58084 Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Proposed Rules

EPA has determined that this these species may be warranted. we are required to promptly conduct a proposed rule will not have Therefore, with the publication of this species status review, which we disproportionately high and adverse notice, we are initiating a review of the subsequently summarize in our 12- human health or environmental effects status of the U.S. captive members of month finding. on minority or low-income populations these species to determine if delisting Petition History because it increases the level of the U.S. captive specimens is warranted. environmental protection for all affected Based on the status review, we will On June 29, 2010, we received two populations without having any issue a 12-month finding on these two petitions, one dated June 29, 2010, from disproportionately high and adverse petitions, which will address whether Nancie Marzulla, submitted on behalf of human health or environmental effects the petitioned action is warranted, as the Exotic Wildlife Association (EWA), on any population, including any provided in section 4(b)(3)(B) of the Act. and one dated June 28, 2010, from Anna minority or low-income population. DATES: The findings announced in this M. Seidman submitted on behalf of This rule would provide fire document were made on September 19, Safari Club International and Safari suppression substitutes that have no 2012. Club International Foundation (SCI). The SCI petitioner requested that the ODP and low or no GWP. The avoided ADDRESSES: These findings are available ODS and GWP emissions would assist ‘‘U.S. captive populations’’ of three on the Internet at http:// antelope species, the scimitar-horned in restoring the stratospheric ozone www.regulations.gov at Docket Number layer, avoiding adverse climate impacts, oryx (Oryx dammah), dama gazelle FWS–HQ–ES–2012–0077. Supporting (Gazella dama), and addax (Addax and result in human health and documentation we used in preparing environmental benefits. nasomaculatus), be removed from the these findings is available for public Federal List of Endangered and List of Subjects in 40 CFR Part 82 inspection, by appointment, during Threatened Wildlife (List) under the normal business hours at the U.S. Fish Act. The SCI petitioner also requested Environmental protection, and Wildlife Service, 4401 North Fairfax Administrative practice and procedure, that we ‘‘correct the Endangered Species Drive, Room 420, Arlington, VA 22203. Act listing of scimitar-horned oryx, Air pollution control, Reporting and Please submit any new information, recordkeeping requirements. dama gazelle, and addax to specify that materials, comments, or questions only the populations in the portion of Dated: September 11, 2012. concerning these findings to the above their range outside of the United States Lisa P. Jackson, street address. are classified as endangered.’’ The EWA Administrator. FOR FURTHER INFORMATION CONTACT: petitioner requested that the ‘‘U.S. [FR Doc. 2012–23136 Filed 9–18–12; 8:45 am] Janine Van Norman, Chief, Branch of captive-bred populations’’ of these same BILLING CODE 6560–50–P Foreign Species, Endangered Species three species be removed from the List. Program, U.S. Fish and Wildlife Service, Both petitions indicated that removal or 4401 North Fairfax Drive, Room 420, delisting of the U.S. captive or U.S. DEPARTMENT OF THE INTERIOR Arlington, VA 22203; telephone 703– captive-bred individuals of these 358–2171. If you use a species was warranted pursuant to 50 Fish and Wildlife Service telecommunications device for the deaf CFR 424.11(d)(3) because the Service’s (TDD), call the Federal Information interpretation of the original data that 50 CFR Part 17 Relay Service (FIRS) at 800–877–8339. these species are endangered in their SUPPLEMENTARY INFORMATION: entirety was in error. EWA’s petition [Docket No. FWS–HQ–ES–2012–0077; contained an additional ground for 4500030115] Background recommending delisting of the ‘‘U.S. Endangered and Threatened Wildlife Section 4(b)(3)(A) of the Act (16 captive-bred populations’’ of these and Plants; 90-Day Findings on U.S.C. 1531 et seq.) requires that we species on the basis that these Petitions To Delist U.S. Captive make a finding on whether a petition to ‘‘populations’’ have recovered pursuant Populations of the Scimitar-Horned list, delist, or reclassify a species to 50 CFR 424.11(d)(2). Both petitions Oryx, Dama Gazelle, and Addax presents substantial scientific or clearly identified themselves as such commercial information indicating that and included the requisite identification AGENCY: Fish and Wildlife Service, the petitioned action may be warranted. information for the petitioners, as Interior. We are to base this finding on required by 50 CFR 424.14(a). information provided in the petition, ACTION: Notice of 90-day petition Previous Federal Action(s) findings and initiation of status review. supporting information submitted with the petition, and information otherwise Two subspecies of the dama gazelle, SUMMARY: We, the U.S. Fish and available in our files. To the maximum the Mhorr gazelle (Gazella dama mhorr) Wildlife Service (‘‘Service’’), announce extent practicable, we are to make this and Rio de Oro dama gazelle (G. d. 90-day findings on two petitions to finding within 90 days of our receipt of lozanoi) were listed as endangered in remove the U.S. captive-bred and U.S. the petition, and publish our notice of their entirety, i.e. wherever found, on captive populations of three antelope the finding promptly in the Federal June 2, 1970 (35 FR 8491). On species, the scimitar-horned oryx (Oryx Register. November 5, 1991, we published in the dammah), dama gazelle (Gazella dama), Our standard for substantial scientific Federal Register (56 FR 56491) a and addax (Addax nasomaculatus), or commercial information within the proposed rule to list the scimitar-horned from the List of Endangered and Code of Federal Regulations (CFR) with oryx, addax, and dama gazelle as Threatened Wildlife as determined regard to a 90-day petition finding is endangered in their entireties. We re- under the Endangered Species Act of ‘‘that amount of information that would opened the comment period on the 1973, as amended (Act or ESA). Based lead a reasonable person to believe that proposed rule to request information on our review, we find that the petitions the measure proposed in the petition and comments from the public on June present substantial information may be warranted’’ (50 CFR 424.14(b)). 8, 1992 (57 FR 24220), July 24, 2003 (68 indicating that delisting the U.S. captive If we find that substantial scientific or FR 43706), and again on November 26, animals or U.S. captive-bred members of commercial information was presented, 2003 (68 FR 66395).

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On February 1, 2005 (70 FR 5117), we the regulation at 50 CFR 17.21(h), thus As part of planned reintroduction announced a proposed rule and notice eliminating the exclusion for U.S. projects, captive-bred individuals of the of availability of a draft environmental captive-bred scimitar-horned oryx, three antelope species have been assessment to add new regulations addax, and dama gazelle from certain released into fenced, protected areas in under the Act to govern certain prohibitions under the Act. Under the Tunisia, Morocco, and Senegal. These activities with U.S. captive-bred proposed rule, any person who intended animals may be released into the wild scimitar-horned oryx, addax, and dama to conduct an otherwise prohibited when adequately protected habitat is gazelle, should they become listed as activity with U.S. captive-bred scimitar- available. However, continued habitat endangered. The proposed rule covered horned oryx, addax, or dama gazelle loss and wanton killing have made U.S. captive-bred live animals, would need to qualify for an exemption reintroduction nonviable in most cases including embryos and gametes, and or obtain authorization for such activity (70 FR 52319). sport-hunted trophies, and would under the Act and applicable For more information on the scimitar- authorize, under certain conditions, regulations. On January 5, 2012, we horned oryx, dama gazelle, and addax, certain otherwise prohibited activities published a final rule (77 FR 431) see our final listing rule for these that enhance the propagation or survival removing the regulation at 50 CFR species (70 FR 52319; September 2, of the species. The ‘‘otherwise 17.21(h). 2005). prohibited activities’’ were take; export Species Information Standards for Evaluating Information or re-import; delivery, receipt, carrying, in the Petitions transport, or shipment in interstate or The scimitar-horned oryx, dama foreign commerce, in the course of a gazelle, and addax are each native to Section 4 of the Act (16 U.S.C. 1533) commercial activity; or sale or offering several countries in northern Africa. and its implementing regulations at 50 for sale in interstate or foreign Although previously widespread in the CFR Part 424 set forth the procedures commerce. In the proposed rule, we region, populations have been greatly for adding a species to, or removing a found that the scimitar-horned oryx, reduced primarily as a result of habitat species from, the Federal Lists of addax, and dama gazelle are dependent loss, uncontrolled killing, and the Endangered and Threatened Wildlife on captive breeding and activities inadequacy of regulatory mechanisms and Plants. A species may be associated with captive breeding for (70 FR 52319). Estimated numbers of determined to be an endangered or their conservation, and that activities individuals in the wild are extremely threatened species due to one or more low. The oryx is believed to be associated with captive breeding within of the five factors described in section extirpated in the wild, the addax the United States enhance the 4(a)(1) of the Act: numbers fewer than 300, and the dama propagation or survival of these species. (A) The present or threatened gazelle numbers fewer than 500. All We accepted comments on this destruction, modification, or three species are listed in Appendix I of proposed rule until April 4, 2005. curtailment of its habitat or range; the Convention on International Trade (B) Overutilization for commercial, On September 2, 2005, we published in Endangered Species of Wild Fauna recreational, scientific, or educational a final rule listing the scimitar-horned and Flora (CITES). The International purposes; oryx, addax, and dama gazelle as Union for Conservation of Nature endangered in their entirety (70 FR (IUCN) Red List categorizes the oryx as (C) Disease or predation; 52319). On September 2, 2005, we also ‘‘extinct in the wild,’’ and the dama (D) The inadequacy of existing added a new regulation (70 FR 52310) gazelle and addax as ‘‘critically regulatory mechanisms; or at 50 CFR 17.21(h) that excluded the endangered’’ (IUCN Species Survival (E) Other natural or manmade factors U.S. captive-bred animals of these three Commission (SSC) Antelope Specialist affecting its continued existence. species, as described above, from certain Group 2008; Newby and Wacher 2008 in We must consider these same five prohibitions under the Act. The IUCN Redlist 2012; Newby et al. 2008 in factors in delisting a species as they promulgation of the regulation at 50 IUCN Redlist 2012). All three species relate to the definitions of endangered CFR 17.21(h) was challenged as are listed under the Act as endangered and threatened species. We may delist violating section 10 of the Act and the in their entireties (see 50 CFR 17.11(h)). a species according to 50 CFR 424.11(d) National Environmental Policy Act (42 The Sahara Sahel Interest Group only if the best available scientific and U.S.C. 4321 et seq.), first in both the (SSIG) estimates that there are commercial data indicate that the U.S. District Court for the Northern approximately 4,000 to 5,000 scimitar- species is neither endangered nor District of California and the U.S. horned oryx, 1,500 addax, and 750 threatened for the following reasons: District Court for the District of dama gazelle in captivity worldwide (70 (1) The species is extinct; Columbia, but then transferred and FR 52319). These include at least 1,550 (2) The species has recovered and is consolidated in the U.S. District Court scimitar-horned oryx and 600 addax no longer endangered or threatened; or for the District of Columbia (see Friends held in managed breeding programs in (3) The best scientific or commercial of Animals v. Ken Salazar and Cary v. several countries around the world. We data available at the time the species Gould, 626 F. Supp. 2d 102 (D.D.C. are unaware of information indicating was classified, or the interpretation of 2009)). The Court found that the rule for numbers of dama gazelle currently held such data, were in error. the three antelope species violated in managed breeding programs. In In considering a petition under section 10(c) of the Act by not providing addition to individuals of these species section 4(b)(3) of the Act, we generally the public notice of and an opportunity held in managed breeding programs, evaluate the information presented in to comment on activities being carried captive individuals are held in private the petition, along with information out with U.S. captive specimens of these collections and on private game farms available in our files, on threats to the three antelope species. On June 22, and ranches in the United States and the species. But in this instance, first we 2009, the Court remanded the rule to the Middle East (IUCN SSC Antelope must evaluate whether SCI and EWA Service for action consistent with its Specialist Group 2008; Newby and have submitted valid petitions to add, opinion. To comply with the Court’s Wacher 2008 in IUCN Redlist 2012; remove, or reclassify a ‘‘species’’ as that order, we published a proposed rule on Newby et al. 2008 in IUCN Redlist 2012; term is defined in the Act. Our July 7, 2011 (76 FR 39804), to remove 70 FR 52310). evaluation is presented below.

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Evaluation of the Information in the SCI and captive specimens of the same www.regulations.gov and upon request and EWA Petitions species, a reasonable person could from the Branch of Foreign Species (see As previously mentioned, SCI conclude that the petitioned action may FOR FURTHER INFORMATION CONTACT). be warranted. requests delisting of the ‘‘U.S. captive Author populations’’ of the three antelope Finding The primary authors of this notice are species based on the assertion that the We find that the two petitions contain Service committed ‘‘errors’’ in the the staff of the Branch of Foreign substantial information that the FOR FURTHER INFORMATION interpretation of the best scientific and Species (see petitioned action may be warranted. It is CONTACT). commercial data available at the time of important to note that the ‘‘substantial the 2005 determination to list the information’’ standard for a 90-day Authority scimitar-horned oryx, dama gazelle, and finding is in contrast to the Act’s ‘‘best The authority for this action is the addax as endangered in their entirety. scientific and commercial data’’ Endangered Species Act of 1973, as SCI also requests that we ‘‘correct the standard that applies to a 12-month amended (16 U.S.C. 1531 et seq.). Endangered Species Act listing of finding as to whether a petitioned action Dated: September 12, 2012. scimitar-horned oryx, dama gazelle, and is warranted. A 90-day finding is not a addax to specify that only the status assessment of the species and Daniel M. Ashe, populations in the portion of their range does not constitute a status review Director, U.S. Fish and Wildlife Service. outside of the United States are under the Act. Our final determination [FR Doc. 2012–23019 Filed 9–18–12; 8:45 am] classified as endangered.’’ EWA as to whether a petitioned action is BILLING CODE 4310–55–P requests delisting of the U.S. captive- warranted is not made until we have bred populations of the three antelope completed a thorough status review of species on the basis that the Service’s the captive antelopes covered by these DEPARTMENT OF COMMERCE interpretation of the original data for the petitions, which is conducted following listings was also in error, and in a 90-day finding that a petition presents National Oceanic and Atmospheric addition asserts that captive-bred substantial scientific or commercial Administration animals of the three species that are information indicating that the held in the United States are recovered. petitioned action may be warranted 50 CFR Part 600 Essentially, both petitioners request (‘‘substantial 90-day finding’’). Because [Docket No. 120425420–2420–01] separate designation, or legal status, the Act’s standards for 90-day and 12- under the Act for captive animals held month findings are different, as RIN 0648–BB92 within the United States from that of described above, a substantial 90-day members of the same taxonomic species finding does not necessarily mean that Fisheries of the United States; National located in the wild or held in captivity the 12-month finding will conclude that Standard 1 Guidelines; Reopening of elsewhere around the world. the Service has the discretion to treat Public Comment Period The Service completed its listing such specimens differently, or that the determination for the three antelope petitioned action is warranted. It does, AGENCY: National Marine Fisheries species in 2005. In that rulemaking however, mean that the Service will be Service (NMFS), National Oceanic and process, the Service found that a able to consider this question in more Atmospheric Administration (NOAA), differentiation in the listing status of depth and detail. In addition, the Commerce. captive U.S. specimens of these Service will be able to consider the ACTION: Advance notice of proposed antelopes was not appropriate (70 FR question of the appropriate status of rulemaking; reopening of public 52319). While the Service does not have U.S. captive members of the three comment period. an absolute policy or practice with antelope species at the same time as it SUMMARY: NMFS is reopening the respect to whether it can differentiate considers the status of captive comment period on the Advance Notice the listing status of captive and wild chimpanzees in completing a separate of Proposed Rulemaking (ANPR) specimens of the same species, we 12-month finding on a petition to published on May 3, 2012, on potential generally have included wild and eliminate the separate ESA adjustments to the National Standard 1 captive animals together when listing classification of captive and wild Guidelines, one of 10 national standards species. Nevertheless, petitioners assert chimpanzees. The substantial 90-day for fishery conservation and that the treatment by the Service of finding on the chimpanzee petition was management contained in Section 301 chimpanzees in 1992 warrants similar published September 1, 2011 (76 FR of the Magnuson-Stevens Fishery treatment now for these antelope 54423), and a document to reopen the Conservation and Management Act. The species. In that 1992 rulemaking, the comment period was published current comment period is scheduled to Service uplisted chimpanzees in the November 1, 2011 (76 FR 67401). wild to endangered, while retaining the With this substantial 90-day finding, end on September 15, 2012. Because of prior status of threatened for those in we are initiating a rangewide status the importance of NS1 to U.S. fishery captivity. That 1992 action preceded the review of the captive antelopes covered management and the complexity of the adoption by the Service and the by the petitions, and, once it is issues, NMFS feels reopening the National Marine Fisheries Service of the completed, we will make a finding on comment period will provide for a fuller Distinct Population Segment (DPS) whether delisting the U.S. captive range of public input on the NS1 Policy (61 FR 4722, February 7, 1996) specimens of any of these species is Guideline issues. The comment period and case law that has developed under warranted. This finding fulfills any will close on October 12, 2012. the DPS Policy, such as the decision in obligation under 16 U.S.C. 1533(b)(3)(A) DATES: The comment period for the Alsea Valley v. Evans (161F. Supp. 2d and the regulations at 50 CFR 424.14(b). ANPR was published on May 3, 2012 1154 (D.OR)). Nonetheless, because the (77 FR 26238), and closed on September Service has no absolute policy or References Cited 15, 2012. The comment period will practice as to whether it can A complete list of references cited is reopen on September 16, 2012, and differentiate the listing status of wild available on the Internet at http:// remain open through October 12, 2012.

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