16: Two commenters or threatened, whether it is in captivity, permits valid for a longer period of time, recommended that the public comment including those that are captive-bred or and reviewing and processing period for permit applications, which is wild. The prohibitions apply to all applications in a more timely manner. currently 30 days, should be eliminated, listed specimens. Changes to the One commenter, while believing no or reduced to no more than 14 days. In definition would not be a basis for regulation is needed, could accept some addition, they suggested only comments exempting privately raised animals. form of moderately priced, multi-year offered by knowledgeable persons that Consistent with the Court’s ruling that permit that requires limited annual actually own or deal with the species the regulation at 50 CFR 17.21(h) is in report data. One commenter said should be considered. violation of section 10(c) of the Act and expectations related to transfers Our Response: Section 10(c) of the following consideration of all between facilities, including breeding- Act specifies that the comment period comments, the Service is eliminating only and hunting-only operations, must be 30 days. Because the 30-day the regulation at 50 CFR 17.21(h). When be well defined in order to provide comment period is set by statute, we the final rule takes effect (see DATES, landowners with a transparent process. cannot shorten it by regulation. In above), individuals who intend to carry Two commenters suggested working addition, the Act states that comments out otherwise prohibited activities will with a State’s wildlife authority to are welcome from any interested party, need to have authorization either under regulate and oversee the permitting and therefore all comments that are 50 CFR 17.21(g) or 17.22. process to increase cooperation with received during an open comment Required Determinations landowners. The AZA suggested that period are considered . there needs to be a provision that allows Issue 17: One commenter suggested Regulatory Planning and Review— AZA institutions to engage in time- that any new regulations should include Executive Order 12866: The Office of sensitive international movement of an anti-harassment provision with a Management and Budget (OMB) has these animals for noncommercial $10,000 fine for those who use the determined that this rule is not purposes, such as breeding loans or information made available through the significant under Executive Order reintroduction, without having to obtain application process to directly or 12866. OMB bases its determination additional permits. indirectly harass or otherwise interfere upon the following four criteria: Several commenters expressed with the applicant’s operation or (a) Whether the rule will have an opinions on what would constitute business. Harassment should include annual effect of $100 million or more on enhancement or furthering the the use of deception or the economy or adversely affect an conservation of the species so that misrepresentation to get access to the economic sector, productivity, jobs, the permits or authorizations could be applicant’s private operations. environment, or other units of granted. Three nongovernment Our Response: The Service does not government. organizations were concerned that the have the authority to include an anti- (b) Whether the rule will create existing permitting system would harassment provision in our regulations inconsistencies with other Federal undermine the conservation of these under the Act. There are other legal agencies’ actions. antelope species due to questions on remedies to address harassment. (c) Whether the rule will materially whether or not current permits are being Information that is made available affect entitlements, grants, user fees, issued in accordance with the Act. One through the public comment process is loan programs, or the rights and commenter suggested that permits must intended to provide the public an obligations of their recipients. provide flexibility in harvest allowances understanding of the activities being (d) Whether the rule raises novel legal to allow managers to maintain balanced proposed. It is not intended to provide or policy issues. numbers relative to habitat carrying anyone with the opportunity to harass Regulatory Flexibility Act: Under the capacities. Another commenter directly or indirectly, or to interfere in Regulatory Flexibility Act (as amended recommended that the permit address lawfully conducted activities. by the Small Business Regulatory additional harvest protocols and Issue 18: One commenter Enforcement Fairness Act (SBREFA) of emergency response for when properties recommended that the definition of 1996), whenever a Federal agency is enter severe, extreme, or exceptional ‘‘captive-bred’’ be amended, ‘‘to reflect required to publish a notice of drought. only those animals and genetic rulemaking for any proposed or final Our Response: These comments are materials designated for potential rule, it must prepare and make available outside the scope of this rulemaking reintroduction under the direction of for public comment a regulatory because they do not address the Court’s scientists of the Association of Zoos and flexibility analysis that describes the ruling that 50 CFR 17.21(h) violates Aquariums (AZA) institutions for all effect of the rule on small entities (i.e., section 10(c) of the Act and the non-native, non-indigenous exotic pig, small businesses, small organizations, rescission of 17.21(h). Nevertheless, the goat, sheep, elk, deer, antelope and and small government jurisdictions) (5 Service appreciates the comments and gazelle species.’’ The commenter U.S.C. 601 et seq.). However, no will consider them as we develop ways suggested that this could be used as a regulatory flexibility analysis is required to improve the efficiency and basis to exempt privately raised animals if the head of an agency certifies that the effectiveness of our permitting process. on Texas ranches from any rules rule will not have a significant We are currently working on certain defining ‘‘captive-bred’’ animals. economic impact on a substantial improvements, such as the development Our Response: The proposed rule number of small entities. Thus, for a of electronic applications and more only addressed the Court’s finding that regulatory flexibility analysis to be timely review processes. We are the regulations at 50 CFR 17.21(h) required, impacts must exceed a considering other efficiency violate section 10(c) of the Act. threshold for ‘‘significant impact’’ and a improvements as well. We encourage Discussion of the definition of ‘‘captive- threshold for a ‘‘substantial number of anyone who has recommendations on bred’’, including changing that small entities.’’ See 5 U.S.C. 605(b).

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SBREFA amended the Regulatory fraction of these are sold for breeding or Federalism: This revision to part 17 Flexibility Act to require Federal as trophies annually. Addax and dama does not contain significant Federalism agencies to provide a statement of the gazelle are fewer in number (several implications. A federalism impact factual basis for certifying that a rule hundred each), but more valuable as summary statement under Executive will not have a significant economic both breeding stock and trophies, with Order 13132 is not required. impact on a substantial number of small values of mature animals up to $4,000– Civil Justice Reform: Under Executive entities. $6,000 each. Assuming 2,000 animals of Order 12988, the Office of the Solicitor The U.S. Small Business these two species at a value of $4,000 has determined that this rule does not Administration (SBA) defines a small each, the total value is $8,000,000, but unduly burden the judicial system and business as one with annual revenue or again the revenue generated by these meets the requirements of subsections employment that meets or is below an animals will be a fraction of this amount 3(a) and 3(b)(2) of the Order. established size standard. We expect because breeding operations will retain Paperwork Reduction Act: The Office that the majority of the entities involved a significant portion of their animals for of Management and Budget approved in taking, exporting, re-importing, and further breeding. Individuals and the information collection in part 17 selling in interstate or foreign commerce captive-breeding operations will now and assigned OMB Control Numbers of these three endangered antelopes are need to qualify for an exemption or 1018–0093 and 1018–0094. This rule considered small as defined by the SBA. obtain endangered species permits or does not contain any new information This rule requires individuals and other authorization to engage in certain collections or recordkeeping captive-breeding operations of the three otherwise prohibited activities. Permit requirements for which OMB approval endangered antelopes to apply for application fees of $100–$200 will be is required under the Paperwork authorization and pay an application fee required for anyone seeking permits, Reduction Act of 1995 (44 U.S.C. 3501 of $100 to $200 every 1–5 years, and we estimate up to 400 potential et seq.). We may not conduct or sponsor depending on the type of permit or permit applicants, although some and a person is not required to respond authorization, when conducting certain authorizations will remain in effect for to a collection of information unless it otherwise prohibited activities. While up to 5 years from one application. This displays a currently valid OMB control there are no accurate numbers of U.S. rule does not have a negative effect on number. facilities with these animals, estimates this part of the economy. It will affect National Environmental Policy Act range as high as about 400. It is not clear all businesses, whether large or small, (NEPA): The Service has determined if all of these facilities would be the same. There is not a conducting activities that would be that this rule is a regulatory change that disproportionate share of benefits for is administrative and legal in nature. otherwise prohibited under the Act; small or large businesses. however, if the total is 400 and they all The rescission of this rule responds to b. Will not cause a major increase in require permits for continuing activities a Court ruling finding that 50 CFR costs or prices for consumers; they have been conducting under the 17.21(h) violates section 10(c) of the Act individual industries; Federal, State, exclusion that is being rescinded, the and remanding to the agency for further tribal, or local government agencies; or maximum annual cost to all of them for proceedings consistent with its opinion. geographic regions. This rule will result obtaining permits would be about As such, the rule is categorically in a small increase in the number of $50,000–60,000. The regulatory change excluded from further NEPA review as is not major in scope and creates only applications for permits or other provided by 43 CFR 46.210(i) of the a modest financial or paperwork burden authorizations to conduct otherwise Department of the Interior’s on the affected members of the general prohibited activities with these three Implementation of the National public. endangered antelope species. Environmental Policy Act of 1969 We, therefore, certify that this rule c. Will not have significant adverse regulations (73 FR 61292; October 15, will not have a significant economic effects on competition, employment, 2008). No further documentation will be effect on a substantial number of small investment, productivity, innovation, or made. entities as defined under the Regulatory the ability of U.S.-based enterprises to Government-to-Government Flexibility Act (5 U.S.C. 601 et seq.). A compete with foreign-based enterprises. Relationship with Tribes: Under the regulatory flexibility analysis is not Unfunded Mandates Reform Act: President’s memorandum of April 29, required. Accordingly, a small entity Under the Unfunded Mandates Reform 1994, ‘‘Government-to-Government compliance guide is not required. Act (2 U.S.C. 1501, et seq.): Relations with Native American Tribal Small Business Regulatory a. This rule will not significantly or Governments’’ (59 FR 22951) and 512 Enforcement Fairness Act: This rule is uniquely affect small governments. A DM 2, we have evaluated possible not a major rule under 5 U.S.C. 804(2), small government agency plan is not effects on federally recognized Indian the Small Business Regulatory required. Tribes and have determined that there Enforcement Fairness Act. This rule: b. This rule will not produce a are no effects. a. Will not have an annual effect on Federal requirement of $100 million or Energy Supply, Distribution or Use: the economy of $100 million or more. greater in any year and is not a On May 18, 2001, the President issued This rule removes the regulation at 50 ‘‘significant regulatory action’’ under Executive Order 13211 on regulations CFR 17.21(h) that excludes U.S. captive- the Unfunded Mandates Reform Act. that significantly affect energy supply, bred scimitar-horned oryx, addax, and Takings: Under Executive Order distribution, and use. This rule does not dama gazelle from certain prohibitions 12630, this rule will not have significant significantly affect energy supplies, of the Act. Current estimates indicate takings implications. A takings distribution, and use. Therefore, this that about 12,000 to 13,000 of these implication assessment is not required. action is a not a significant energy animals occur in captive-breeding This rule does not have takings action, and no Statement of Energy operations in the United States. About implications because individuals can Effects is required. 11,000 are scimitar-horned oryx with a still obtain authorization for the same List of Subjects in 50 CFR Part 17 value of $1,500 to $3,000 each (based on otherwise prohibited activities with internet advertisements), for a total these three endangered antelopes when Endangered and threatened species, value of $33,000,000, although only a issuance criteria are met. Exports, Imports, Reporting and

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recordkeeping requirements, harvest specifications for GOA FOR FURTHER INFORMATION CONTACT: Transportation. groundfish, unless otherwise modified Obren Davis, (907) 586–7228. or superseded through publication of a Regulation Promulgation SUPPLEMENTARY INFORMATION: NMFS notification in the Federal Register. manages the groundfish fishery in the For the reasons given in the preamble, Comments must be received at the GOA exclusive economic zone we are amending part 17, subchapter B following address no later than 4:30 according to the Fishery Management of chapter I, title 50 of the Code of p.m., A.l.t., January 20, 2012. Plan for Groundfish of the Gulf of Federal Regulations, as follows: ADDRESSES: You may submit comments Alaska (FMP) prepared by the North PART 17—[AMENDED] on this document, identified by NOAA– Pacific Fishery Management Council NMFS–2011–0307, by any of the (Council) under authority of the ■ 1. The authority citation for part 17 following methods: Magnuson-Stevens Fishery continues to read as follows: • Electronic Submission: Submit all Conservation and Management Act. electronic public comments via the Regulations governing fishing by U.S. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. vessels in accordance with the FMP 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Federal e-Rulemaking Portal 625, 100 Stat. 3500; unless otherwise noted. www.regulations.gov. To submit appear at subpart H of 50 CFR part 600 comments via the e-Rulemaking Portal, and 50 CFR part 679. § 17.21 [Amended] first click the ‘‘submit a comment’’ icon, The final 2011 and 2012 harvest ■ 2. Amend § 17.21 by removing then enter NOAA–NMFS–2011–0307 in specifications for groundfish in the GOA paragraph (h). the keyword search. Locate the (76 FR 11111, March 1, 2011) and Pacific cod revision (76 FR 81860, Dated: December 27, 2011. document you wish to comment on from the resulting list and click on the December 29, 2011) set the 2012 pollock Eileen Sobeck, ‘‘Submit a Comment’’ icon on that line. TAC at 121,649 metric tons (mt) and the Acting Assistant Secretary for Fish and 2012 Pacific cod TAC at 58,650 mt in • Mail: Address written comments to Wildlife and Parks. the GOA. In December 2011, the Glenn Merrill, Assistant Regional [FR Doc. 2012–23 Filed 1–3–12; 11:15 am] Council recommended a 2012 pollock Administrator, Sustainable Fisheries BILLING CODE 4310–55–P TAC of 116,444 mt for the GOA, which Division, Alaska Region NMFS, Attn: is less than the 121,649 mt established Ellen Sebastian. Mail comments to P.O. by the final 2011 and 2012 GOA harvest Box 21668, Juneau, AK 99802–1668. DEPARTMENT OF COMMERCE specifications. The Council also • Fax: Address written comments to recommended a 2012 Pacific cod TAC National Oceanic and Atmospheric Glenn Merrill, Assistant Regional of 65,700 mt for the GOA, which is more Administration Administrator, Sustainable Fisheries than the 58,650 mt established by the Division, Alaska Region NMFS, Attn: final 2011 and 2012 harvest 50 CFR Part 679 Ellen Sebastian. Fax comments to (907) specifications for groundfish in the [Docket No. 101126522–0640–02] 586–7557. GOA. The Council’s recommended 2012 • Hand Delivery to the Federal TACs, and the area and seasonal RIN 0648–XA917 Building: Address written comments to apportionments, are based on the Stock Fisheries of the Exclusive Economic Glenn Merrill, Assistant Regional Assessment and Fishery Evaluation Zone Off Alaska; Inseason Adjustment Administrator, Sustainable Fisheries report (SAFE), dated November 2011, to the 2012 Gulf of Alaska Pollock and Division, Alaska Region NMFS, Attn: which NMFS has determined is the best Pacific Cod Total Allowable Catch Ellen Sebastian. Deliver comments to available scientific information for these Amounts 709 West 9th Street, Room 420A, fisheries. Juneau, AK. Steller sea lions occur in the same AGENCY: National Marine Fisheries Instructions: Comments must be location as the pollock and Pacific cod Service (NMFS), National Oceanic and submitted by one of the above methods fisheries and are listed as endangered Atmospheric Administration (NOAA), to ensure that the comments are under the Endangered Species Act Commerce. received, documented, and considered (ESA). Pollock and Pacific cod are a ACTION: Temporary rule; inseason by NMFS. Comments sent by any other principal prey species for Steller sea adjustment; request for comments. method, to any other address or lions in the GOA. The seasonal individual, or received after the end of apportionment of pollock and Pacific SUMMARY: NMFS is adjusting the 2012 the comment period, may not be cod harvest is necessary to ensure the total allowable catch (TAC) amounts for considered. All comments received are groundfish fisheries are not likely to the Gulf of Alaska (GOA) pollock and a part of the public record and will cause jeopardy of extinction or adverse Pacific cod fisheries. This action is generally be posted for public viewing modification of critical habitat for necessary because NMFS has on www.regulations.gov without change. Steller sea lions. The regulations at determined these TACs are incorrectly All personal identifying information § 679.20(a)(5)(iv) specify how the specified, and will ensure the GOA (e.g., name, address) submitted pollock TAC will be apportioned. The pollock and Pacific cod TACs are the voluntarily by the sender will be regulations at § 679.20(a)(6)(ii) and appropriate amounts based on the best publicly accessible. Do not submit § 679.20(a)(12)(i) specify how the Pacific available scientific information for confidential business information, or cod TAC shall be apportioned. pollock and Pacific cod in the GOA. otherwise sensitive or protected In accordance with § 679.25(a)(1)(iii) This action is consistent with the goals information. NMFS will accept and (a)(2)(i)(B), the Administrator, and objectives of the Fishery anonymous comments (enter ‘‘N/A’’ in Alaska Region, NMFS (Regional Management Plan for Groundfish of the the required fields if you wish to remain Administrator), has determined that, Gulf of Alaska. anonymous). Attachments to electronic based on the November 2011 SAFE DATES: Effective 1200 hrs, Alaska local comments will be accepted in Microsoft report for this fishery, the current GOA time (A.l.t.), January 5, 2012, until the Word or Excel, WordPerfect, or Adobe pollock and Pacific cod TACs are effective date of the final 2012 and 2013 PDF file formats only. incorrectly specified. Consequently,

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